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860 Wash. 285 PACIFIC REPORTER, 3d SERIES
¶ 26 The above analysis does not say that the preamendment conduct establishes a pri- ma facie claim in contravention of retroactivi- ty concerns. Rather, the preamendment conduct establishes that the ‘‘angry man’’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment. We recognize that a single act of harassment is rarely enough to establish a prima facie claim, but this case presents a unique set of facts as discussed above. Regardless, whether the prima facie claim is established is for the trial court to decide on remand if summary judgment is presented again. To that end, additional discovery may be appro- priate in order to determine if any other actions occurred postamendment.
¶ 27 The University contends the ‘‘angry man’’ comment is not sufficiently related to the preamendment conduct and relies on a recent Court of Appeals decision, Crownover v. Dep’t of Transp., 165 Wash.App. 131, 265 P.3d 971 (2011), review denied, 173 Wash.2d 1030, 274 P.3d 374 (2012), to support its argument. In Crownover, the Court of Ap- peals affirmed dismissal of a plaintiff’s hostile work environment claim where the only time- ly event was the supervisor’s comment to his maintenance crew about ‘‘spending quality time together’’ at a work site. Id. at 144–45, 265 P.3d 971. The court reasoned that this seemingly innocuous comment simply could not anchor the supervisor’s previous sexually charged statements. Id. at 145, 265 P.3d 971.
¶ 28 However, Crownover is distinguish- able. Unlike the comment in Crownover, the ‘‘angry man’’ comment is similar to and relat- ed to the previous comments at issue, specifi- cally that Lukehart had anger management issues and kept a gun in his vehicle. Crown- over, therefore, does not alter our analysis.
S 278¶ 29 The ‘‘angry man’’ comment, when considered in light of the preamendment con- duct, is sufficient to preclude summary judg- ment, presuming Lukehart made the com- ment after June 7, 2006.
CONCLUSION
¶ 30 The WLAD amendment prohibiting discrimination based on sexual orientation is
not retroactive. Therefore, the conduct oc- curring preamendment, June 7, 2006, is not recoverable. Nevertheless, because of the unique nature of a hostile work environment claim, this unrecoverable conduct is admissi- ble as background evidence to give context to any postamendment discriminatory conduct. In this case, assuming Lukehart’s ‘‘angry man’’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment. Consequently, we affirm only the Court of Appeals reversal of summary judgment, and we reverse its reasoning, which allowed recovery for pream- endment conduct. We remand the case for further proceedings consistent with this opin- ion.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, TOM CHAMBERS, MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, CHARLES K. WIGGINS, and STEVEN C. GONZ iALEZ, Justices.
,
175 Wash.2d 279
Gavin J. CREGAN, a married man, Respondent,
v.
FOURTH MEMORIAL CHURCH, a non- profit Washington corporation, d/b/a
Riverview Bible Camp, Petitioner.
Fourth Memorial Church, a nonprofit Washington corporation, d/b/a Riv-
erview Bible Camp, Plaintiff,
v.
Beats & Rhythms, a Washington corporation, Defendant.
No. 86835–2.
Supreme Court of Washington, En Banc.
Sept. 13, 2012.
Background: Group member brought premises liability action against landowner
861Wash.CREGAN v. FOURTH MEMORIAL CHURCH Cite as 285 P.3d 860 (Wash. 2012)
after member was injured during group’s stay at camp. The Superior Court, Spo- kane County, Linda G. Tompkins, J., granted summary judgment in favor of member. Landowner appealed.
Holding: The Supreme Court, En Banc, C. Johnson, J., held that recreational use immunity was not available to landowner, who otherwise operated an admission fee- based camp, but allowed a group access for no charge. Affirmed.
1. Negligence O1036
At common law, a landowner’s duty de- pends upon the plaintiff’s status as an invi- tee, a licensee, or a trespasser.
2. Negligence O1562
Because recreational use immunity is an affirmative defense, the landowner has the burden of proving that it applies.
3. Appeal and Error O893(1)
The Supreme Court reviews summary judgment orders and questions of statutory interpretation de novo.
4. Statutes O188
Where a statutory term is undefined, the Supreme Court applies the plain meaning of the word and may consult a dictionary.
