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

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

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

Emily Johnson, Plaintiff, v. Scott Gibson and Robert Stillson, Defendants.

SC S063188

SUPREME COURT OF OREGON

358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

November 13, 2015, Argued and Submitted

March 3, 2016, Decided

SUBSEQUENT HISTORY: Reconsideration denied by Johnson v. Gibson, 2016 Ore. LEXIS 281 (Or., Apr. 21, 2016)

PRIOR HISTORY:  [***1] US Court of Appeals Ninth Circuit 1335087. On certified questions from the United States Court of Appeals for the Ninth Circuit; certification order dated April 24, 2015; certification accepted June 4, 2015.

Johnson v. Gibson, 783 F.3d 1159, 2015 U.S. App. LEXIS 6551 (9th Cir. Or., 2015)

COUNSEL: Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause and filed the brief for plaintiff. With him on the brief was Christine N. Moore.

Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for defendants. With him on the brief was Denis M. Vannier, Deputy City Attorney.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Shenoa L. Payne, Haglund Kelley LLP, Portland.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Citycounty Insurance Services, Oregon School Boards Association, Special Districts Association of Oregon, and The International Municipal Lawyers Association.

Janet M. Schroer, Hart Wagner LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

JUDGES: Before Balmer, Chief [***2]  Justice, and Kistler, Walters, Landau, Baldwin, Brewer and Nakamoto, Justices.*

* Linder, J., retired December 31, 2015, and did not participate in the decision of this case.

OPINION BY: WALTERS

OPINION

[**1152]  [*626]   WALTERS, J.

This case is before the court on two certified questions from the United States Court of Appeals for the Ninth Circuit. See ORS 28.200 – 28.255 (providing for certification of certain questions of Oregon law from specified federal courts and appellate courts of other states to Oregon Supreme Court). As framed by the Ninth Circuit, the questions are (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.2 We conclude that the individual employees in this case do not qualify as “owner[s]” under the Act, and that we need not address the second certified question.

1 ORS 105.672(4), which defines “owner” for purposes of the Act, was amended in 2009, and those changes [***3]  went into effect January 1, 2010. Or Laws 2009, ch 532, § 1. Plaintiff alleges that her injuries occurred in July 2009. We therefore assume, as do the parties, that the Ninth Circuit’s questions refer to the version of the statute in place at the time plaintiff’s injuries occurred. That statute is ORS 105.672(4) (2007).

The current version of ORS 105.672(4) provides: “‘Owner’ means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.”

2 The remedy clause provides: “[E]very man  [HN1] shall have remedy by due course of law for injury done him in his person, property, or reputation.” Or Const, Art 1, § 10.

This case arose when plaintiff, who is legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City.

[*627]  Plaintiff filed her [***4]  complaint in federal district court, invoking federal claim and supplemental jurisdiction. Plaintiff alleged, under federal law, that the City had violated Title II of the American’s with Disabilities Act (ADA), 42 USC sections 12131 to 12165, and, under state law, that all three defendants were liable for negligently causing her injuries. The City filed two motions: A motion to substitute itself as the sole defendant, pursuant to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.302; and a motion for summary judgment.

The district court denied the City’s motion for substitution. Johnson v. City of Portland, CV No 10-117-JO (D Or Feb 10, 2011) (“Johnson I“). The court reasoned that substitution of the City would violate the remedy clause in Article I, section 10, of the Oregon Constitution, because the City was immune from liability under the Public Use of Lands Act. Had the court substituted the City as the sole defendant in the case, the only defendant would have been immune and entitled to dismissal, leaving plaintiff without a remedy for her injury. Id.

The district court granted the City’s motion for summary judgment, in part. The court granted the City summary judgment as to plaintiff’s federal ADA claim, leaving plaintiff’s negligence claim as her only remaining claim. The [***5]  district court declined to retain supplemental jurisdiction over that state law claim and dismissed the case. Id.

Plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Plaintiff again alleged a state law negligence claim against defendants Gibson and Stillson, and those defendants again filed a motion to substitute the City as the sole defendant under the OTCA. In Johnson II, the district  [**1153]  court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F Supp 2d 1075, 1082 (D Or 2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under the Public Use of Lands Act. Id. at 1083. The district court agreed, reasoning that employees who maintain land qualify as “owner[s]” under that Act, and that defendants Gibson and Stillson were therefore immune from liability.  [*628]  Id. at 1085. The court also held that the Public Use of Lands Act does not violate the remedy clause. Id. at 1088. The court granted defendants’ motion for summary judgment. Id. at 1089. Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit certified to this court the two questions now before us.

