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782 Wash. 372 PACIFIC REPORTER, 3d SERIES

6. Negligence O1195 A landowner may charge a fee to use

part of its land and maintain immunity for recreational use of the remainder of the land. West’s RCWA 4.24.210.

7. Negligence O1195 To maintain recreational use immunity

and charge a fee, a landowner must only show that it charges no fee for using the land or water area where the injury occurred. West’s RCWA 4.24.210.

8. Negligence O1195 A landowner is not entitled to recre-

ational use immunity when the place that the injury occurred is a necessary and integral part of the fee-generating area. West’s RCWA 4.24.210.

9. Appeal and Error O223 To the extent the trial court actually

made a finding of fact by using word ‘‘find- ing,’’ plaintiff did not object, and therefore waived issue of whether court made finding of fact when granting summary judgment.

10. Judgment O181(2) The use of the word ‘‘finding’’ does not

transform an issue of law into an issue of fact, for purposes of determining whether a material issue of fact precludes summary judgment.

Bradley W. Andersen, Landerholm, PS, Vancouver, WA, for Appellant.

Christopher Joseph Kerley, Evans, Craven & Lackie, P.S., Spokane, WA, for Respon- dent.

SUTTON, J.

S 12¶ 1 John A. Hively appeals the trial court’s order granting summary judgment, denying reconsideration, and dismissing his negligence claim against the Port of Skama- nia County (the Port) for injuries caused by his fall in one of the Port’s parks, Teo Park. Hively argues that the trial court erred in ruling that the Port is entitled to immunity under the recreational use statute, former RCW 4.24.210(1) (2009),1 because material

issues of fact exist as to whether the place that he fell was sufficiently attenuated S 13from the fee-generating areas of the Port’s properties and whether there was a latent condition. Because we disagree, we affirm the trial court’s order granting summary judgment and dismissal.

FACTS

¶ 2 Hively traveled to Teo Park in Steven- son, Washington, a property owned by the Port on the Columbia River waterfront. Teo Park is physically connected to two other Port properties, Bob’s Beach and Stevenson Landing, by an asphalt path. There is a restroom along this path, which has a second path that is not at issue here that also pro- vides access to the restroom.

¶ 3 Hively headed down the asphalt path, which was shaded by trees. After a few steps, Hively tripped and fell onto the path, injuring himself. In his deposition testimo- ny, Hively stated that when he fell he was looking straight ahead, and he did not see the pothole due to a shadowed area created by the bright sun. Hively expected that the path would be hazard-free, and before he fell he did not notice any potholes or irregulari- ties on the path.

¶ 4 The Port does not charge a fee to enter Teo Park, Bob’s Beach, or Stevenson Land- ing, and they are open to the public. The restroom is also open to the public, except during the winter season when it is closed. Occasionally, the Port rents Teo Park to private parties for a fee, but the path along the waterfront and the restroom remain open to the public while the park is rented. The Port also charges cruise ships a fee to dock at the pier at Stevenson Landing, but again the pier remains accessible to the public without a fee even when ships are docked there.

¶ 5 The path along the waterfront on the way to the restroom, where Hively fell, was paved with asphalt in 1997, but over time the surface of the path had become broken and irregular. The Port knew about the condi- tion of the path, but did not consider it to be dangerous because the S 14irregularities were

1. RCW 4.24.210 was amended in 2011 and 2012, although those changes do not have any effect on

our analysis.

783Wash.HIVELY v. PORT OF SKAMANIA COUNTY Cite as 372 P.3d 781 (Wash.App. Div. 2 2016)

‘‘open and obvious and consistent with other rough or natural trails on Port park proper- ty.’’ Clerk’s Papers at 54(CP). Prior to Hively’s fall, the Port had not installed signs warning of the path’s conditions. Hively’s lawsuit was the first time the Port had heard of a person tripping on this particular path.

¶ 6 Hively sued the Port for negligence. The Port moved for summary judgment, ar- guing that it was entitled to recreational use immunity under former RCW 4.24.210. Hively cross-moved for summary judgment. The trial court granted the Port’s motion for summary judgment, denied Hively’s motion, dismissed Hively’s claim with prejudice, and denied Hively’s motion for reconsideration. Hively appealed.

ANALYSIS

I. STANDARD OF REVIEW

¶ 7 We review a trial court’s grant of sum- mary judgment de novo and engage in the same inquiry as the trial court. Wash. Fed. v. Harvey, 182 Wash.2d 335, 339, 340 P.3d 846 (2015). Summary judgment is proper where, viewing the facts in the light most favorable to the nonmoving party, ‘‘the plead- ings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genu- ine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’’ CR 56(c). When the sup- porting facts are undisputed, the trial court may determine immunity as a question of law. Camicia v. Howard S. Wright Constr. Co., 179 Wash.2d 684, 693, 317 P.3d 987 (2014). We review a trial court’s ruling on a motion for reconsideration for abuse of dis- cretion. Landstar Inway, Inc. v. Samrow, 181 Wash.App. 109, 120, 325 P.3d 327 (2014).

II. RECREATIONAL USE IMMUNITY

¶ 8 Hively argues that the Port is not entitled to summary judgment because the Port is not immune from suit S 15under the recreational use immunity statute, former RCW 4.24.210. We disagree.

