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Willamette Week: Legal concerns cloud Gateway Green bike park and other city properties

Community Cross at Gateway Green-1
Should volunteers or city employees who work on parks facilities — like the upcoming Gateway Green — be open to liability lawsuits?
(Photo: J. Maus/BikePortland)

NOTE: Please read our important update to this story posted on Thursday 2/9 at 5:00 pm.

I didn’t know much about Oregon’s “recreational immunity” law when I woke up this morning. But since reading, “Portland’s First Mountain-Bike Park Could Be Crippled by a Court Decision” in the Willamette Week I’ve given myself a crash-course. And so should you.

That article lays out the case that a 2016 Oregon Supreme Court decision throws access to public parks (and all public lands more broadly) into question due to potential legal liability for landowners.

In a nutshell, that decision found that employees and volunteers of landowners are not covered by the same legal immunity as the owners of the land (as laid out in Oregon’s 1971 Public Use of Lands Act). For more on the ruling and the existing law, check out this article.

And here’s more from the Willamette Week:

The law, passed in 1971, said that if someone got hurt while engaging in recreational activities—say hunting, fishing, hiking or running—the landowners couldn’t be held legally responsible. The idea was to make more of Oregon’s natural beauty open to everyone and grant landowners, public and private, so-called “recreational immunity.”

In 2009, a city parks worker dug a hole in Portland’s Tom McCall Waterfront to fix a sprinkler. He was called away and left the hole uncovered. A blind woman named Emily Johnson was jogging in the park and stepped in the hole, resulting in serious injuries.

In its ruling on Johnson’s case last year, the state Supreme Court departed from the historical interpretation of “recreational immunity” instead, and found the city parks worker and his supervisor could be held personally liable because landowners’ employees and agents were not explicitly granted immunity by law. (On Jan. 30, the city of Portland agreed to pay Johnson $250,000 on behalf of its parks workers.)

In other words, while landowners remained safe from lawsuits, employees and volunteers who worked on that land were not. The ruling opened what the League of Oregon Cities and private landowners say is a major legal risk because while landowners are still legally immune, they are likely to have to cover the legal liabilities of employees and volunteers.

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The story goes on to say that some park facilities around Oregon have already shut down when officials learned of the liability and were unable to afford a proper insurance policy.

Gateway Green was singled out by the Willamette Week because it’s owned by Portland Parks & Recreation bureau and it’s slated to open this summer with several new bike trails. Maintenance and upkeep of the park will be done by a mix of volunteers and city staff.

But what about other Parks properties throughout Portland? There are dozens, if not hundreds, of places in the region where the public has free access to recreational facilities thanks to a willing landowner. If landowners begin to realize their legal liability, will they shut these places down? Are the insurance policies held by advocacy and “Friends of…” groups robust enough to stave off potential tort claims?

We’re in the process of hearing from the City of Portland and other sources to get clarity. I’m quite surprised that given the magnitude of this issue that the City of Portland doesn’t already have a statement to make.

While we wait to get updates, we can confirm that there is legislation in Salem to remedy the situation.

Senate Bill 327 and its companion House Bill 2483 both seek to extend the “recreational immunity” currently given to landowners to employees, volunteers and other “agents” when those people are “acting within the cope of duties” of the landowner. If either of those bills pass it would end a lot of concern and confusion we’re hearing now from advocates and volunteers about the future of their parks. The laws have been deemed emergencies and would be effective immediately upon passage. The Senate Bill has been referred to the Judciary Committee (whose Chair, Senator Floyd Prozanski from Eugene and one of its members, Michael Dembrow of Northeast Portland are both bicycle riders) but no hearing is currently scheduled.

As the Willamette Week story points out, there is opposition to the bills coming from the Oregon Trial Lawyers Association (who wants to make sure people still have the ability to file lawsuits); but there’s also significant lobbying support to fix the liability gap and extend the immunity to volunteers and employees.

The issue is one of the City of Portland’s 2017 legislative priorites. And the Coalition of Oregon Land Trusts — a group whose support includes Metro, the Association of Oregon Counties, the League of Oregon Cities, the cities of Salem and Medford, and many others — also supports extending the immunity. “Recreational immunity is the cornerstone principle that secures the public policy goals of the Oregon Public Use of Lands Act,” the group wrote in a one-pager about the current legislation.

Stay tuned as this is a developing issue.

In the mean time, the Big Dig out at Gateway Green on Saturday is going full steam ahead.

— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org

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