Van Gordon, Etc. v. Portland Gen. Elec.

652 P.2d 817, 59 Or. App. 740
CourtCourt of Appeals of Oregon
DecidedDecember 10, 1982
DocketA7902-00508, CA 19901
StatusPublished
Cited by6 cases

This text of 652 P.2d 817 (Van Gordon, Etc. v. Portland Gen. Elec.) 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
Van Gordon, Etc. v. Portland Gen. Elec., 652 P.2d 817, 59 Or. App. 740 (Or. Ct. App. 1982).

Opinions

[742]*742THORNTON, J.

Defendant Portland General Electric Company (PGE) appeals from a judgment entered after a jury verdict awarding plaintiff damages for injuries sustained by plaintiff at Austin Hot Springs. The issues are whether the trial court erred (1) in denying PGE’s motions to dismiss and for a directed verdict, (2) in instructing the jury and (3) in ruling on the evidence.

Austin Hot Springs is located in a forested area on the upper Clackamas River. PGE allows public recreational use of the area and provides picnic facilities, entrance roads and parking facilities. The characteristic which accounts for the name and, presumably, the attractiveness of the area to bathers is that cool river water mixes with percolating hot water from underground springs. The effect is that pools are formed, either naturally or through the movement of rocks by bathers. The pools vary from moderate temperatures to 190 degrees Fahrenheit. Although steam is sometimes visible in the vicinity of the hotter pools, the pools are interspersed in a way that makes it generally impossible for bathers to know in advance what the precise heat level will be in a particular pool.

On May 20, 1978, plaintiff, then age 2, entered the hot springs area by car with his grandparents, the Barkers, and his four-year-old brother. They did not enter the area through the main entrance, and there was no sign at the entrance they did use to inform them that they were at Austin Hot Springs. They had not been in the area before. After using the picnic facilities, Mrs. Barker and the children went for a walk. On reaching a point on the river where they saw people bathing and wading, they decided to wade in a shallow pool near the bank. Thereafter, plaintiff moved from the water onto a rock and slipped and fell into an adjacent pool. He began to scream. Mrs. Barker was approximately 10 to 12 feet away; by the time she reached plaintiff, his legs were scalded. At the time plaintiff was injured, there were three signs in the hot springs area which read “HOT WATER.” However, the words on the signs were not visible from the route Mrs. Barker and the children followed to the river, and she did not see the signs before plaintiff was injured.

[743]*743Austin Hot Springs is subject to ORS 105.655 et seq., relating to “Public Recreational Use of Private Lands.” ORS 105.660 provides:

“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 by limiting their liability toward persons entering thereon for such purposes and, in the case of permissive use, 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.”

ORS 105.665 provides:

“Except as otherwise provided in ORS 105.675:
“(1) An 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.
“(2) An owner of land who either directly or indirectly invites or permits any person to use his land for any recreational purpose without charge does not thereby:
“(a) Extend any assurance that the land is safe for any purpose;
“(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
“(c) Assume responsibility for or incur liability for any injury, death or loss to any person or property caused by an act or omission of that person.”

ORS 105.675 provides, as relevant:

“Nothing in ORS 105.655 to 105.680 limits in any way any liability of an owner of land which may otherwise exist:
“(1) For his reckless failure to guard or warn against a dangerous condition, use, structure or activity on the land
a* ****’’

In Hogg v. Clatsop County, 46 Or App 129, 610 P2d 1248 (1980), we said:

“ORS 105.665 clearly relieves defendant of any liability for mere negligent behavior. However, ORS 105.675(1) * * * [744]*744provides for the retention of liability of landowners for reckless behavior. * * *” 46 Or App at 132.

PGE first assigns as error the trial court’s denial of its motion to dismiss or its motion for a directed verdict, because there was no evidence of recklessness. In Hogg, we adopted the test for the proof of recklessness under ORS 105.675 (quoting from Falls v. Mortensen, 207 Or 130, 295 P2d 182 (1956), overruled in part, Lindner v. Ahlgren, 257 Or 127, 134, 477 P2d 219 (1970)):

“ ‘ “* * * A defendant’s act is properly characterized as wilful, wanton or reckless * * * only when it was apparent, or reasonably should have been apparent, to the defendant that the result was likely to prove disastrous to the plaintiff, and he acted with such an indifference toward, or utter disregard of, such a consequence that it can be said he was willing to perpetrate it. The elements necessary to characterize an injury as wantonly or wilfully inflicted are (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. * * *” ’ 207 Or at 138.” 46 Or App at 132-33.

Both parties contend that they are entitled to prevail under this test; neither questions the correctness or completeness of the test.

The first issue presented is whether there was evidence to support a finding of recklessness in defendant’s activities and thereby deprive defendant of the immunity provided.

Viewed most favorably to plaintiff, the evidence established several facts.

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Related

Hackett v. Alco Standard Corp.
691 P.2d 142 (Court of Appeals of Oregon, 1984)
Van Gordon v. Portland General Electric Company
670 P.2d 1026 (Oregon Supreme Court, 1983)
Van Gordon v. Portland General Electric Co.
667 P.2d 532 (Court of Appeals of Oregon, 1983)
Van Gordon, Etc. v. Portland Gen. Elec.
652 P.2d 817 (Court of Appeals of Oregon, 1982)

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Bluebook (online)
652 P.2d 817, 59 Or. App. 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-gordon-etc-v-portland-gen-elec-orctapp-1982.