Oregon trails in jeopardy as confusion reigns over ‘recreational immunity’ law

A trail near Boiler Bay on the Oregon Coast. (Photo: Jonathan Maus/BikePortland)

A law that was created to shield land managers and property owners from liability claims is under fire and public trail access — including bike trails — across Oregon could be in jeopardy. That’s the state-of-play due to a decision in July 2023 by the Oregon Court of Appeals in a case that hinged on the legal concept of, “recreational immunity.”

Oregon’s recreational immunity law (ORS 105.682) states, “an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes.” The idea behind this law is to encourage landowners (government entities or private companies/individuals) to keep trails open to the public without fear of being sued if someone is hurt using them.

Challenges to this law have happened before, but one if its biggest tests yet began when a woman slipped on a trail and broke her leg while walking near Agate Beach on the Oregon Coast in 2019 and sued the City of Newport for damages, saying the law shouldn’t apply because she wasn’t recreating at the time of her fall. Nicole Fields claimed the city was negligent because they failed to maintain a footbridge on a trail that led to the beach. Her lawyers argued their client was using the trail as an access route to her recreation — and was not technically recreating —  when she fell. A local judge didn’t accept that argument and ruled in favor of the City of Newport. But last summer, the decision was reversed by the Court of Appeals. When the Oregon Supreme Court refused to hear an appeal to the case in October, it raised questions about how to apply this important law.

Some cities and land managers are confused and worried that they will no longer be shielded from lawsuits if they keep trails open. According to the Salem Statesman Journal, several coastal cities have already closed trails and paused trail projects already. The Journal also reports that some legal experts feel closures are an overreaction, spurred by insurance industry scare tactics.

While the issue is debated and everyone waits for clarity from the Oregon Legislature, trail advocates are not sitting on their hands.

The Oregon Trails Coalition, a statewide nonprofit, sent an action alert to members last month that warned, “Oregon’s trails are under threat!” The organization’s top priority for the 2024 short session is to seek a legislative fix. “Oregon Trails Coalition is helping… to bring attention to the issue and encourage lawmakers to Protect Oregon Recreation by restoring recreational immunity in Oregon with new language that provides clear protections for land managers that open their lands to the public,” reads an OTC blog post published December 15th.

Observers say a fix to the law is imminent in the 2024 session that begins Monday, February 5th. If a bill is introduced, stay tuned for opportunities to testify. You can also make plans to join OTC and other advocates at their Trails Day at the Oregon Capitol event on February 12th.

Jonathan Maus (Publisher/Editor)

Jonathan Maus (Publisher/Editor)

Founder of BikePortland (in 2005). Father of three. North Portlander. Basketball lover. Car owner and driver. If you have questions or feedback about this site or my work, feel free to contact me at @jonathan_maus on Twitter, via email at maus.jonathan@gmail.com, or phone/text at 503-706-8804. Also, if you read and appreciate this site, please become a supporter.

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Steph Noll
1 month ago

While we don’t have a posted bill yet, the following language regarding recreational immunity was introduced last Friday as part of a civil omnibus bill in an informational hearing in the Senate Judiciary Committee: “temporary adjustments to the recreational immunity statutes, pending stakeholder input about what may be needed in 2024 while workgroup discussions continue during the interim.”

My impression is that a fix being prioritized this session is not a given in the legislature, and it would be very positive for folks concerned about seeing a fix in 2024 to let their legislators know that it must be a priority in order to keep existing trails open and keep trail development projects on track.

Charley
Charley
1 month ago

“You can also make plans to join OTC and other advocates at their Trails Day at the Oregon Capitol event on February 12th.“

Do y’all think we will be melted out by then??

In all seriousness, this issue is concerning. On the one hand, the City and other land managers should be responsible for maintaining infrastructure.

On the other, given the possibility of someone seriously injuring themselves while on any piece of infrastructure (heck, people have been breaking bones all over Portland, just walking on sidewalks this week), allowing for this easier kind of liability is incredibly expensive.