We begin with the first question [***6]  posed and the text of the Oregon Public Use of Lands Act, which provides, in part:

[HN2] “Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes * * *. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes * * *.”

ORS 105.682(1). “Land” is defined as “all real property, whether publicly or privately owned.” ORS 105.672(3). “Owner” is defined as follows:

“‘Owner’ means the possessor of any interest in any land, including but not limited to possession of a fee title. ‘Owner’ includes a tenant, lessee, occupant or other person in possession of the land.”

ORS 105.672(4) (2007).

From that definition of “owner,” defendants make a three-step argument: First, that the definition of the term “owner” is ambiguous and is not limited to those with a legal interest in the land; second, that, considered in its proper context, the term includes owners’ employees and [***7]  agents; and third, that as City employees, defendants are entitled to recreational immunity.

Defendants’ argument focuses on the second sentence of the definition of “owner.” Defendants recognize that they do not qualify as “owner[s]” under the first sentence of that definition because they do not have legal title to, or a legal right in, the property where plaintiff was injured. However, they contend, the second sentence in the definition  [*629]  is broader, and it includes both persons who have a legal right in property–specifically, “tenant[s]” and “lessee[s]”–and those who do not–specifically, “occupant[s]” and those who are “in possession of the land.” Id. According to defendants, the dictionary definitions of those latter terms demonstrate that “owner[s]” include persons without legal or equitable title to, or interest in, land.

[HN3] 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 [***8]  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.” Id. “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” Id. at 1561. 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.” Id. 1560.

Like defendants, we surmise, from those definitions, that  [HN4] the terms “occupant” and “person in possession of the land” may include persons without legal or equitable title to, or interest in, the land. But that is not the only lesson we take from those definitions. Like plaintiff, we conclude that those terms describe persons who do more than  [**1154]  take up space on 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 [***9]  of it. The terms “occupant” and “person in possession of the land” are used in the same sentence as the terms “tenant” and “lessee.” ORS 105.672(4) (2007). Tenants and lessees have the ability to decide who may use the space that they control and for what purposes. Under noscitur a sociis, a maxim of statutory construction that  [*630]  tells us that the meaning of an unclear word may be clarified by the meaning of other words used in the same context, it is likely that the legislature intended that “occupant[s]” and “person[s] in possession of the land” have the same type of control as tenants and lessees. See State v. McCullough, 347 Ore. 350, 361, 220 P3d 1182 (2009) (so describing noscitur a sociis). Under that interpretation, only persons with authority to control and exclude from the land qualify as “owner[s]” of the land.

Further support for that interpretation is found in the context in which the term “owner” is used in the Act. The Legislative Assembly enacted  [HN5] the Public Use of Lands Act in 1971 “to encourage owners of land to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Or Laws 1971, ch 780, § 2, codified as former ORS 105.660 (1971), now codified as amended as ORS 105.676 (emphasis added). The immunities [***10]  provided by the Act apply only if “[t]he owner makes no charge for permission to use the land.” Former ORS 105.688(2)(a) (2007), renumbered as ORS 105.688(3) (2010) (emphasis added). An individual without a right to exclude others from the land or to otherwise control use of the land does not have the decision-making authority that the statute contemplates–the authority to make the land available to the public or to charge for permission to use the land.

Defendants do not point us to any statutory context or legislative history that indicates that the legislature understood the terms “occupant” or “person in possession of the land” in ORS 105.672(4) (2007) to support the unbounded meaning that defendants ascribe to those terms.3 In fact, a case that defendants cite for a different proposition supports  [*631]  plaintiff’s narrow interpretation of those terms. In Elliott v. Rogers Construction, 257 Ore. 421, 433, 479 P2d 753 (1971), the court considered the standard of care that applied to a contractor that was building a road for its principal. In discussing that issue, the court observed that “[c]ases from other jurisdictions and legal writers do not treat a contractor as an occupier of land.” Id. at 432. In that case, the court was not interpreting the definition of “owner” in the Public Use of Lands Act, but its observation [***11]  about the legal meaning of the word “occupant” is consistent with our interpretation of that word as being limited to individuals with a right to control and exclude from the land.

