Recent court decisions change recreational immunity

Public agencies face legal implications over facility access, negligence

Recent court decisions have increased liability for organizations like the Port of Hood River and Mt. Hood Meadows who allow public recreational use of property that they own, without much guidance for these organizations on what they should do to protect themselves from damage claims going forward.

On Aug. 1, 2018, the Oregon Court of Appeals released two decisions — Ortega v. Martin and McCormick v. State of Oregon — related to this law that limit recreational immunity, increasing uncertainty amongst landowners about how recreation immunity protections apply to them.

Recreational immunity, laid out in Oregon law (ORS 105.682), protects landowners from damage claims for injuries related to public recreational use allowed on their property.

The Ortega case involves a 14-year-old who collided with a dory boat while surfing in Pacific City, sustaining serious injuries. His family sued on the state on the grounds that the state had been negligent by failing to provide adequate warnings of the risks posed by dory boats to surfers, and the Court of Appeals agreed with the plaintiff that the state was negligent.

In the McCormick case, which involves a man who sued the state for negligence after he dove into Lake Billy Chinook and hit his head on a submerged boulder, the Court of Appeals sided with the plaintiff and cited the Ortega ruling in their decision.

In both cases, the Court of Appeals interpreted the word “permit” in the statute to mean that landowners with recreational immunity have the authority to exclude the public from using the property for recreational purposes but choose to allow such use — suggesting that if a landowner can’t prohibit people from using their property for recreational use, then the landowner can’t permit people to use the property and therefore can’t claim recreational immunity.

For the Port of Hood River, this generates a potential problem because — while they can limit public use of the shoreline and other areas adjacent to the Columbia River — the port can’t prohibit public use of river itself. Under these two 2018 decisions, the port is likely liable for injuries sustained in the Columbia River related to an adjacent port property, such as a launch or rigging site.

“It doesn’t make the port liable for injuries generally, but it does potentially make the port liable for negligence should those injuries occur,” said Port Counsel Garrett Sharp.

To reduce the risk of potential negligence claims, Sharp recommended that the port add signs informing the public of the risks associated with recreational use in that area and that persons using port property for recreational use assume all the risks of doing so; however, the port would still be potentially liable.

“It’s an issue that many organizations are facing at this point,” Sharp said. “I anticipate that there is going to be some kind of (legislative) clarification.”

Sharp showed examples of some signage that Mt. Hood Meadows recently added to their sites in response to these court decisions, as well as changes they made in their path structure so that guests would be more likely to pass by the signs before entering the recreational area.

Mt. Hood Meadows could not be reached for comment before press time.



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