Landowners could avoid higher insurance premiums by simply closing all their trails, right?

That sounds even worse.

There are a lot of areas of life in which ultimate risk and responsibility never get priced in- oil and gas companies sure don’t pay for their pollution! Is it some artifact of the legal system that the same is not true of *trails*?

What’s the solution, here? Is it some legal, technical language about “gross negligence” or something like that?

rick
rick
1 month ago

Will governor Tina do something? Kate Brown signed the 2017 freeway industrial complex bill.

Chris I
Chris I
1 month ago

saying the law shouldn’t apply because she wasn’t recreating at the time of her fall. Nicole Fields claimed the city was negligent because they failed to maintain a footbridge on a trail that led to the beach. Her lawyers argued their client was using the trail as an access route to her recreation — and was not technically recreating — when she fell

AAAAAAAAAAAHHHHHHHHHH WHAT

Fred
Fred
1 month ago
Reply to  Chris I

You nailed it, Chris. The law should say that anyone who chooses to use a trail does so at her/his own risk, and that’s it. If you are on the trail, you are de facto recreating and the landowner isn’t liable.

John V
John V
1 month ago

This whole situation is frustrating and stupid. In a world where our government won’t just take the land for uses like this (which they should), if private owners open up a piece of land for people to use, they should be completely immune. You can see what you’re walking or riding a bike on, you watch where you’re going. If you walk “in nature” (somewhere away from an urban environment), then you have to deal with you know, dirt. Grass. Leaves. Ice if it’s icy. That’s on you, you have to know how to walk your ass around and if you fall that’s on you. This shouldn’t be tricky.

On the other hand there are issues like ADA to consider. I don’t know, as has been pointed out in other articles relating to ADA, not every public trail can (or should!) be made ADA compliant, so making everything perfectly smooth and free of obstacles and ways to hurt yourself is completely unreasonable.

To me I feel like trails and walking paths should be a different category of thing than anything made for transportation (i.e. sidewalks). No liability, for private or public entities.

Like, the beach is full of sand and shells, and it’s a place people expect to walk barefoot on. But you can cut yourself out there. You could get hit by a wave. That’s not something we need to solve, this is just life.
If I go walk the Pacific Crest Trail and I slip off and fall in a ravine, there isn’t and shouldn’t be anyone I can sue for that. Even if the trail was poorly maintained.

I have no idea how this went anywhere.

jakeco969
jakeco969
1 month ago
Reply to  John V

“That’s on you, you have to know how to walk your ass around and if you fall that’s on you. This shouldn’t be tricky.”

What?!? You mean we should be personally responsible for ourselves at some times??

Sigh, I couldn’t resist:-)
I actually completely agree with you on this.

Middle of the Road Guy
Middle of the Road Guy
1 month ago

I’m waiting for Moorish Sovereign Citizens to join the discussion.

Jeff Rockshoxworthy
Jeff Rockshoxworthy
1 month ago

Unfortunately all they usually have to offer is a link to their GoFundMe…

ED
ED
1 month ago

Good faith question for legal experts here: What is a government’s liability on transportation facilities for injuries? If Newport was sued because the plaintiff claimed to be using the trail facility for transportation, not recreation, and thus recreational immunity doesn’t apply, does that mean that cities ARE liable for injuries that occur on transportation facilities? I’m struggling with what that would mean practically speaking since we sadly see many injuries and fatalities on government-owned transportation facilities. If the City leaves a bunch of gravel on the roads and I slip and fall, can I sue them for not properly maintaining their transportation facilities??

Fred
Fred
1 month ago
Reply to  ED

Yes, but I think there’s a specific carve-out for streets and roads maintained by gov’t entities – they are in a class of their own, unlike trails.

I hope an attorney can respond with specifics.