3 Defendants do argue that the main sponsor of the bill that led to the current version of the Act stated that it was “designed to be very broad” and to “guarantee [landowners] that they [would not] be paying out of pocket for * * * allowing their property to be used.” Tape Recording, House Committee on Natural Resources, Subcommittee on Agriculture and Forestry, HB 2296, Jan 30, 1995, Tape 4, Side A (statement of Rep Kevin Mannix). However, we do not find that general statement of purpose to be of assistance in determining the meaning of defined terms in the statute. See State v. Gaines, 346 Ore. 160, 171, 206 P3d 1042 (2009) (“[I]t is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]”).

In this case, defendants do not argue that they had a right to exclude others from the land or to otherwise control the use of the land. Rather, they argue that the definition of “owner” is so ambiguous that it requires us to look beyond the words of the definition to the context surrounding ORS 105.682, particularly the [***12]  pre-existing common law. See Fresk v. Kraemer, 337 Ore. 513, 520-21, 99 P3d 282 (2004) (context includes pre-existing common law). Defendants contend that an examination of that pre-existing common law shows that the legislature must have intended “owner” to include persons who are employed  [**1155]  by, or are agents of, persons who are more classically denominated as owners.

Defendants argue that where land and property are concerned, the common law rule has long been that employees and agents have the same privileges and immunities as their principals. Defendants contend that, insofar as the legislature enacted and amended the Act in the context of that common law rule, it intended that that rule apply. Consequently, defendants assert, the legislature was not required to say explicitly what the common law already provides.

For the common law rule on which they rely, defendants point to two Oregon cases–Herzog v. Mittleman, 155 Ore. 624, 632, 65 P2d 384 (1937); and Elliott, 257 Ore. at 432-33. In the first of those cases, Herzog, the court examined a guest passenger statute that provided that a guest in a vehicle would have no cause of action against the owner or operator for damages unless the accident was “intentional on the  [*632]  part of [the] owner or operator or caused by his gross negligence or intoxication or his reckless disregard [***13]  of the rights of others.” Id. at 628. The question presented was whether a vehicle owner’s guest, who was operating the vehicle in question at the owner’s invitation, would be protected by the same rule on the theory that he was acting as the owner’s agent while driving the vehicle. The court looked to the Restatement (First) of Agency (1933) for assistance and began with section 343, which provides:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interest.”

Id. at 631 (internal quotation marks omitted). The court also looked to section 347 of the Restatement, which provides: “An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.” Id. (internal quotation marks omitted). Finally, the court quoted comment a to that section:

“a. Persons may have a personal immunity from liability with respect to all persons and for all acts, as in the case of a sovereign, or for some acts, as in the case of an insane person, or as to some persons as in the [***14]  case of a husband to a wife. * * * Unlike certain privileges such immunities cannot be delegated. On the other hand where an immunity exists in order to more adequately protect the interests of a person in relation to his property, the agent may have the principal’s immunity. Thus, the servant of a landowner while acting in the scope of his employment is under no greater duties to unseen trespassers than is the landowner[.]”

Id. at 631-32 (internal quotation marks omitted) (omission in original).

Reasoning from those provisions, the court explained that although “it is well settled that an agent who violates a duty which he owes to a third person is answerable for the consequences thereof,” if the agent is “acting within the authority, and pursuant to the direction of the principal, the agent is entitled to the same immunities as the principal would be had the principal done the same act under the  [*633]  same circumstances and such immunities were not personal to the principal.” Id. at 632. Applying that legal authority to the facts at hand, the court concluded that the standard of care set out in the statute was not personal to the principal–the car owner–but that it also extended to the agent–a guest that the owner [***15]  had authorized to drive the car. Id. at 633. The court further concluded that the plaintiff could not recover from the defendant-agent without a showing that the defendant-agent was grossly negligent. Id.

In the second of the Oregon cases that defendants cite, Elliott, the court considered whether a contractor working on a landowner’s property had the same limited duty of care to trespassers and licensees as did the landowner. 257 Ore. at 431-33. In that case, an employee of a construction company that was building a road for the State Highway Department accidentally injured a pedestrian who was crossing a portion of the road that had not yet been opened to the public. Id. at 424. The  [**1156]  court explained that, “[b]eing ‘clothed with the rights of the owner,’ [the construction company] was only under a duty to the plaintiff’s decedent to abstain from inflicting injury willfully or by active negligence.” Id. at 433. Because the plaintiff had alleged that the company’s employee had acted with wanton misconduct, however, the court held that the lawsuit could proceed. Id. at 434-35. Thus, without discussing the issues in the same terms used in the Restatement (First) of Agency, the court implicitly concluded that the standard of care applicable to the landowner [***16]  was not personal to the landowner, but that it also extended to the landowner’s agent.

