 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nielsen v. Port of Bellingham7/30/2001
way onto a road leading to Diablo Dam 'for the dual purpose of looking at the scenery and getting gas'. Id. at 604. The roadway across the dam was under the control of Seattle City Light pursuant to its license from the United States, which required that Seattle City Light ''in no way prevent the use of . . . the reservoirs and project area for boating, fishing and other recreational purposes by the public when and to the extent that such public use does not directly interfere with power use.'' Id. at 605 (quoting from a trial exhibit). Seattle City Light did not operate the resort where the plaintiff intended to purchase gasoline, and it charged no fees for use of the roadway or any of the outdoor recreational uses in the vicinity. The roadway across the dam led only to the resort and abutting lands left open by Seattle City Light for public recreational use.
The Gaeta court was careful to distinguish the facts in that case from those in Smith v. Southern Pac. Transp. Co., Inc., 467 So.2d 70 (La. Ct. App. 1985). In Smith, a commercial truck driver was injured as the result of the city's failure to post a sign warning of the low clearance of a railroad overpass while driving on a roadway that happened to run through a city park. The roadway was built and maintained primarily for commercial use, as opposed to recreational use. See Gaeta, 54 Wn. App. at 608. Here, from any reasonably objective measure of the Port's 'standpoint', the purpose of its marina at Squalicum Harbor is commercial -- the mooring of fishing boats and pleasure craft for a fee. The facts of this case are more like Smith than Gaeta. We decline to extend our statement in Gaeta to the facts of the instant appeal.
This case also bears some factual similarity to Plano v. City of Renton, 103 Wn. App. 910, 14 P.3d 871 (2000), wherein this court held that the city of Renton was not immune from suit for injuries suffered by a moorage customer on a ramp leading to a moorage dock owned by the city, because the city received a moorage fee for the use of the property. As does the Port here, the City of Renton argued that it was immune from suit because it allowed park users who had been charged no fee to walk on the floats and gangways, and it also allowed boaters to moor for up to four hours during the day without paying a fee. We said: 'But Washington's statute does not say that a landowner can have immunity so long as the lands or water areas are available free of charge some of the time. The statute simply states that there is no immunity if the owner 'charges a fee of any kind.'' Id. at 914. We noted that for immunity to attach, '{a} landowner must only show that it charges no fee for using the land or water area where the injury occurred,' but concluded that 'the metal ramp where Plano fell is a necessary and integral part of the moorage. The reason why the two ramps and the connecting gangways exist is to provide access to the floating dock, a fee-generating portion of the park.' Id. at 915. Here, the reason the float at Gate One exists is to provide moorage for commercial fishing boats and one 'live aboard' -- the Port's paying customers.
In sum, the recreational use statute provides the Port with no immunity from Nielsen's suit, and the trial court properly denied the Port's motions for summary judgment and judgment notwithstanding the verdict. Affirmed.
The remainder of this opinion lacks precedential value and will not be published in the Washington Appellate Reports but will be filed of public record in accord with RCW 2.06.040.
PUBLIC DUTY DOCTRINE
The Port additionally argues that the court's denial of its motion for dismissal based on the public duty doctrine
Page 1 2 3 4 5 6 7 8 9 10 11 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|