J_R
J_R
1 month ago

I’d like to know if the plaintiff’s sidewalk and her lawyer’s sidewalk are in perfect condition and not slippery right now. They seem to expect that all city facilities are. What is their personal standard?

dw
dw
1 month ago
Reply to  J_R

Clearly the answer is preemptively close all sidewalks.

Champs
Champs
1 month ago

This has been stewing since last summer and stalled in the courts that fall, but is only slated for our ever-nimble state government to resolve this spring.

You just never know what wins the urgency lottery around here.

John D.
John D.
1 month ago

Just want to throw this out there. First, I want to be clear that I don’t agree with the interpretation of the law the person is using to sue, and I’m very concerned about what this could mean for any number of public recreation facilities. That said, this might be a symptom of the healthcare system in our country rather than someone trying to be greedy.

I don’t know the details in this case, but it’s easy to imagine someone who gets seriously injured, and is faced with a tremendous amount of medical debt, might look for any option available to them. Medical debt could impact them for the rest of their lives.

Mike S
Mike S
1 month ago
Reply to  John D.

I don’t know about that. This issue is so stupid. Typical Oregon, though.

Fred
Fred
1 month ago
Reply to  John D.

My understanding is that it was the City of Newport’s insurer – as in liability insurance company – that recommended the trails be closed. In other words,they don’t want to have to pay.

So I would blame the insurance industry before looking at the health-care system. (I know health insurance has its own problems.)

Marisa Haines
Marisa Haines
1 month ago

Have any of you used a publicly available private access to a beach on the oregon coast? There are a ton of posted signs about how the access may be dangerous and still people use them. The next step is people who own the property will just post trespassing signs. No liability. No access.

Rondell B
Rondell B
1 month ago

The woman at Newport trying to get a quick payday for a careless injury needs to be doxxed. These kind of people screw everyone else chasing lawsuit sucks need to be exposed so other people won’t be motivated to try.

Fred
Fred
1 month ago
Reply to  Rondell B

I disagree. No one deserves to be doxxed.

Better plan: Write to your state reps and senators and ask that the law be fixed.

Charley
Charley
1 month ago
Reply to  Rondell B

“…needs to be doxxed.”

Nope. That is entirely the wrong attitude to bring to this.

PS
PS
1 month ago
Reply to  Rondell B

Fortunately our legal system agrees and you don’t get to sue a city without including your name in the lawsuit.

Watts
Watts
1 month ago
Reply to  Rondell B

The woman at Newport trying to get a quick payday for a careless injury needs to be doxxed. 

Seriously? Why not send a SWAT team to her house or set her parents’ car on fire?

Fred
Fred
1 month ago
Reply to  Watts

Good idea – like the good Portlanders who torched Rene Gonzalez’s Honda.

Priscilla
Priscilla
1 month ago

Lawyers always win ($) and the public gets screwed. I hope this will be fixed. Is there an easy action alert from the OTC so I can contact my legislators?

Fred
Fred
1 month ago

Way to go, Court of Appeal! – saying that walking to recreation is not the same as recreating. What the hell??!!

They should call this ruling “Leave no attorney behind.”

Chris Thomas
1 month ago

Thanks Jonathan for your coverage here. This is a complex issue and I want to share a few thoughts and points of clarification.

The plaintiff in this case, Ms. Fields, has not received any compensation for her injuries. Her case is set for trial, and she will lose if a jury decides either 1) she was walking for recreation, not transportation, at the time she fell, or 2) she was more than 50% at fault for causing her injuries.

The appeals court in Fields said that a jury, not a judge, should decide whether Ms. Fields was using the trail for recreation (creating immunity) or transportation (no immunity) at the time she fell.

Based on the Fields case, an insurance company for small towns in Oregon, CIS, put a memo out declaring that the court had “effectively ended recreational immunity.” In fact, recreational immunity is alive and well, but CIS wishes that the judges had decided Ms. Fields was recreating at the time she fell and thrown her case out on that basis. In our civil justice system, questions of fact are decided by juries, not judges, which is why the Fields court said the issue should go to the jury. Again, a jury could still decide that Ms. Fields was recreating and she would lose on that basis.

