Legal Question in Mediation in Washington

Re: fall from a tree

If the tree is visible by the public you will not likely be liable, because the threat could be seen and parents could then have taken care to stop their children from climbing if they wanted to.

Re: fall from a tree

Save the trees!

Under the common law, landowners owe a different duty of care depending upon the legal status of the person on their land. One can be an invitee, a licensee or a trespasser. Landowners have the fewest duties to a trespasser and the most to an invitee.

Historically, people were considered invitees when they entered land for recreational purposes whether or not they were actually invited. This meant that landowners had a duty to perform inspections, to discover dangerous conditions, and to use �ordinary care� to keep their land �reasonably safe.�

While not especially onerous, these duties make people nervous.

Legislation enacted in 1967 limited landowner liability. Over the years, this law has changed a bit, but the intent to encourage access to land for recreation remains.

RCW 4.24.210 says:

Any public or private landowners ... who allow members of the public to use them for the purposes of outdoor recreation ... without charging a fee ... shall not be liable for unintentional injuries to such users.

This statute flipped the common law rule. Now landowners are rarely liable for injured recreational users.

In September of 2001, the Washington Supreme Court clarified this third exception in Davis v. State of Washington. Davis rode his motorcycle off a 20 to 30 foot cliff in natural sand dunes owned by the state in which people are permitted to use recreation vehicles. Davis landed on his back and suffered paraplegia and blindness. Davis had been following tracks and there was an optical illusion that made it look as though there was no drop off. There were no warning signs, despite the fact that the area was mostly flat.

The Court explained that an injured recreational user must prove all four elements in the injury-causing condition or the landowner is not liable. These elements are: 1) known; 2) dangerous; 3) artificial; and 4) latent. In Davis, the issue was whether the condition was artificial.

The Court ruled that, while the tracks leading to the cliff were artificial because they were a human-made alteration, this alteration did not transform the natural state of the thing that caused the injury�namely, the cliff. The test for liability is now whether �the artificial external circumstance so changed a natural condition [that] it is unreasonable to distinguish the two when analyzing whether the condition was artificial.�

This ruling should make make you more comfortable allowing kids to climb your trees. If you are worried about something specific, warning signs might better protect you from liability than no trespassing signs and please don't cut down the trees