In this case, defendants’ reliance on Herzog and Elliott is misplaced. Defendants draw general conclusions from the results in those cases without recognizing the distinction that is explicit in Herzog and implicit in Elliott–that is, the distinction between immunities that are personal to the principal and those that may extend to a principal’s agent. 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  [*634]  sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets. The first case in which the court contemplated that issue was Mattson v. Astoria, 39 Ore. 577, 65 P 1066 (1901).

In Mattson, the plaintiff was injured as a result of the city’s failure to keep a public street in repair and suitable for travel. Id. at 578. The plaintiff challenged a clause of the city charter that exempted the city and members of [***17]  its council from liability for such failure. Id. The court said the following:

“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. * * * But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted.”

Id. at 579. Since Mattson, the court has consistently recognized that the liability of a local government as landowner is distinct from the liability of employees and agents of the government. For instance, in Gearin v. Marion County, 110 Ore. 390, 396-97, 223 P 929 (1924), the court explained:

“The constitutional guaranty that ‘every man shall have remedy by due course of law for injury done him in his person, property or reputation’ we think is self-executing and operates without the aid of any legislative act or provision. * * * It has, however, no application to an action sounding in tort when brought against the state or one of the counties of the state. In strict law neither the state nor a county is capable of committing a tort or lawfully authorizing one to be [***18]  committed. Counties, as well as the state, act through their public officials and duly authorized agents. The officers, agents, servants and employees of the state or a county, while in the discharge of their duties, can and sometimes do commit torts, but no lawful authorization or legal justification can be found for the commission of a tort by any such officer, agent, servant or employee. When a tort is thus committed, the person committing it is personally liable for the injury resulting therefrom. The wrongful act, however, is the act of the wrongdoer and not  [*635]  the act of the state or county in whose service the wrong-doer is then engaged. For the damages occasioned by the wrong thus committed it is within the power of the legislature to impute liability against the state or the county in whose service the wrongdoer is then engaged, or to exempt the state or county from such liability, but in either event the wrongdoer is himself personally responsible. It is the remedy against the wrongdoer himself and not the remedy which may or may not be imposed by statute against the state or county for the torts of its officers or agents  [**1157]  to which the constitutional guarant[y] applies.”

See also Rankin v. Buckman, et al., 9 Ore. 253, 259-63 (1881) (city [***19]  employees liable even when city is not).

From those cases, it appears that whether a principal’s immunity is personal to the principal or may extend to an agent is a matter of legislative choice subject to constitutional bounds. We presume that the legislature was aware of that existing law. Blachana, LLC v. Bureau of Labor and Industries, 354 Ore. 676, 691, 318 P3d 735 (2014). In addition, the Restatement (Second) of Agency section 347(1) (1958), which had been published by the American Law Institute when the Legislative Assembly enacted the Oregon Public Use of Lands Act in 1971, is in accord. It provides that “[a]n agent does not have the immunities of his principal although acting at the direction of the principal.” Id. Restatement section 347 comment a clarifies: “Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability. They are strictly personal to the individual and cannot be shared.” Subject to constitutional limitations, the legislature must determine as a matter of public policy how broadly to extend immunities.

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 legal principles that [***20]  the court had previously applied, as well as the common law rules reflected in the restatements, recognized that the grant of immunity to a principal, particularly to a governmental principal, would not necessarily extend to the employees and agents of the  [*636]  principal. Whether a court would imply such an extension could depend, for instance, on whether the court considered the grant of immunity personal to the principal, or whether extension of immunity to an agent would eliminate a remedy that the Oregon Constitution requires.

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.

Second, we look to the [***21]  statute’s context and legislative history and note that, when it was originally enacted in 1971, the Act was supported by owners of forestland who wished to open their lands to the public for recreational uses such as hunting and fishing. Testimony, Senate Committee on State and Federal Affairs, SB 294, March 1, 1971 (written statement of Sam Taylor, a proponent of the bill). When originally enacted, the Act provided that “[a]n owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose.” Or Laws 1971, ch 780, § 3. 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.