Unfortunately, the CIS narrative that recreational immunity no longer exists has gained traction, causing many small towns to close trails.

Why does Ms. Fields’ purpose in using the trail–transportation or recreation–matter? Imagine she was walking to the beach not to enjoy the scenery, but rather to work at her job as a lifeguard (or picking up trash, or as a park ranger, etc.). If she fell on an extremely slippery bridge on a City-owned path, and that was the only way for her to access her job, shouldn’t she be entitled to bring a case against the City for poor infrastructure? Of course, she could still lose that case if a jury found the City acted reasonably, or that she didn’t walk carefully enough, but should her case be tossed out at the outset because she happened to be walking on a public trail where people often recreate?

An analogy for Portland bicyclists: If I am riding to work on the Springwater corridor, and a City worker accidentally left a big pile of lose gravel on the path, causing me to crash and sustain injuries, should I not be allowed to sue the City because I was on a path commonly used for recreation? Again, if a jury later found that I rode for recreation, or that I wasn’t riding carefully enough, I could still lose for either of those reasons.

I agree that private landowners who open their property up to the public for recreational use should not have to worry about being sued. But there are many public facilities, like the Springwater corridor, where I think it is good for the City to have an incentive to keep them safe, as they are not only used for recreation but are also an important part of our transportation network. And I worry that the reaction to Fields case will be to say there is immunity on any “recreational” facility, regardless of why or how it was being used, which could have unintended consequences that uniquely affect vulnerable users.

Charley
Charley
1 month ago
Reply to  Chris Thomas

It’s good to get a more informed perspective here.

Is there a way to split the baby in this case? A way to incentivize maintenance, and not incentivize closing trails down?

Relevant:

https://bikeportland.org/2023/05/25/property-owner-pays-claim-of-rider-who-crashed-on-riverfront-path-bumps-375403/amp

Steph Noll
1 month ago
Reply to  Charley

I think the way for us to incentivize maintenance is to advocate for more resources for our public agencies to invest in trails. In Oregon, agencies aren’t allowed use gas tax dollars outside of the road right of way, and we woefully underinvest in parks and trails. More lawsuits will only divert public agency funds from activities like trail maintenance and development.

lvc
lvc
1 month ago
Reply to  Chris Thomas

Well, if I was on the jury in that Springwater hypothetical, I’d rule for the City.
I couldn’t care less if the cyclist was there for transportation or recreation, it’s 10000% the cyclist’s responsibility to ride whatever manner is appropriate for the conditions. If the conditions are that there is some gravel on the path, then ride like there’s gravel on the path.

Chris Thomas
1 month ago
Reply to  lvc

And I would trust you, as an Oregon juror, to make the right decision based on all the facts of the case and the applicable law. CIS does not think that Oregon juries should be allowed to decide that case.

John V
John V
1 month ago
Reply to  Chris Thomas

Well, this makes it make perfect sense. Thank you for this information.

And yeah, if this is a public facility, they should probably have to maintain it to some standard. A bridge can get really slippery if it’s wood and grows some algae (or whatever it is) on it. It does make me wonder though, is it really reasonable for there to be any liability for minor maintenance issues like this? Taken to the logical conclusion, it would be physically impossible for a city to actually make sure that all the paths are injury-proof. A single fallen leaf could cause a crash, or a tiny patch of gravel kicked onto the path by a pedestrian could cause a crash. Is it the city’s responsibility to clean it up? Sure. But can any reasonable person think even the best, most well funded city in the world could actually do that? Not a chance. That’s not reasonable. And furthermore, for actual recreational trails, I don’t think people expect or even want such perfect maintenance. It looks and feels out of place to walk on a clean-room pristine path in a forest.

