City not liable for injuries to BMX rider, riding in City Park on features built without city’s consent

The duty owed by the city to features, structures and changes to the park that the city did not make was low and protected by the recreational use statute in this case.

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

State: Washington, Court of Appeals of Washington, Division One

Plaintiff: Jon L. Wilkerson

Defendant: The City of SeaTac

Plaintiff Claims: City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.”

Defendant Defenses: No Duty, and Washington Recreational Use Statute

Holding: For the City

Year: 2012

This is very sad; the plaintiff ended up a quadriplegic because of the accident. This also explains the lawsuit. There is so much money at stake when someone is rendered paralyzed or a quadriplegic that there is bound to be a lawsuit.

In this case, the plaintiff had just moved to the area. He inquired at a local shop where he could practice jumping in anticipation of his trip to Whistler in BC with some friends. The bike shop sent him to Des Moines Trail Park.

The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

The plaintiff considered himself an excellent mountain biker and BMX rider. He was used to doing ramps and jumps.

The area was built by people other than the city. It was known as “the softies” by locals. Around 5 pm one day, the plaintiff went to the park to ride. He rode several jumps and scouted them all out before jumping them. He picked out a gap jump, deciding other jumps were outside of his skill set.  While riding the gap jump he crashed and rendered himself a quadriplegic.

The plaintiff could not move and laid calling for help for several hours before passing out.  Approximately 1 AM the next day the city reported the plaintiff’s car in the parking lot. Around 11 am, two cyclists found the plaintiff and notified EMS.

While in a rehabilitation hospital the plaintiff stated: “…that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he” ‘was a bit out of practice’ ” and ” ‘a little too bold.’

The plaintiff filed this lawsuit against the city. The trial court dismissed the claims based on the city’s motion for summary judgment, and this appeal followed.

Analysis: making sense of the law based on these facts.

The appellate court first looked at the defense provided by the Recreational Use Statue of Washington. Chapter 4.24  Special Rights of Action and Special Immunities.

Under Washington’s law a landowner is immune from liability for injuries upon his land unless the injury is “caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.”

To establish the City was not immune from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis,

The issue then came down to whether or not the jumps were a latent condition. There are four elements the plaintiff must prove to show the jumps were a latent condition.

Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. “If one of the four elements is not present, a claim cannot survive summary judgment.”

The definition of latent under Washington Law is “means” ‘not readily apparent to the recreational user.”

In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent.

The plaintiff’s experts argued that the approach which was described as an S-curve was a latent condition. However, the court distinguished that argument by stating there was a difference between a latent condition and a patent condition that had latent dangers.

The condition itself must be latent.” While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.”

Nor did the fact that the plaintiff did not appreciate the risk caused by the approach change the condition of the land.

The plaintiff then argued that his secondary injury, lying in the park all-night, suffering hypothermia that required additional surgeries and hospitalizations were not covered by the recreational use statute.

Secondary injuries were not covered under Wisconsin’s Recreational Use Statute. However, the language in the Wisconsin statute differs from the language in the Washington statute.

By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

The court held the immunity provided by the Washington Recreational Use Statute was broadly written and covered the secondary injuries the plaintiff suffered.

The plaintiff then argued the city was willful and wanton or intentional because the city knew that other cyclists had been injured at the park. This argument stemmed from the plaintiff asserting that “that the government’s failure to” ‘put up signs and ropes’ ” was deliberate and the government” ‘knew or should have known’ ” of the dangerous condition.”

However, the court found that this did not rise to the level of willful or wanton or intentional negligence.

Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

The plaintiff next argued the defendant had a duty to supervise and patrol the park.

Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

However, this argument also failed because if there was a duty, it was owed to the general public, not to the plaintiff specially.

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care.

The appellate court agreed with the trial court, and the dismissal of the lawsuit was affirmed.

So Now What?

It is sad when any activity renders someone, especially a young person, a quadriplegic. However, sometimes, you have to accept the fact you screwed up, or misjudged the jump, as the plaintiff admitted to in the rehab hospital and live with your mistakes.

If you are such a person, but as much disability, health and life insurance that you can afford, it may be the only way to stay somewhat better off than what the government can provide.

From the stand point of the defendant city, you need to understand your duty and your level of duty to features, additions or other things that are added to a park or city property without your permission or without you exercising control over the situation.

Not all cities can escape liability when a group of people add to a park.

 

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