The legislature amended the Act in 1995 to make it expressly [***22]  applicable to public landowners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes  [*637]  in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons. Importantly, the legislature did not materially change the definition of owner in 1995. The 1971 Act provided that an “owner” is “the possessor of a fee title interest in any land, a tenant, lessee, occupant or other person in  [**1158]  possession of the land.” Or Laws 1971, ch 780, § 1. In 1995, the legislature broke the definition into two sentences and changed the phrase in the first sentence from “possessor of a fee title interest in any land” to “possessor of any interest in any land.” Or Laws 1995, ch 456, § 1. However, the legislature did not change the categories of persons to whom it granted immunity; in 1995, the legislature exempted the same persons from liability that it had exempted in 1971. When the legislature made the Public Use of Lands Act expressly applicable to public landowners in 1995, it did not demonstrate an intent to broaden the Act to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners [***23]  who commit negligent acts from responsibility for injuries caused by such acts.

Defendants argue, however, that other statutory context points in that direction. Defendants call our attention to the fact that just four years earlier, in 1991, the legislature had amended the OTCA to provide that a claim against a public body is the sole remedy for the torts committed by employees of that public body. Or Laws 1991, ch 861, § 1. Defendants contend that, in light of that amendment, the Public Use of Lands Act must be read to shield governmental employees and agents; otherwise, the immunity it grants to governmental landowners would mean nothing. We disagree. The Public Use of Lands Act applies not only to public landowners, but also to private landowners. Just as it did before the amendment of the OTCA, the Public Use of Lands Act protects all “owner[s]” from liability in their capacity as “owner[s].” Just like private owners, public owners are exempt from liability for their own acts. The fact that public owners are not, in addition, exempt from liability for the acts of their employees or agents does not make the immunity granted by the Public Use of Lands Act illusory. The fact that public owners, like [***24]  private owners, are not shielded from liability if they employ non-owners who cause injury to  [*638]  others in the negligent performance of their duties does not mean that the Public Use of Lands Act has no purpose.

The legislature knows how to extend immunity to governmental employees and agents when it chooses to do so. See ORS 368.031 (immunizing counties and their officers, employees, or agents for failure to improve or keep in repair local access roads); ORS 453.912 (immunizing the state and local government and their officers, agents and employees for loss or injury resulting from the presence of any chemical or controlled substance at a site used to manufacture illegal drugs); ORS 475.465 (immunizing the state, DEQ, EQC, and their officers, employees, and agents from liability to a person possessing chemicals at alleged illegal drug manufacturing site).4 The legislature did not make that express choice in the Public Use of Lands Act. Should the legislature wish to extend the immunity provided to “owner[s]” to governmental employees and agents, it is free to do so, within constitutional bounds. However, we are unwilling to insert into the definition of “owner” in ORS 105.672(4) (2007) terms that the legislature did not include. See ORS 174.010 (office [***25]  of judge is to ascertain what is contained in statute, not to insert what was omitted or to omit what was inserted).

4 Another example, although enacted after the Public Use of Lands Act, is a 2011 statute that grants immunity relating to public trails. ORS 105.668(2) immunizes a “city with a population of 500,000 or more” and its “officers, employees, or agents” from liability for injury or damage resulting from the use of a trail or structures in a public easement or an unimproved right of way.

We answer the Ninth Circuit’s first certified question as follows:  [HN6] Individual employees responsible for repairing, maintaining, and operating improvements on Cityowned 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 certified questions are answered.

 


Oregon Volunteer Immunity Act or Limitation on Liability of Volunteers; conditions.

Title 3  Remedies and Special Actions and Proceedings  
Chapter 30-  Actions and Suits in Particular Cases  
Volunteers Transporting Older Persons and Persons with Disabilities
 
GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY
ORS § 30.480  (2016)
30.480  Limitation on liability of volunteers; conditions.

(1) When a provider of volunteer transportation services who is qualified under subsection (3) of this section provides the services under the conditions described in subsection (4) of this section to a person with a disability or a person who is 55 years of age or older, the liability of the provider to the person for injury, death or loss arising out of the volunteer transportation services shall be limited as provided in this section. When volunteer transportation services are provided to five or fewer persons at one time, the liability of the provider of the volunteer transportation services shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy, as described in ORS 806.080, or the amounts specified in ORS 806.070 for future responsibility payments for:

     (a) Bodily injury to or death of any one person to whom the transportation services are provided, in any one accident.

     (b) Bodily injury to or death of two or more persons to whom the transportation services are provided, in any one accident.

     (c) Injury to or destruction of the property of one or more persons to whom the transportation services are provided, in any one accident.

