There is a common law doctrine that local governments are generally liable for injuries sustained on their property in the same way a private landowner would be liable. The level of liability and duty was dependent on the plaintiff’s status as an invitee, licensee, or trespasser. In 1966, the ‘invitee’ status was expanded to include public invitee; where one is invited to enter and remain on property as a member of the public and the property is held open for public use.

You can imagine where that could create some liability issues?

In response, the state Legislature in 1967, limited the liability that was expanded by the Court the prior year. Washington’s recreational use immunity statute provides that “any public or private landowners . . . in lawful possession and control of any lands . . . who allow members of the public to use [their lands] for the purposes of outdoor recreation . . . shall not be liable for unintentional injuries to such users.” RCW 4.24.210(1). Recreational use immunity is an affirmative defense, so the landowner bears the burden of proving entitlement to that immunity.

The immunity is not limitless.

Under RCW 4.24.210(4)(a), a recreational landowner remains liable “for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.” “[A]ll four terms (known, dangerous, artificial, latent) modify ‘condition,’ not one another,” and so all must be present for the exception to apply. To prove that the statutory exception does not apply, a landowner need show that the injury-causing condition lacks only one of those characteristics.

In the case before the Washington State Supreme Court, the decision turned on the definition of “dangerous” and “latent” Ultimately, the majority opinion redefined the previously very narrow definition of “latent” (standing near) by stating “The proper focus of the common law test regarding latency is on whether the injury-causing condition is readily apparent to the general class of recreational users, and this requires consideration of the condition from the typical recreational user’s perspective. Therefore, whether public or private, limitations on liability can only be overcome if an invitee is injured by a known, dangerous, artificial, and latent condition.”

Your Washington State Attorneys

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