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Cultee v. City of Tacoma5/7/1999
Christine Cultee appeals summary judgment dismissal of her wrongful death action against the City of Tacoma for the death of her five-year-old daughter Reabecka, who drowned while riding her bike at Nalley Ranch. Holding that there are issues of material fact that preclude application of Washington's recreational immunity statute, we reverse and remand for trial.
FACTS
I. HISTORY
In 1992, the City of Tacoma purchased the Nalley Ranch, situated within the Skokomish Reservation in Mason County. A levee along the north edge of low-lying land on the east side of the ranch held back the waters of the Hood Canal. To improve movement throughout the farm, the City rebuilt a series of elevated roads crisscrossing the property. While the levee was intact, the roads were untouched by the tidal waters outside the levee.
By resolution in 1994, the City opened most of its property to public recreational use, with the express purpose of invoking the protections of Washington's recreational use statute, RCW 4.24.210. The City operated the Nalley Ranch as a working farm until July 10, 1995, with an independent contractor raising and harvesting hay grown on the property. Two caretakers, Cindy and Robert Webb, lived on the property.
In December 1994, the Hood Canal levee broke and tidal waters flooded part of the east side of the farm at high tide. Although initially planning to repair the levee, the City decided to allow the affected part of the farm to return to its natural state. In the meantime, the City planned to install a gate on the west side of the farm to block access to the east side in order to protect both human beings and the environment. Nevertheless, members of the Skokomish Tribe were permitted to cross onto the east side of the farm to check their fish eddies; they generally used the so-called "Indian access road" to cross the east side of the farm.
II. DROWNING
Christine Cultee and her five-year-old daughter Reabecka had visited the Webbs at the Nalley Ranch caretakers' compound "once or twice" in the past. During these visits, Christine told Reabecka to "{s}tay around the house and don't go to the water" because Reabecka could not swim. Although Christine had not seen the destruction, she had heard Cindy and Robert talk about the tidal waters washing away most of the farm's roads. Cindy asserted she had previously told Christine that children were not allowed to go near the watery locations on the farm.
On June 23, 1995, Reabecka was visiting her grandfather, Lawrence Kenyon, who lived near the Nalley Ranch. Reabecka rode her bicycle to the farm with her cousins, twelve-year-old Jesse Cultee and ten-year-old Darryl Kenyon; all three children were members of the Skokomish Tribe. Jesse Cultee testified that the three children crossed the bridge to the east side of the farm and rode further into the farm property on the Indian access road.
At a point where there was no water on the road, the children stopped to check the water's depth along the side of the road and estimated it to be "two to five feet." The children continued riding, not stopping until the road was covered by approximately two to four inches of muddy water. They rode about eight feet through the water on the road before dismounting their bikes to turn around. As Reabecka was mounting her bike, "she was too close to the edge and she fell in." At this point the adjacent fields were flooded with several feet of water.
Neither Darryl nor Jesse could swim. Jesse tried to reach Reabecka, but he did not enter the water because it "looked too deep." Darryl rode his bike for help and reached Cindy Webb. Cindy he
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