(2) Notwithstanding the amount specified in subsection (1)(b) of this section by reference to ORS 806.070, if a qualified provider of transportation services provides the services to more than five persons, but not more than 16, at one time who have disabilities or who are 55 years of age or older, under the conditions described in subsection (4) of this section, the liability under subsection (1)(b) of this section shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy or $ 300,000. The limitations on liability provided by ORS 30.475, 30.480 and 30.485 do not apply when volunteer transportation services are provided to 17 or more persons at one time who have disabilities or who are 55 years of age or older.

(3) The following persons qualify for the limitation on liability under subsections (1) and (2) of this section:

     (a) The person who provides or sponsors transportation services.

     (b) The owner of the vehicle in which transportation services are provided.

     (c) The person who operates the vehicle in which transportation services are provided.

(4) The limitation on liability under subsections (1) and (2) of this section applies to a person qualified under subsection (3) of this section only under the following conditions:

     (a) If the person is an individual, the individual must hold a valid Oregon driver’s license.

     (b) The person must provide the transportation services on a nonprofit and voluntary basis. However, this paragraph does not prohibit a sponsor of transportation services from reimbursing an operator of a private motor vehicle providing the services for actual expenses incurred by the operator. If an operator is paid, that operator is qualified only if operating as an emergency operator.

     (c) The person providing the transportation services must not receive from the persons using the services any substantial benefit in a material or business sense that is a substantial motivating factor for the transportation. A contribution or donation to the provider of the transportation services other than the operator of the motor vehicle or any mere gratuity or social amenity shall not be a substantial benefit under this paragraph.

     (d) Except as provided in paragraph (c) of this subsection, the transportation services must be provided without charge to the person using the services.

(5) The amounts received by a person with a disability or a person 55 years of age or older under the personal injury protection provisions of the insurance coverage of a person who qualifies for the limitation on liability under this section shall not reduce the amount that the person may recover under subsection (1) or (2) of this section.

(6) The liability of two or more persons whose liability is limited under this section, on claims arising out of a single accident, shall not exceed in the aggregate the amounts limited by subsection (1) or (2) of this section.

(7) This section does not apply in the case of an accident or injury if the accident or injury was intentional on the part of any person who provided the transportation services or if the accident or injury was caused by the person’s gross negligence or intoxication. For purposes of this subsection, gross negligence is negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.

(8) For purposes of this section, a person has a disability if the person has a physical or mental disability that for the person constitutes or results in a functional limitation to one or more of the following activities: Self-care, ambulation, communication, transportation, education, socialization or employment.

 


Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act

Oregon Recreational Use Statute

Oregon Public Use of Lands Act

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

105.672. Definitions for ORS 105.672 to 105.696. 3

105.676. Public policy. 3

105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

105.688  Applicability of immunities from liability for owner of land; restrictions. 4

105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 8

105.699. Rules applicable to state lands. 9

105.696  Duty of care or liability not created; exercise of care required of person using land. 9

105.699  Rules Applicable to State Lands. 10

105.700. Prohibiting public access to private land; notice requirements; damages. 10

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

As used in ORS 105.672 to 105.696 :

(1)       “Charge”:

(a)             Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b)             Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2)       This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

105.688  Applicability of immunities from liability for owner of land; restrictions.

(1) Except as specifically provided in ORS 105.672 to 105.696, the immunities provided by ORS 105.682 apply to:

(a) All land, including but not limited to land adjacent or contiguous to any bodies of water, watercourses or the ocean shore as defined by ORS 390.605;

(b) All roads, bodies of water, watercourses, rights of way, buildings, fixtures and structures on the land described in paragraph (a) of this subsection;

(c) All paths, trails, roads, watercourses and other rights of way while being used by a person to reach land for recreational purposes, gardening, woodcutting or the harvest of special forest products, that are on land adjacent to the land that the person intends to use for recreational purposes, gardening, woodcutting or the harvest of special forest products, and that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes, gardening, woodcutting or the harvest of special forest products; and

(d) All machinery or equipment on the land described in paragraph (a) of this subsection.

(2) The immunities provided by ORS 105.682 apply to land if the owner transfers an easement to a public body to use the land.

