Posted in Oregon Public Use of Lands Act
The Oregon Public Use of Lands Act, ORS 105.672 et seq., provides immunity from tort liability to
private and public owners of land that is made available to the public for
recreational purposes. The purpose of the Act is to encourage both
private and public landowners to open their lands to the public.
In Johnson v. Gibson, 358 Or 624 (2016), the Oregon
Supreme Court answered the question posed to it by the Ninth Circuit Court of
Appeals: Does the recreational immunity provided in the Public Use of Lands Act
extend to employees of a landowner? The Oregon Supreme Court found that
it did not.
The case involved a personal injury claim brought by a legally blind jogger
injured by stepping into a hole created by a City employee in a public park
owned by the City of Portland. The plaintiff filed the claim for negligence
and violations of the ADA in federal court and named the City and the two
responsible employees. The City, claiming recreational immunity under the
Public Use of Lands Act, filed a motion to substitute the City as the sole
defendant pursuant to a provision in the Oregon Tort Claims Act. The
maneuver, if allowed, would have resulted in dismissal of the case.
However, the trial court denied the motion, finding that the substitution
would leave the plaintiff without a remedy for her injury in violation of the
remedy clause of the Oregon Constitution.
In a separate summary judgment motion, the ADA claim was dismissed. The
trial court declined to retain supplemental jurisdiction over the negligence
claim and dismissed the case. The plaintiff refiled the negligence claim
against the two City employees in federal court, invoking diversity
jurisdiction.
In the second case, the City employees filed a motion for summary judgment
contending that they qualified as “owners” for purposes of the Public Use of
Lands Act and were therefore entitled to recreational immunity.
Alternatively, the employees contended they were entitled to exercise the
City’s recreational immunity under agency principles. The trial court, finding
the employees did fall within the Act’s definition of “owners,” granted the
motion and the case was appealed to the Ninth Circuit, which certified to the
Oregon Supreme Court the question of whether tort immunity provided to
landowners under the Act extends to employees of the landowner.
The Oregon Supreme Court applied the principles of statutory construction
to the definition of “owner” to dispatch the defendants’ argument that the
employees were like a “tenant, lessee, occupant or other person in possession
of land.” The Court also rejected the defendants’ alternative argument
that the employees were immune from tort liability because they enjoyed the
same privileges and immunities as their employer – an indisputable “owner”
under the Act. The Court held that whether the immunity of the employer
(principal) extended to its employees (agents) turns on whether that immunity
is personal to the principal or extends to its agents. The Court cited a
number of sovereign immunity cases recognizing a distinction between the
liability of local government as a landowner and the liability of employees and
agents of the government. These holding are based, in part, on the
tension between the Oregon Constitution’s remedy clause and the doctrine of
sovereign immunity.
The Court held that whether an immunity is personal
to a principal or extends to agents is a “legislative choice subject to
constitution bounds.” The Court examined the Act and its legislative history to
determine if the legislature intended to extend recreational immunity to a
landowner’s employees and agents and found nothing to indicate that the
legislature chose to extend recreational immunity to a landowner’s
employees. Thus, the Court found that an employee of a landowner is not
protected from tort liability under the Public Use of Lands Act.
As a practical matter, the Oregon Supreme Court created a gaping hole in a
landowner’s immunity from tort liability under the Act. Most, if not all,
landowners will ultimately be responsible for the negligence of their employees
that results in injury to a member of the public. It will be interesting
to see if this case has a chilling effect on private landowners making their
lands available to the public for recreation.
No comments:
Post a Comment