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Matthews v. Elk Pioneer Days2/27/1992
and Mrs. Matthews contend "outdoor recreation", as used in the statute, does not include the activity of attending a weekend celebration or watching entertainment on an outdoor stage. The Committee disagrees, arguing application of the immunity to these activities furthers the statutory purpose, as stated in RCW 4.24.200,
to encourage owners or others in lawful possession and control of land and water areas . . . to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon. . . .
(Italics ours.)
The issue presented in this appeal is one of first impression in Washington. The Committee cites Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 431 N.W.2d 696 (Ct. App.), review denied, 147 Wis. 2d 889 (1988). There, the plaintiff was injured when he stepped into a hole on the grounds of the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions Club. The court held the statutory immunity applied. It relied upon the statement of legislative intent that " where substantially similar circumstances or activities [to those enumerated in the statute] exist, this legislation should be liberally construed in favor of property owners to protect them from liability". Hall, at 488 (quoting section 1 of Wis. Act 418). The court concluded
at page 488 that a fair is "substantially similar" to several of the examples of the kinds of activities set forth in the definition of recreational activity: "'nature study'", "'sight-seeing,'" as well as "'any other . . . educational activity.'"
Hall is distinguishable because the Wisconsin statute differs significantly from Washington's recreational use statute. RCW 4.24.200-.210 does not provide for a policy of liberal construction in favor of property owners. Nor is festival activity similar to the examples of outdoor recreation given in the Washington statute.
Absent a stated direction of liberal construction, RCW 4.24.210 should be strictly construed. RCW 4.24.210 is in derogation of the common law rules of liability of landowners and occupiers. Statutes in derogation of the common law are strictly construed and no intent to change that law will be found unless it appears with clarity. McNeal v. Allen, 95 Wash. 2d 265, 269, 621 P.2d 1285 (1980).
We therefore look to the wording of RCW 4.24.210. The statute provides immunity to landowners or occupiers who allow the public to use their land for "outdoor recreation". This general provision is followed by a list of specific examples. Under the statute, the term "outdoor recreation" includes but is not limited to these examples.
In Villanova v. American Fed'n of Musicians, Local 16, 123 N.J. Super. 57, 301 A.2d 467, cert. denied, 63 N.J. 504, 308 A.2d 669 (1973), the court employed the rule of ejusdem generis in deciding whether a county park commission was immune from liability to a musician who was injured during a free public concert at the park. Under the rule of ejusdem generis, the connotation of a general word may be restricted to a sense analogous to the specific words. Villanova, at 59. The New Jersey statute provided landowner immunity from liability arising from a plaintiff's "hunting, fishing, trapping, hiking, horseback riding or training of dogs" and "'other outdoor sport, game and recreational activity'". Villanova, at 58-59. The court held at page 59:
Generally speaking, the activities specifically enumerated by the Legislature are more physical than not; are of a nature
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