5. Negligence O1194
Landowners who open their lands to the public may be able to restrict some access and still qualify for recreational use immuni- ty, but the line between what is considered ‘‘public’’ despite some restriction and only private use will depend on the specific facts at hand. West’s RCWA 4.24.210.
6. Negligence O1194
The facts surrounding access are viewed objectively when determining whether a landowner is entitled to recreational use im- munity. West’s RCWA 4.24.210.
7. Negligence O1194
Permissible restriction pursuant to re- creational use immunity could include limit-
ing the types of recreational activity allowed on the land. West’s RCWA 4.24.210.
8. Negligence O1194
A landowner may allow public access only during nonbusiness times and be enti- tled to recreational use immunity. West’s RCWA 4.24.210.
9. Negligence O1194
To qualify for recreational use immunity, a landowner cannot restrict access by dis- criminating against the user based on per- sonal traits. West’s RCWA 4.24.210.
10. Negligence O1194
For purposes of recreational use immu- nity, when a landowner has a selective invita- tion to enter the land, the land is no longer open to the public, that is, for all to use or enjoy. West’s RCWA 4.24.210.
11. Negligence O1194
Recreational use immunity statute did not apply under circumstances in which the landowner, who otherwise operated an ad- mission-fee-based camp, allowed a group ac- cess for no charge, during which a member of the group was injured, where landowner allowed only secular or Christian groups onto the property and generally charged for ac- cess, and all other members of the public were excluded; camp was not ‘‘open to the public’’ for purposes of statute. West’s RCWA 4.24.200.
See publication Words and Phrases for other judicial constructions and def- initions.
Daniel Edward Huntington, Richter–Wim- berley PS, Spokane, WA, for Respondent.
Matthew Thomas Ries, Eric Roche Byrd, Stamper Rubens P.S., Spokane, WA, for Pe- titioner.
Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ah- rend Albrecht PLLC, Ephrata, WA, Amicus Curiae on behalf of Washington State Associ- ation.
862 Wash. 285 PACIFIC REPORTER, 3d SERIES
C. JOHNSON, J.
S 281¶ 1 This case involves whether the re- creational use immunity statute, RCW 4.24.200–.210, applies under the circum- stances where a landowner, who otherwise operates an admission fee-based camp, allows a group access for no charge. During the group’s stay at the camp, the plaintiff was injured when riding a slide on the property. The camp asserted recreational use immuni- ty as a defense to the claim. On summary judgment, the trial court ruled that the camp was not immune from liability under the statute because it normally charged fees for the recreational use. This interlocutory ap- peal was certified after the trial court found there was likely a substantial ground for difference of opinion. We affirm and hold that recreational use immunity is not avail- able under these circumstances because the property is not open to the general public.
FACTS
¶ 2 Riverview Bible Camp is privately owned by Fourth Memorial Church, a non- profit organization and the petitioner in this case. Riverview offers a wide range of ad- venture activities, including a high rope course, a 40–foot outdoor climbing wall, ‘‘zip- lining,’’ archery, paintball, a large water trampoline, an outdoor skate park, and a S 282multilane slide. Riverview Bible Camp, http://www.riverviewbiblecamp.com/activities. php# (last visited Aug. 31, 2012). It is finan- cially viable through rental fees, donations, and assistance from Fourth Memorial and is promoted through outreach, flyers, bro- chures, DVDs (digital video disks), and a web site. Generally, only secular or Christian groups are permitted to rent Riverview. In- dividuals and walk-ins are not allowed. In 2008, Riverview allowed an organization named ‘‘Beats & Rhythms’’ to use the facility at no charge under a rental and indemnity agreement. It was the only group granted a fee waiver in 2008 and 2009.
¶ 3 During Beats & Rhythms’ stay at Riv- erview, respondent Gavin Cregan was with the group and served as the group’s volun-
teer nurse. On the first day of the camp program, Cregan and others rode on burlap bags down the ‘‘Giant Slide,’’ a multilane slide originally built for the Spokane Expo 874 world’s fair. Cregan rode the slide two or three times, using a different lane each time. Clerk’s Papers at 5. On his last trip down, Cregan’s legs lifted off the slide after riding over the first hump. His left foot landed off the burlap bag, caught the slide, and rolled under his leg. As a result, Cre- gan suffered fractures, leaving him with per- manent motion restriction in his left leg and ankle.