As expected, it’s a greedy overreaction by an insurance company that’s at the root of this mess. But also, seems like there is some unreasonable amount of even potential liability. Maybe the idea is a case like this gets decided, and that sets a precedent so that next time a judge CAN just throw out the case. That would make sense to me.

J_R
J_R
1 month ago
Reply to  John V

I agree with your analysis and conclusions, but object to your blaming a greedy insurance company. I’m not in anyway associated with the insurance industry, but checking the financial performance of the insurance industry over the last ten years, it has performed somewhat more poorly than the S&P 500 index. (Exchange traded fund IVK versus IVV, for example)

For all those who think the insurance industry, homebuilders, landlords, or whoever is getting rich, they have the opportunity to invest (as little as $1000) in that sector and collect their share of those riches. If it really is the road to riches, you can donate to good causes or keep it and enjoy the good life.

John V
John V
1 month ago
Reply to  J_R

Simplifying it to “greedy insurance company” was just shorthand. It is safe to say they are overreacting. At least that seems to be the opinion of Chris Thomas, i.e. they sent out the memo declaring recreational immunity effectively dead. That is hyperbole, as clearly no conclusion can really be reached about it yet. They’re overreacting and I don’t think they’d be doing that if they didn’t find it somehow financially beneficial to them.

Chris Thomas
1 month ago
Reply to  John V

On your first point, even if a plaintiff survives recreational immunity, they still must show that a City was negligent, that the negligence caused their injury, and that the plaintiff was not mostly at fault for what happened. I do not think any Oregon jury would find a City negligent for failing to pick up every individual leaf on a trail.

On your last point, I think that many people will be watching the jury in the Fields case (if it in fact proceeds to trial) to see what they decide based on all the facts and the current law. The verdict will be a data point for other potential plaintiffs and their lawyers to consider when deciding whether to invest significant time and resources to take a case to trial.

PS
PS
1 month ago
Reply to  Chris Thomas

Yes, her case should be tossed out at the outset because it is an unreasonable burden to expect the everyday taxpayer to fund legal bills instead of city services for something that should very obviously fall under personal responsibility. The distinction between transportation and recreation matters because she didn’t HAVE to be there, she chose to be there and there should be some assumption of risk for making that decision. Also, if she were using this path as a means to get to her job, she would likely be covered under workers compensation insurance. It is unlikely the “coming and going” doctrine would apply to someone needing to use a beach trail to get to their job.

In the example of the Springwater, you describe negligence on behalf of the city employee who left the condition of the path materially different than what would be expected. That seems to be an apples vs oranges comparison. A slippery bridge in a place with significant annual rainfall should not be a surprise, particularly a bridge that she crossed 2 hours previously.

qqq
qqq
1 month ago
Reply to  Chris Thomas

Those comments are great for providing context.

You brought up what I worry about. Anyone walking or biking for transportation is going to eventually be using routes that are also used for recreation. Giving the route owners immunity from being held responsible for poor conditions seems like it can set up the situation where drivers who are injured driving on a road can sue the road owner (City, County, etc.) for poor conditions that lead to their being injured, but people walking or biking can’t unless they stick to standard streets and sidewalks.

That’s not fair or desirable, especially when a key to making non-driving transportation options involves creating more routes, like paths, that are not regular, drivable streets.

Of course it’s also not desirable for cities, etc. to decide the solution to avoiding liability is to stop building those routes (or keeping existing ones). But then having liability doesn’t seem to stop them from building streets for driving, or parking lots.

Fred
Fred
1 month ago

I agree – the distinction is frankly ludicrous, and I feel it keenly whenever I’m out on the roads on a snowy / icy day like today.

Every car that passes seems to have a sneering driver who is annoyed that I’m in the road and in his way (yes, it’s a “he” 95% of the time; women drivers seem to be more patient, generally). But how does the driver know I’m “recreating”? I could be on my way to pick up medicine, or on my way to work.