(3) Except as provided in subsections (4) to (7) of this section, the immunities provided by ORS 105.682 do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(5) The immunities provided by ORS 105.682 for gardening do not apply if the owner charges more than $ 25 per year for the use of the land for gardening. If the owner charges more than $ 25 per year for the use of the land for gardening, the immunities provided by ORS 105.682 apply to any use of the land other than gardening. If the owner charges more than $ 25 per year for permission to use a specific part of the owner’s land for gardening and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(6) The immunities provided by ORS 105.682 for woodcutting do not apply if the owner charges more than $ 75 per cord for permission to use the land for woodcutting. If the owner charges more than $ 75 per cord for the use of the land for woodcutting, the immunities provided by ORS 105.682 apply to any use of the land other than woodcutting. If the owner charges more than $ 75 per cord for permission to use a specific part of the owner’s land for woodcutting and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(7) The immunities provided by ORS 105.682 for the harvest of special forest products do not apply if the owner makes any charge for permission to use the land for the harvest of special forest products. If the owner charges for permission to use the owner’s land for the harvest of special forest products, the immunities provided by ORS 105.682 apply to any use of the land other than the harvest of special forest products. If the owner charges for permission to use a specific part of the owner’s land for harvesting special forest products and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(8) Notices under subsections (4) to (7) of this section may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

105.696  Duty of care or liability not created; exercise of care required of person using land.

ORS 105.672 to 105.696 do not:

(1) Create a duty of care or basis for liability for personal injury, death or property damage resulting from the use of land for recreational purposes, for gardening, for woodcutting or for the harvest of special forest products.

(2) Relieve a person using the land of another for recreational purposes, gardening, woodcutting or the harvest of special forest products from any obligation that the person has to exercise care in use of the land in the activities of the person or from the legal consequences of failure of the person to exercise that care.

105.699  Rules Applicable to State Lands.

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

 


Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.

Door swings both ways in the law. Ski areas used the Colorado Premises Liability Act to lower the standard of care and effectively eliminate claims for lift accidents in Colorado. Here the same act is used to rule a release is void for accidents occurring on premises. However, the release was badly written and should have been thrown out.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

State: Colorado, Colorado Court of Appeals

Plaintiff: Wendy Jane Stone

Defendant: Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.

Plaintiff Claims: Negligence and violation of the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2016

This case is going to change a lot of releases in Colorado, and possibly nationwide. Similar decisions concerning health club releases have occurred in other states for the same or similar reasons. Basically, your have to write a release correctly, or it is void.

Remember the articles about Vail using the Colorado Premises Liability Act to defeat claims for lift accidents? (See Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner and Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?) The same act has been used to void a release in a health club case.

The Colorado Premises Liability Act is a law that tells a landowner (which is broadly defined to include renters as well as landowners indoors and out) how they must treat three types of people on their land or as in this case, a person who is in a health club.

Here the plaintiff had washed her hands in the locker room, and as she was leaving she tripped over the blow dryer cord fracturing her right ankle.

Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

The plaintiff’s injuries arose from her being the land, not for using the benefits of the health club.

The plaintiff sued for negligence and for violation of the Colorado Premises Liability Act. The Colorado Premises Liability Act sets for the duties owed by a landowner to someone on their land based on the relationship between the landowner and the person on the land. Pursuant to an earlier Colorado Supreme Court decision, the Colorado Premises Liability Act provides the sole remedies available to persons injured on the property of another.

The trial court dismissed the plaintiff’s claims based upon the release used by the health club, and the plaintiff appealed.

This decision is new and there is a possibility that it could be appealed to the Colorado Supreme Court and reversed.

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

The plaintiff filed here a complaint with two claims, negligence and breach of the Colorado Premises Liability Act. The court first looked at the negligence claim. The court found that negligence claim was properly dismissed, but for a different reason that the release stopped the claim. Here, the Colorado Premises Liability Act provides the only legal recourse against a landowner, so the negligence claim has no validity.

The PLA thus provides the sole remedy against landowners for injuries on their property established that the PLA abrogates common law negligence claims against landowners.

Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court; therefore, correctly ruled against her on that claim.

When a statute as in this case the Colorado Premises Liability Act, states the only way to sue is under this act, the statute bars all other ways or theories to sue.

The plaintiff’s argument then was the release that was written and signed by the plaintiff only covered the activities in the health club and did not provide protection from a suit for simply being on the premises.

As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court then reviewed the general rules surrounding release in Colorado law.

Generally, exculpatory agreements have long been disfavored.” Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language.

Under Colorado law, clear and unambiguously language is reviewed based on the lengthy, the amount of legal jargon and the possibility of confusion.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Colorado has a four-part test to determine the validity of a release.

Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language.

The court quickly ruled that the first three factors were not at issue in this case.