¶ 4 Cregan brought a premises liability action against Fourth Memorial. Fourth Memorial raised an affirmative defense, as- serting it was immune from liability under the recreational use immunity statute, RCW 4.24.200–.210. Fourth Memorial also cross- complained against Beats & Rhythms, alleg- ing that if found liable, it was entitled to indemnification from the group pursuant to their rental and indemnity agreement.
¶ 5 Cregan and Fourth Memorial filed cross-motions for summary judgment on the issue of Fourth Memorial’s statutory immu- nity defense. The trial court granted Cre- gan’s motion, striking the immunity defense, and denied Fourth Memorial’s motion. The trial court ruled that immunity was S 283unavailable as a matter of law because Fourth Memorial charged fees for the pre- cise same use that Beats & Rhythms and Cregan were afforded.
¶ 6 Fourth Memorial sought interlocutory appeal of that decision. The trial court certi- fied for discretionary review the question of whether RCW 4.24.200–.210 applied to this case. The appeal was transferred from the Court of Appeals to this court after we granted direct discretionary review.1
ANALYSIS
[1–3] ¶ 7 Washington’s recreational use statute, RCW 4.24.210, in relevant part, pro- vides:
1. Washington State Association for Justice Foun- dation submitted an amicus brief in support of
Cregan.
863Wash.CREGAN v. FOURTH MEMORIAL CHURCH Cite as 285 P.3d 860 (Wash. 2012)
(1) Except as otherwise provided TTT any public or private landowners, TTT or others in lawful possession and control of any lands whether designated as resource, ru- ral, or urban, or water areas or channels and lands adjacent to such areas or chan- nels, who allow members of the public to use them for the purposes of outdoor re- creation, which term includes, but is not limited to TTT hunting, fishing, camping TTT without charging a fee of any kind therefor, shall not be liable for unintention- al injuries to such users.
(Emphasis added.) The purpose of the stat- ute is to encourage landowners to open their lands to the public for recreational use by limiting their liability toward persons enter- ing thereon. RCW 4.24.200. This statute modified common law premises liability re- garding public invitees.2 Because recreation- al use immunity is an affirmative defense, the landowner has the burden of proving it ap- plies. On sumSmary284 judgment, the trial court ruled immunity was unavailable as a matter of law. We review summary judg- ment orders and questions of statutory inter- pretation de novo.
¶ 8 Significant here, to be immune under RCW 4.24.210(1) the landowner must estab- lish that the use (1) was open to members of the public (2) for recreational purposes and (3) no fee of any kind was charged. Both parties agree that camping is a recreational use falling within the statute’s scope. The parties disagree as to whether Fourth Me- morial, as a matter of law, can establish that it meets the other two requirements.
¶ 9 To establish the public requirement, Fourth Memorial characterizes Riverview’s purposes as commercial recreational and public recreational. Fourth Memorial argues
that when property has different purposes, courts have focused on the landowner’s use at the particular time of the injury. It con- tends Cregan was a public user because he was charged no fee. Fourth Memorial then concludes that because the land was being used publicly, for recreational use, and for free at the time of the injury, recreational use immunity applies. Although Fourth Me- morial relies on several cases for support, none are helpful here. The cases either in- volved nonrecreational versus recreational uses 3 or recreational use where no fee was ever charged.4 Unlike in those cases, here, Fourth Memorial operates a commercial re- creational facility, contending its secondary use is as a public facility. It distinguishes its commercial activities and argued ‘‘public’’ use is based solely on whether a fee was charged. This incorrectly assumes S 285that free access alone qualifies the injured person as a mem- ber of the public.
[4] ¶ 10 The public and free-use require- ments under RCW 4.24.210(1) are separate inquiries. Key to resolving this case is whether Riverview was open to the public. ‘‘Public’’ is not defined in the statute. Where a term is undefined, we apply the plain meaning of the word and may consult a dictionary. State v. Gonzalez, 168 Wash.2d 256, 263, 226 P.3d 131 (2010). ‘‘[P]ublic’’ means ‘‘[o]pen or available for all to use, share, or enjoy.’’ Black’s Law Dictionary 1348 (9th ed. 2009). Fourth Memorial ar- gues it is required to open its land only to members of the public and not the entire general public at all times for the statute to apply. Meaning, a landowner is not required to let everyone onto its land to have statuto- ry immunity. But the inquiry is whether
2. At common law, a landowner’s duty depends upon the plaintiff’s status as an invitee, a licen- see, or a trespasser. Traditionally, Washington recognized only business invitees, but we broad- ened the invitee classification to include the ‘‘ ‘public invitee,’ ’’ defined as ‘‘ ‘a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.’ ’’ McKinnon v. Wash. Fed. Sav. & Loan Ass’n, 68 Wash.2d 644, 650, 414 P.2d 773 (1966) (quoting Restatement (Sec- ond) of Torts § 332 (1965) and adopting its broader definition).
