Liberty v. State

116 P.3d 902, 200 Or. App. 607, 2005 Ore. App. LEXIS 878
CourtCourt of Appeals of Oregon
DecidedJuly 20, 2005
Docket01-2082, A120225; 02-2066; A120226
StatusPublished
Cited by8 cases

This text of 116 P.3d 902 (Liberty v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liberty v. State, 116 P.3d 902, 200 Or. App. 607, 2005 Ore. App. LEXIS 878 (Or. Ct. App. 2005).

Opinion

LANDAU, J.

ORS 105.682 provides that, when an owner of land permits any person to use the land for “recreational purposes,” the owner is not liable for personal injury, death, or property damage that arises out of the use of the land for such purposes. At issue in this case is the scope of that statutory immunity.

The owner of land — the state — permitted plaintiffs to use its land for access to an adjacent parcel of privately owned land, where plaintiffs went swimming. On the way back from their recreational activity, while on the state’s land, plaintiffs were injured. They initiated actions for personal injury against the state, which were later consolidated. The state invoked the immunity conferred by ORS 105.682, arguing that plaintiffs, by using the state’s land to access the swimming area located on the adjacent parcel of private property, used the land for recreational purposes. Plaintiffs argued that ORS 105.682 does not apply because they used the state’s land not for recreational purposes, but merely for access to another parcel of land, that they intended to use for recreational purposes. The trial court concluded that, as a matter of law, such access to other lands for recreational purposes is itself a “recreational purpose” within the meaning of the statute. We agree and affirm.

The relevant facts are not in dispute. Willamette Industries and Kenneth Fan Rad own property on the north side of a portion of the Wilson River known as the “Fisherman’s Bridge” area. That property includes a “beach” area that both owners permit the public to use for swimming, fishing, and other recreational purposes. The state owns land on the opposite side of the river, which runs parallel to state Highway 6. The state has created a paved turnout area at the side of the highway and an “asphaltic concrete” path that runs from the turnout area along the highway for a short distance before veering down a short but steep vegetated slope to a footbridge that crosses the Wilson River and leads to the private beach area. According to the state, the path is “a walkway for recreational users of the Wilson River that allows them access to the bridge.” The state does not charge [611]*611for the use of the path. A map of the area, based on a hand-drawn exhibit — not drawn to scale — is as follows:

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Plaintiffs and their families drove down Highway 6, parked in the paved turnout area, walked down the asphaltic concrete path along the highway and down to the footbridge. They crossed the footbridge and entered the beach area of the private land on the other side of the river, where they swam and played on the beach. When it was time to leave, plaintiffs and their families left the private property, crossed the footbridge, and followed the state’s asphaltic concrete path back to the highway. At the top of the path, the pavement broke, and plaintiffs fell down the slope approximately 40 feet, injuring themselves in the fall.

Plaintiffs initiated personal injury actions against the state, alleging that the state was negligent in maintaining the asphaltic concrete path. The state answered, asserting that it is immune pursuant to ORS 105.682, and eventually moved for summary judgment on the same ground. In support of its motion, the state argued that ORS 105.682 confers immunity when a person enters land for a recreational purpose. According to the state, when plaintiffs used the [612]*612state-owned asphaltic concrete path, it was for the recreational purpose of obtaining access to the beach area. Plaintiffs responded that, at the moment that they were injured on the state’s land, they were not using that land for recreational purposes; rather, they were using it to gain egress from the privately owned recreational land across the river. Using the state’s land for mere access to and from another parcel, they argued, was not using the state’s land for recreational purposes, regardless of what they ultimately did on the other parcel.

The trial court granted the state’s motion. According to the trial court, “[cjlearly, the legislature intended immunity to apply to contiguous property. In this case, the contiguous property was the only way in and the only way out of the recreational property.”

On appeal, plaintiffs assign error to the trial court’s entry of summary judgment in favor of the state. They argue that they “were engaged in a ‘recreational activity (swimming) on property contiguous to the property owned by [the state]. The immunity provided by ORS 105.682 applies only to the owner of the land where the recreational use and the injury occurred. It does not provide immunity to contiguous landowners.” According to plaintiffs, the only activity that occurred on the state’s property was access to and from the footbridge and recreational area located across the river and in private ownership. Mere access, plaintiffs argue, is not a recreational activity. In the alternative, plaintiffs argue that, if ORS 105.682 does apply, the statute violates the remedies clause of Article I, section 10, of the Oregon Constitution.

The state responds with two arguments. First, it argues that we need not determine whether using its property for mere access to another property for recreational purposes is itself a recreational purpose within the meaning of the statute because another statute — ORS 105.688 — provides that the immunity provided in ORS 105.682 applies to any land that is adjacent or contiguous to a body of water. Because the land on which plaintiffs were injured is adjacent or contiguous to a river, the state argues, statutory immunity applies. Second, the state argues that, in any event, ORS 105.682 applies because plaintiffs’ use of state land for access [613]*613to the private recreational property across the river was itself a “recreational purpose” within the meaning of the statute.

The scope of the immunity conferred by ORS 105.682 is a question of statutory construction. We therefore examine the statute, applying the interpretive method described in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), to determine what the legislature most likely intended it to mean.

We begin with an examination of the text of the statute in its context. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
116 P.3d 902, 200 Or. App. 607, 2005 Ore. App. LEXIS 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-v-state-orctapp-2005.