OTLA Trial Lawyer Summer 2021

27 Trial Lawyer • Summer 2021 RECREATIONAL LANDS IMMUNITY By Gene Hallman OTLA Guardian I t serves us well to remember the func- tion of tort immunities is to protect the negligent or reckless at the expense of the injured victim. Few statutes serve this purpose more vigorously and indis- criminately than Oregon’s recreational lands immunity law. ORS 105.672, et seq . It is one of the broadest in the coun- try, protecting both negligent and reck- less conduct and covering all land and water. As illustrated below, the reach of the statute is far. Its application is often tragic. In Brewer v. Department of Fish and Wildlife , 167 Or App 173, 2 P3d 418 (2000), review denied, 334 Or 693 (2002), a mother took her two children and a neighbor child to the swimming Gene Hallman hole on Catherine Creek near Union. It was located just below a newly con- structed fish migration dam. Decep- tively peaceful, the dam created a deadly hydraulic flow which acted as an under- tow trapping swimmers. There were no signs or fences. The children got caught. The mother rescued two before she and her daughter drowned. The wrongful death case was dismissed because the deceased were engaged in a recreational activity on land open to the public. In Stewart v. Kralman , 240 Or App 510, 248 P3d 6 (2011), the plaintiff went snowmobiling on a course set up by a local snowmobile club. He took a wrong turn into a private road that had been blocked off by a nearly invisible steel cable stretched across the road. It “clothes-lined” him, snapping his neck and rendering him a quadriplegic. As a result of complications from his injury, he died of pneumonia about two years later. His case was dismissed on the basis of recreational immunity and trespass law. In McCormick v State , 366 Or 452, 466 P3d 10 (2020), the plaintiff went to Lake Billy Chinook, accessed through a state park. He dove into the lake from a pier and hit his head on a submerged hidden boulder, suffering serious injuries. His injury case was dismissed on the basis of recreational immunity. Examples abound where the defen- dant, rather than fixing the defective swing set or the washed-out trail or warn- ing of danger, escaped liability because the plaintiff was recreating. Oregon law The immunity for owners of recre- ational lands is set out in ORS 105.682: an owner of land is not liable in contract or tort for any personal injury * * * that arises out of the use of the land for recreational pur- poses * * * when the owner of land either directly or indirectly permits any person to use the land for recre- ational purposes * * * [and] the principal purpose for [the person’s] entry upon the land is for recre- ational purposes * * *. McCormick , 366 Or at 455 [emphasis in the court’s opinion]. Each of the itali- cized words or phrases has generated debate. Who is an owner? “Owner” includes any person with a possessory interest in land from fee title to license. It includes both public and private entities. ORS 105.672 (3) and (4). To the extent the immunity is avail- able to a private individual, it is also available to the federal government. O’Neal v. U. S. , 814 F2d 1285 (9th Cir, 1987). In Johnson v. Gibson , 358 Or 624, 369P3d 1151 (2016), the court held that See Recreational Lands Immunity p 28