[1, 2] ¶ 9 Under former RCW 4.24.210, landowners who allow the public to use their land for recreational purposes without charg- ing a fee are immune from suit for uninten- tional injuries that occur on the land. For- mer RCW 4.24.210(1) creates an exception to common law invitee premises liability.2 Ca- micia, 179 Wash.2d at 694, 317 P.3d 987. The purpose of recreational use immunity is to encourage landowners and those in lawful possession of land to make it available to the public for recreational purposes by limiting their liability. RCW 4.24.200; Jewels v. City of Bellingham, 183 Wash.2d 388, 394, 353 P.3d 204 (2015).

[3–5] ¶ 10 To be entitled to immunity un- der the recreational use statute, the landown- er must prove that the land in question is (1) open to members of the public, (2) for recre- ational purposes, and (3) for which ‘‘ ‘no fee of any kind [is] charged.’ ’’ Camicia, 179 Wash.2d at 695–96, 317 P.3d 987 (quoting Cregan v. Fourth Mem’l Church, 175 Wash.2d 279, 284, 285 P.3d 860 (2012)). The landowner bears the burden to prove entitle- ment to immunity because recreational use is an affirmative defense. Camicia, 179 Wash.2d at 693, 317 P.3d 987. Hively con- cedes that the Port meets the first and sec- ond elements, but argues that the Port fails to meet the third element because the Port charges a fee to cruise ships to dock at Stevenson Landing and to parties who wish to exclusively rent Teo Park.

[6–8] ¶ 11 A landowner may charge a fee to use part of its land and maintain immunity for recreational use of the remainder of the land. Plano v. City of Renton, 103 Wash. App. 910, 914, 14 P.3d 871 (2000). To main- tain recreational use immunity and charge a fee, ‘‘[a] landowner must only show S 16that it charges no fee for using the land or water area where the injury occurred.’’ Plano, 103 Wash.App. at 915, 14 P.3d 871. A landowner is not entitled to immunity when the place that the injury occurred is a ‘‘necessary and

2. Any public or private landowners or others in lawful possession and control of water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, including but not limited to camping, picnicking,

swimming, hiking, bicycling, or viewing or enjoy- ing scenic sites without charging a fee of any kind, shall not be liable for unintentional injuries to such users. See former RCW 4.24.210(1) (em- phasis added).

784 Wash. 372 PACIFIC REPORTER, 3d SERIES

integral part’’ of the fee-generating area. Plano, 103 Wash.App. at 915, 14 P.3d 871. It is undisputed that the Port does not charge a fee for public use of either the path where Hively fell or the restroom to which the path led.

¶ 12 Hively relies on Plano to argue that the path where he fell was a necessary and integral part of the Port’s fee-generating ar- eas (i.e., the pier and Teo Park itself when it is rented exclusively) as a matter of law. In Plano, anyone who used the dock, the fee- generating area in that case, was required to use one of two connecting ramps that led to the dock where Plano’s injury occurred. Plano, 103 Wash.App. at 915, 14 P.3d 871. The ramps had been built specifically to pro- vide access to the dock and a paying patron could not pay the required fee without walk- ing up one of the ramps. Plano, 103 Wash. App. at 915, 14 P.3d 871. Thus, the Plano court held that the undisputed facts estab- lished that the ramps were a necessary and integral part of the dock and the City of Renton was not entitled to immunity when a non-paying user injured herself on one of them. Plano, 103 Wash.App. at 915, 14 P.3d 871.

[9, 10] ¶ 13 The facts of this case are not analogous to Plano. A person is not re- quired to pay for or use either the path or the restroom as a part of any paid access for or use of either Teo Park or the pier. Hively concedes that it is unnecessary for a person to reach the restroom by walking on the path where he fell because another path also pro- vides access to the restroom from the pier. No evidence suggests that the path where Hively’s injury occurred was constructed specifically for the purpose of providing ac- cess to the Port’s fee-generating areas. While John McSherry, the executive director of the Port, agreed that the restroom is ‘‘a key part’’ of Teo Park and that it is an ‘‘important part of all of the recreation activi- ties that occur on the waterfront,’’ this fact is undisputed and thus the trial court could determine the S 17issue of immunity as a mat-

ter of law. CP at 111, 204. Therefore, following the reasoning of Plano, there is no genuine issue of material fact that the path or the restroom were an integral part of the Port’s fee-generating areas and the trial court properly granted summary judgment to the Port under former RCW 4.24.210.3

Necessarily, the trial court also properly de- nied Hively’s motion for reconsideration. We affirm the trial court’s order granting summary judgment dismissal and order de- nying reconsideration.

¶ 14 A majority of the panel having deter- mined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur: BJORGEN, A.C.J., and MELNICK, J.

,

193 Wash.App. 254

Richard A. FOX and Marnie B. Fox, husband and wife, Appellants,

v.

SKAGIT COUNTY, a municipal corpora- tion, Skagit County Board of Health, an RCW 70.05 local board of health, Dale Pernula, Director of the Skagit County Planning and Development Services and Jennifer Kingsley, Director of the Skagit County Board of Health aka Skagit County Public Health Department, State of Washington, Department of Ecology, Swinomish Indian Tribal Community, Respondents.

No. 73315–0–I.

Court of Appeals of Washington, Division 1.

April 11, 2016.

Background: Property owners filed peti- tion for writ of mandamus, seeking to com-

3. While the trial court stated, ‘‘My finding is that the restroom can be reached by other access routes. And TTT the path does not exist to pro- vide access to the pier or park,’’ contrary to Hively’s argument, the use of the word ‘‘finding’’ does not transform an issue of law into an issue

of fact. Verbatim Report of Proceedings at 10– 11. Furthermore, to the extent the trial court actually made a finding of fact by using that word, Hively did not object, and therefore he has waived that issue. RAP 2.5(a).