As the light wanes with the fall, an opinion from the Washington Supreme Court, Schwartz v. King County, highlights the differing needs of urban trail users—specifically bicyclists—and how those can impact the exception to the recreational immunity defense.

The case arose when a bicyclist struck a bollard—a short metal post designed to keep vehicles off recreational trails—and suffered severe injuries, leaving him paralyzed. The bicyclist sued King County, the trail owner. The jurisdiction argued that because it had opened the trail to the public for recreational purposes, Washington’s recreational use immunity statute bars the bicyclist claims. Both parties filed motions for summary judgment, asking the Court to decide the case as a matter of law rather than a dispute of the facts. The issue was whether the exception to the recreational use immunity statute, RCW 4.24.210, applies.

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.” The County acknowledged the bollard is an artificial condition that is known to the County and for which no warning signs have been conspicuously posted. However, as the Court stated, all four terms – known, dangerous, artificial, latent—must exist for the exception to apply.

Although the case was remanded to the trial court to determine whether the bollard in question was dangerous and latent, it serves as a timely reminder to double-check that bollards on city-owned trails are neither dangerous nor latent under the meaning of the law, the latter of which was clarified by the Court in this opinion:

[Jewels’s] “standing near” test [is disavowed] because such a test is incompatible with the common law test of what is readily apparent to the general class of recreational users. 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.

In layperson’s terms, conditions on trails must be viewed not just from the perspective of pedestrians “standing near” but also that of mobile users—bicyclists, as an example—approaching at speed in differing light conditions. Before the rains finally arrive, check that your bollards comply with safety design standards.