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Oregon Supreme Court decision says protection afforded by the OR Recreational Use Statute only applies to landowner, not volunteers or others on the land.

Oregon just passed a new law to hopefully supersede the ruling in this decision. Only time will tell.

How this will affect Federal Lands I don’t know. Federal volunteer statutes and state volunteer statutes may provide some protection.

However, you are now liable for volunteer work you might have done in the past building trails or putting in bolts or other volunteer work to make recreation in the State of Oregon better.

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

State: Oregon, Supreme Court of Oregon

Plaintiff: Emily Johnson

Defendant: Scott Gibson and Robert Stillson

Plaintiff Claims: negligence and violation of the American with Disabilities Act

Defendant Defenses: Oregon Recreational Use Statute

Holding: for the Plaintiff

Year: 2015

This is a weird case with a scary outcome. The plaintiff was a blind jogger who stepped into a hole in a Portland public park. The defendants, Gibson and Stillson were employees of the city and had created the hole to fix a sprinkler head.

The plaintiff filed her complaint in Federal District court arguing a Federal claim, creating federal jurisdiction. The City of Portland, the employer of the two defendants filed a motion for substitution and a motion for summary judgment. The motion for substitution says as the employer, the city is the real defendant because the city is liable for the acts of its employees.

The federal court denied to substitute the city for the two defendants stating the city would not be liable based on the Oregon Constitution, and that would leave the plaintiff without a claim. The court did grant part of the cities’ motion for summary judgment saying the Americans with Disabilities Act claim was thrown out but not the negligence claim.

The plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Diversity jurisdiction says that the parties are from different states; therefore Federal Court is the proper court. The second complaint alleged the two defendants were negligent. The city filed another motion for substitution, which was denied.

The two defendants then filed a motion for summary judgment arguing they were immune from liability under the Oregon Public Use of Lands Act (commonly called a Recreational Use Statute.) The federal district court agreed with this defense and dismissed the claim.

The plaintiff appealed to the Ninth Circuit Court of Appeals. Because this was a state law question which no Oregon court had decided, the Ninth Circuit Court of Appeals then asked the Oregon Supreme Court for clarification.

This decision is the Oregon Supreme Court answer to the question presented by the Ninth Circuit court of Appeals. The questions answered by the Oregon Supreme Court with this decision were:

(1) 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 (2) 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.

Analysis: making sense of the law based on these facts.

The court first looked at the language of the Oregon Public Use of Lands Act and dissected the language to determine if employees of the land owner were protected under the act. The first word reviewed in the act was “Owner.” Owner is defined by the statute so possessor was then reviewed in relation to the land.

A possessor may or may not own the land, but may control the land.

A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.”

In the same paragraph, the court tackled the definition of what it means to occupy the land. After reviewing the definitions, the court determined that an occupant or a possessor must have some control over the land.

Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made of it.

This then evolved into a determination that occupier and possessors of land were similar to lessees and tenants. Control over the land meant more than able to do stuff to the land, but to open the land, close the land and/or prevent others from using the land. The court then referred back to the Oregon Public Use of Lands Act where the term’s occupier and possessor were used to determine that the act did not cover the individual defendants who were employees of the owner, occupier or possessor of the land.

Meaning since the employees/defendants could not open or close the land to others, were just working on the land, the protection of the Oregon Public Use of Lands Act was not available to them.

Using those definitions and that reasoning, the court then carved out an exception to the law, which was not specifically identified, so that the employees of the defendant would not be covered by the Oregon Public Use of Lands Act.

Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets.

So the immunity provided immunity to the land owner, in this case the city of Portland, does not extend to agents or employees of the land owner. The court found the legislature did not extend the immunity provided the Oregon Public Use of Lands Act to agents or employees of the land owner.

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.

The court then narrowed the effect of the statute even further limiting its protection to those who hold legal title to the land and those who stand instead of the landowners such as tenants. The court specifically identified employees and non-employee agents as NOT being protected by the statute.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

The court further reinforced its finding that the immunity provided by the Oregon Public Use of Lands Act only applied to the landowner. The court held that those who do not have the ability to make decisions about the land or to relieve others from liability for the land are not protected by the act.

Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

As with other decisions similar to this, the Oregon Supreme Court when out of its way to legally deny the defendant any chance of relief in this case and all future cases similar to this. (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy to see the same court use the same technique to eliminate releases as a defense in the state of Oregon.)

The Oregon Public Use of Lands Act was amended in 1995 to include in the definition of landowner public landowners such as cities, counties, municipalities.  However, the court found that language did not change the intent of the legislature to limit the protection to landowners and those who stand in the place of the landowner.

The legislature amended the Act in 1995 to make it expressly applicable to public land-owners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons.

The court held the employees of the city were not protected by the Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act prior to or after it was amended.

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.

So Now What?

This is a long decision with a short ending. If you are not the landowner or the tenant, you will not be protected from lawsuits by the Oregon Public Use of Lands Act.

A short list of those types of people who are not protected would be all volunteers, commercial guides and outfitters, or contractors hired to work on the land. You are volunteering to guide a group of people down a river trip as a fund raiser and someone is hurt, the Oregon Public Use of Lands Act would not provide any protection for you.

There may be other statutes that protect certain types of people on the land such as the Federal Volunteer Protection Act and any Federal laws for federal land and the Oregon Volunteer Protection Act. However, the strongest law protecting those opening their land for recreation now only protects the landowner. Landowners have nothing to fear; their protection did not change. No protection is afforded the statute now other than the landowner.

Landowners are still going to open their land; they are protected, but no work will be done to make the land better for recreation.

The Worst Part: Stopping now won’t matter. What volunteer work you might have done in the past building trails, putting in bolts or other work on lands as a volunteer can create liability for you now.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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2 Comments on “Oregon Supreme Court decision says protection afforded by the OR Recreational Use Statute only applies to landowner, not volunteers or others on the land.”

  1. Aaron says:

    What is the statute of limitations on prior volunteer work?
    Should Volunteers flip the traditional request and request liability waivers signed by and from the “landowner” prior to doing any work performed? Would work done by volunteers when supervised and approved by the landowner (or the employees of) be enough to place responsibility on the landowner for the actions and results of such actions? Are there any precautions or measures to take that protect the volunteer and provide any incentive or assurances for the volunteer to continue to volunteer?

    It all seems rather ridiculous that volunteers would be held liable if and when a “public land owner” approves of their work and/or actions upon completion of a project. It seems that some sort of differentiation should be made for gross negligence vs. best intent by a public citizen acting in public interest or benefit, like with the good samaritan law, that protects a person, attempting in good will, to provide a public service benefit despite not being a trained professional. In fact, when a landowner grants permission for said person to take approved of actions, then said person is simply performing the intended work of the landowner and nothing more. I would appreciate any additional analysis you could provide for how to move forward. thanks for the initial review.

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    • 1. I’m not 100% sure on how long the statute of limitations is, I’m pretty sure it is 2 years.

      2. So releases only work between the parties that offer and sign the release. So in this case they won’t do much good because the landlord is not suing the volunteers and the volunteers are not suing the landlord. Third parties are coming back and suing the volunteers. What would work would be an indemnification where the landlord would indemnify the volunteers. However, legally it might work, in reality it would not work.
      A. Most City, State and Federal land managers are not allowed to indemnify anyone by law.
      B. A private landowner could, but they would either have to be extremely wealthy or be able to purchase an insurance policy to do that and I doubt many if any could afford the price even if you could find a a policy.
      C. A third party could offer its members liability insurance protection, like IMBA or someone protecting their members building trails, but even then, those policies are usually secondary insurance, the volunteers only policy, homeowners, is first and those would also be expensive.

      3. Right now, I cannot figure out how I would tell anyone how to go volunteer on the land of another. Unless it was just picking up liter. I have even suggested that the Boy Scouts no longer do projects on land.

      4. You are 100% correct about the ridiculousness of this!!! This ruling meets new heights in absurd. When or if I can come up with some answers I’ll let you know. At this point, the only thing that can be done is to go back to the Oregon legislature and have them expand the Oregon Recreational Use act to cover third party volunteers on the land.

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