In Colorado, there is no public duty based on recreational services. Recreational services are neither essential nor a matter of practical necessity. The third factor was also met because the defendant did not have any advantage. The plaintiff was free to obtain the services of the defendant someplace else.

The fourth factor provided the issue the case would resolve around, “Whether the intention of the parties was clear and unambiguous.”

The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable.

The court found eight ways the release in this case failed.

First, the release was very small type, dense fine print.

First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

Second, the release was full of confusing legal jargon, including the following terms:

…affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.

This jargon was found to mitigate against the idea the release was clear and simple to understand.

Third, the release, referenced clauses, identified as chapters, which even the attorneys for the defendant found confusing. Nor could anyone explain what the references to chapters referred to.

Fourth the focus of the release was on the use of the exercise equipment. The court pointed out five instances in the release that related to the use of the equipment and none relating to occupation of the premises. Meaning the court found a release must release the claims the plaintiff is complaining of.

The fifth reason was the use of the term “inherent.” (As I’ve stated before and given presentations on, inherent is a limiting term you do not want to use in a release.) The court said the use of this term was only applied under Colorado law to apply to activities that are dangerous or potentially dangerous. A locker room is not inherently dangerous so the term is confusing in this case.

In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.

The sixth issue the court had was the language between the different release terms was “squirrely.” (In 35 years of practicing law, I have used the term a lot, but never in a courtroom, and I’ve never seen it in a decision.) The way the language referred back to other clauses in the release and attempting to identify what injuries were actually covered created ambiguities and confusion. The defense counsel for the health club admitted the language was squirrely.

The seventh issue was the general language of the release used to broaden the release, (after using the narrowing term inherent). The release was full of “but for” or “but is not” type of phrases. It was an attempt to broaden the language in the release, which only made the release more confusing.

Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive.

The use of these terms created more ambiguity in the release. Specifically, the language created an expansive versus restrictive flow in the release, none of which referenced the locker room.

Based on the above language the court found the release was not clear, unambiguous and unequivocal.

Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

The negligence claim was dismissed, and the claim under the Colorado Premises Liability Act was allowed to proceed.

So Now What?

First remember, this case could still be appealed and changed by the Colorado Supreme Court. However, the logic and reasoning behind the Colorado Appellate Court decision is well laid out and clear. I don’t think these are issues the Colorado Supreme Court is going to take on.

Colorado has jumped onto the release bandwagon I’ve been telling people about for 25 years.  Your release has to be written in English, it needs to be understandable, and it needs to cover everything. Most importantly, it needs to be a separate document with no fine print, no legal jargon and easily read. You can no longer hide your release on the back of an agreement using fine print and expect it to protect you from claims.

Colorado has been a state where releases are rarely over-turned. However, this was a crappy piece of paper that had release language on it. The print was too small; the language was so confusing the attorney for the health club did not understand it and the court pointed this fact out.

Your release needs to be well written, needs to be written by an attorney, needs to be written by an attorney who understands what you do and the risks you are presenting to your guests/customers/participants.

If you are interested in having me prepare a release for you, download the information form and agreement here: information-and-agreement-to-write-a-release-for-you-1-1-17

For more articles on this type of releases found in health clubs see:

Sign-in sheet language at Michigan’s health club was not sufficient to create a release.            http://rec-law.us/28J1Cs8

For articles explaining why using the term inherent in a release is bad see:

Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.   http://rec-law.us/1SqHWJW

 

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

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State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.

A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

State: Florida, Supreme Court of Florida

Plaintiff: Abel Limones, Sr., et al

Defendant: School District of Lee County et al.

Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165

Defendant Defenses: No duty and Immune under 1006.165 and 768.1325

Holding: for the Plaintiff

Year: 2015

The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.

Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.

Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.

The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.

The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.

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

The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.

We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.

A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.

The court then must examine if the minimum requirements for a duty have been met.

As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.

In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.

Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.

The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.

The duty thus created or established requires a school to reasonably supervise students.

This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.

It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.

That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.

Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.

Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.

Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.

The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.

The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.

The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.

Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.

That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.

It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.

The court summarized its analysis.

We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.

So Now What?

So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.

AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.

It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.

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

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Florida AED Statute for Schools

Fla. Stat. § 1006.165 (2016)

§ 1006.165. Automated external defibrillator; user training.

(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.

(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.

(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.

(4) The use of automated external defibrillators by employees and volunteers is covered under ss. 768.13 and 768.1325.