The drivers don’t actually know what the purpose of my travel is, but they assume it’s recreational b/c I’m on foot or on a bike. Car travel is assumed to be important and necessary, but someone in a car can be on a beer run.

Okay – bad example, but you get my drift.

Chris Thomas
1 month ago

Thanks Jonathan. Unfortunately, public entities in Oregon have already made the argument in court filings, based on the current law, that participating in a group bicycle ride on public roads falls under recreational immunity and therefore there can be no liability for dangerous roadway conditions. Specifically, ODOT made this argument against a cyclist riding on the Historic Columbia River Highway. Happy to discuss further.

Ted Buehler
1 month ago

Folks, if you care about this, this would be a good time to contact your Oregon State Senator and Representative.

The first reply, from Steph Noll, says it all.

Note that Steph is the ED of the Oregon Trails Coalition, a respected, organized, active advocacy group dedicated to maintaining and developing trails in Oregon. (It’s the type of organization we used to have in bicycling with the BTA. And could really use again!) (Note also that Steph was part of the BTA back when the BTA was still a strong, large statewide organization — Steph was with them for 9 years, and was Deputy Director when she moved on

I don’t know much about the Oregon Trails Coalition, but a quick Google Search shows them to be strong, organized and articulate. Also probably host nice social gatherings.

You can find your Senator and Representative here

Even if, as Steph says, it’s unlikely to get on this year’s agenda, your letter will let your representatives know that you care about this issue, and may motivate them to intervene one way or another to keep trails open until it finally gets back to the legislature to clean up the wording or whatever needs to be done to enable private landowners to have the public use their land for recreation.

Thanks to Jonathan for publishing this here, and for Steph and Oregon Trails for keeping on top of this issue.

Ted Buehler

Steph Noll
1 month ago

If we don’t address the issue this session, I think we can all definitely expect to see more of this:

no-access
Chris I
Chris I
1 month ago
Reply to  Steph Noll

Was the path physically blocked? I was just down in Lincoln City and one of the boardwalk trails on Devil’s Lake was blocked, but I assumed it was due to the freezing rain. There was no posted sign.

cct
cct
1 month ago
Reply to  Chris I

I wonder if that sign allows for access, but gets county off hook if someone is using the trail when ‘not allowed’ and gets hurt. If that’s the worst-case outcome it isn’t the end of the world. Adding civil or criminal penalties would be.

cct
cct
1 month ago
Reply to  cct

Also, if nothing is permited, does that make evahthang ferbiden?

Hunnybee
Hunnybee
1 month ago

It’s now clear that all public land and public property should be entirely off limits to all people. We just can’t afford to let someone get injured while on streets, sidewalks, parks, trails,
beaches, esplanades, paths.
Close them all down and keep everyone in their homes forevermore, where if they get injured then at least they only have themselves or their landlords to blame and sue. America!

Itsyk
Itsyk
1 month ago

I sat on a jury in Multnomah County a few years back, for a civil case where someone sued the city because she fell off her bike when riding on the Eastside Esplanade. Her complaint was that a spot that was more-or-less dangerous for bikes (I’ve ridden over it many times, but never quickly, as there are usually people nearby, and in front of me) wasn’t marked clearly; and that she was not recreating because she was showing her new tenant – someone new to the city – the east side of the river so that he’d be oriented to the city, roughly, and she argued that this was a landlord responsibility of hers.

She lost her case to the City of Portland handily, on the question of ‘was she recreating on the Esplanade.’

John V
John V
1 month ago
Reply to  Itsyk

Weird. I would have thought that was a clear cut definition of “not recreational”. Definitely seems job related (although maybe the facts of the case would change my perspective).

On the other hand, I would hope she lost her case on many other grounds. In a car if you’re going too fast and you crash, I think that’s usually entirely on the driver. Failure to negotiate a turn or something. This obstacle that she went over too fast sounds like something a person should just have to know how to ride on as a bike rider.