3. Home v. N. Kitsap Sch. Dist., 92 Wash.App. 709, 965 P.2d 1112 (1998) (football field used for school events and public recreation when not in use for school events); Widman v. Johnson, 81 Wash.App. 110, 912 P.2d 1095 (1996) (road used for logging and recreation); Gaeta v. Seattle City Light, 54 Wash.App. 603, 774 P.2d 1255 (1989) (commercial or recreational).
4. McCarver v. Manson Park & Recreation Dist., 92 Wash.2d 370, 377, 597 P.2d 1362 (1979) (statute applies to land used exclusively for free recre- ation, such as public park).
864 Wash. 285 PACIFIC REPORTER, 3d SERIES
Fourth Memorial allowed Beats & Rhythms to use its property as a member of the public. If the property is not open to the public, then immunity does not attach.
[5–10] ¶ 11 Landowners who open their lands to the public may be able to restrict some access and still qualify for recreational use immunity, but the line between what is considered ‘‘public’’ despite some restriction and only private use will depend on the spe- cific facts at hand. The facts surrounding access are viewed objectively. See, e.g., Nielsen v. Port of Bellingham, 107 Wash. App. 662, 668, 27 P.3d 1242 (2001). Permis- sible restriction could include limiting the types of recreational activity allowed on the land. For example, a landowner that per- mits the public to hike or picnic may wish to prohibit the public from hunting on its land. A landowner may also allow public access only during nonbusiness times. See Home v. N. Kitsap Sch. Dist., 92 Wash.App. 709, 712, 965 P.2d 1112 (1998) (public permitted to use field except during school events). In all of these examples, the land is still held open to the public. (That is, anyone is welcome to hike or picnic even though hunting is not allowed; or anyone is welcome to use the football field S 286during permitted hours.) To qualify for immunity under the statute, how- ever, a landowner cannot restrict access by discriminating against the user based on personal traits.5 When an owner excludes people in this way—that is, has a selective invitation to enter the land—the land is no longer open to the public, that is, for all to use or enjoy.
[11] ¶ 12 Here, the facts establish that the camp is not open to the public. The rental policy restricts the users based on their religious affiliation. It is undisputed that Fourth Memorial allows only secular or Christian groups onto Riverview and gener- ally charges for access. All other members of the public are excluded. This policy es- tablishes that not everyone in the community had the same opportunity to enter and use
the property. Beats & Rhythms used the camp as a private group. Free use did not turn the group into a public user. Therefore, because Fourth Memorial fails to establish Riverview is open to the public, we hold that recreational use immunity is not available.6
CONCLUSION
¶ 13 Fourth Memorial allows only select groups to privately use its camp. The policy behind the statute is to encourage landown- ers to open their land for free public recre- ational use. That is not the situation here. We affirm the trial court’s ruling, holding that recreational use immunity does not ap- ply.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, CHARLES K. WIGGINS, and STEVEN C. GONZ iALEZ Justices.
,
Doug FELLOWS, as Personal Repre- sentative of the Estate of Jordan
Gallinat, Petitioner,
v.
Daniel J. MOYNIHAN, M.D.; Kathleen Hutchinson, M.D.; and Southwest Washington Medical Center, Respon- dents.
No. 85382–7.
Supreme Court of Washington, En Banc.
Argued May 15, 2012.
Decided Sept. 20, 2012.
Background: Litigation guardian of child who suffered serious liver and renal inju-
5. By this we do not mean reasonable restrictions on the user will never be appropriate. For ex- ample, a landowner may allow minor children on his or her land only if accompanied by an adult. Such restrictions or conditions may be
permitted, provided the restrictions are not, as here, discriminatory.
6. Having determined this, we find it unnecessary to reach the fee issue.
