By James H. Moss
An issue that has rarely come up in the courts, which blasted full speed onto the scene in Oregon, is who is protected by a state recreational use statue. The statutes were directed at the landowner, the person making the decision to open his land to recreation for no fee.
In the past, volunteers working on the land have assumed, and to a major extent rightfully so, that they were also protected by the recreational use act of the state where they were volunteering. They were there at the bequest of the landowner, many times working with the landowner or at the landowner’s request and those protected.
This protection either seemed to stem from a Respondeat Superior theory, where the landowner was liable for the actions of his employees, and by extension volunteers or the recreational use statute protected everyone on the land.
The Underlying Case
In this case, two employees of the City of Portland were working in a city park. They left a hole which the plaintiff, a blind woman who was jogging, stepped into suffering injuries. At this point, the case got extremely complicated, which led to the circuitous route leading to the decision. The plaintiff filed her complaint in the Federal District Court alleging a federal claim to create jurisdiction, a violation of the Americans with Disabilities Act.
The City of Portland filed two motions with the federal court. The first was to substitute the City as the defendant based on the Oregon Tort Claims act and a motion for summary judgment. The motion for substitution was denied based on the Oregon Constitution because it would leave the plaintiff without a remedy. The Oregon Constitution has a remedy clause, which would prohibit the dismissal of the claims based on the fact that it would leave the plaintiff without a remedy for her claims. The Oregon Public Use of Lands Act (recreational use statute) would prevent recovery.
The federal court did grant the city’s motion for summary judgment for the ADA claim leaving only the negligence claim. Without a federal claim, the case was dismissed. However, the plaintiff filed a new federal claim this time claiming diversity jurisdiction. (How the diversity jurisdiction was achieved was never explained in the decision.) The city again filed a motion for substitution of counsel. Again, the motion for substitution of counsel was denied based on the ruling of the prior federal court. The individual defendants, the city employees, filed motions for summary judgment arguing they were protected by the Public Use of Lands Act.
The federal court agreed the individual defendants were protected by the recreational use statute. The plaintiff then appealed to the Ninth Circuit court of appeals. The Ninth Circuit certified two questions to the Oregon Supreme Court.
whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore, immune from liability for their negligence; and
if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.
The Oregon Supreme Court then went through a complicated analysis to reach the decision that the Oregon Public Lands Act only protected landowners or tenants. Only those people who had a legal interest in the ownership or occupation of the land. This analysis looked at the wording of the act itself as well as agency law in Oregon to reach this conclusion. This conclusion found that agency law did not provide protection to the employees under Oregon law for a defective condition on the land created by the agents.
Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents.
Reaching this conclusion, the court found there was no need to answer the second question asked by the Ninth Circuit.
Individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore, not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.
The results of this analysis go beyond employees of a city working in a city park. The bases for most recreational activities on state and public lands are created by volunteers. Volunteers for the International Mountain Biking Association build bike trails on city, state and federal lands. Boy Scouts and Girl Scouts clean up trails and repair them. The Access Fund has volunteers who clean and re-bolt climbing areas and the trails leading to the climbs. The entire foundation of keeping recreation areas clean in many areas is based on volunteers, who in the past could rely upon the protection afforded by state recreational use statutes.
State and Federal Volunteer immunity statutes still apply. However, they require much greater levels of proof for the protection to apply. Much like a respondeat superior argument, the volunteer must prove they were working for a volunteer organization doing the work for the volunteer organization as the organization provided. Recreational use statutes simply required you be on the land recreating and not paying a fee.
Consequently, volunteer activity in the outdoors has come to a standstill in Oregon. Those volunteers who provided service to the land prior to the decision are now waiting for the statute of limitation to pass, without being named in a lawsuit. A Boy Scout working to achieve community service hours might kick a rock onto a trail as he was picking up litter. That rock, if a hiker tripped over it suffering an injury, could be the basis for a suit against the Scout.
Nor would it seem is protection afforded to the organization’s training leading to and providing for the volunteer work. So the Scout who moved the rock, the Boy Scouts of America, the local Scout Council and the chartered organization sponsoring the Boy Scout troop could all be hauled into court because an 11-year-old moved a rock.
Worse will be the attempts by insurance companies using the right to subrogation to recover funds they spent. A cross-country team member who falls over that same rock suffering an injury could become the plaintiff in a suit from his health insurer and possibly his school to recover the costs of his medical bills.
This then leads to this ridiculous analogy. That the rock which was moved by the school conservation club doing community service was the cause of the same school’s athlete’s injury, who now along with the school is suing the conservation club. Alternatively, the clean-up work provided on a trail at a Scout camp leading to an injured Scout is the basis for a suit by the next Scout who fell over the rock. His family’s personal health insurance company is suing the Scout Camp and his Boy Scout troop to recover medical bills for trying to make a place better.
The obvious solution to the problem is for the Oregon Legislature to amend the Oregon Public Lands Act to broaden the coverage and protection it provides. However, the legislature in Oregon seems to have little interest in altering Oregon Supreme Court decisions. Three years ago, the Oregon Supreme Court eliminated releases in the state in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994. The legislature has yet to fix the law as insurance premiums head for the sky for ski areas, rafting companies and every other recreation provider in a state known for its recreation.
For the time being, volunteer activities on city, state, federal and privately-owned land will be ceasing as the impact of this decision is understood. Trails will become littered and mountain bike trails will probably be closed until the liability for the volunteer work on the act has run.
Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129
Moss is a recreation law expert. He can be reached at Rec-law@recreation-law.com
