Injuries on Recreational Property – Traps for the Unwary

The Washington legislature passed what’s called the Recreational Land Use Statute (but, for the sake of accuracy, I’m going to call it the Recreational Immunity Statute). RCW 4.24.200-.210. It was designed to encourage landowners to allow the public to use their property for recreational purposes without fear (or with reduced fear) of liability for accidents and injuries.

The Recreational Immunity Statute only makes property owners liable for “latent” defects for which they haven’t posted warning signs. Latent defects are defects that are not visible or readily discovered by recreational users. (They’re distinguished from “patent” defects in property that should be readily apparent.)

All of this seems well and good until you take a look at how the courts have applied the Recreational Immunity Statute.

The Washington courts have gone completely overboard. The courts have deprived deserving people who have been injured from recovering from negligent landowners.

The courts have contorted the definition of “latent” beyond recognition. For instance, courts have held that defects in roadways that cannot be seen by users until they actually encounter them (for instance potholes hidden by shade or railroad tracks behind a sharp bending road) are not latent defects. As a result, the Recreational Immunity Statute shields property owners and deprives injured persons from recovering.

Also problematic is the nature of the property that qualifies for recreational immunity.

When you read the statute you think immediately of camping sites, wilderness areas, etc. You don’t think about freeways or highways.

But the Recreational Immunity Statute has been applied to accidents on well-developed roads running through national parks. Many people drive on these roads because they provide access to their homes or constitute the shortest way to get from Point A to Point B.

Just because you’re riding or driving through a park doesn’t mean that you’re recreating like you would be if you were fishing, camping, skiing or hiking. Nevertheless, the courts have applied the Recreational Immunity Statute to bar recovery for people injured driving and riding on forest service roads.

The Recreational Immunity Statute had and has valid purpose. However, it has been over-applied by the courts. The legislature needs to pull back the reins on the judiciary and make sure that the goals of encouraging landowners to keep their property open for recreational use and fair compensation for people who get injured as a result of landowner negligence are balanced.