ODOT tries ‘recreational immunity’ argument to avoid liability for crash on popular cycling road

The location of a bicycle crash in 2019 that led to a lawsuit against ODOT. Note the patched pavement in the lower right (smoothed over in this Google Maps image).

I have long urged people to avoid the trap of bad-faith arguments about whether or not a particular bicycle ride is for recreation or transportation. The suggestion that some bicycle trips are less important because a person is recreating has always struck me as a sneaky, paternalistic attempt to marginalize cycling.

We often hear people point out that a bicyclist in spandex is less important than other road users because they’re just training or on a fun ride; but we never hear people frame car trips in the same way. People driving cars are always doing serious things, the thinking goes, and people on bikes are just out on a lark. It’s a distinction with a difference, because trips made for “recreation” will always have much less political power than those made for “transportation.”  And in that context, once you cede this semantic ground, bad things are more likely to happen.

An example is a legal case that involves the State of Oregon and a man who crashed while biking on the Historic Columbia River Highway in 2019. This case was brought to my attention in October 2022 by a local attorney named Charley Gee. Gee had seen a story on BikePortland about Oregon’s Scenic Bikeways program and wanted to warn me that the Oregon Department of Transportation might use the status of certain bike routes as a way to shirk liability for maintaining safe roads.

Gee shared a lawsuit he filed against ODOT on behalf of a client (who asked to remain anonymous) who was riding on the Historic Columbia River Highway on April 24th, 2019. His client crashed while riding over a depression in the road that was left after repair work by an ODOT contractor. The crash happened about 200 feet west of the Stark Street Bridge (see photo above) and resulted in a fractured right femur (that required surgery), major bruising, and a torn rotator cuff. Gee sought $1.04 million for his client.

“ODOT failed to inspect the highway after it had been paved and striped, failed to repair the hole that [the bike rider] eventually struck — after earlier receiving notice that other cyclists had struck it and crashed — and failed to warn cyclists of the hole,” the plaintiff’s complaint read. According to Gee, the hold, “Constituted an unreasonably dangerous condition that could not be encountered with a reasonable degree of safety by cyclists.”

But lawyers for the State of Oregon denied all the claims and asked a Multnomah County Circuit Court judge to dismiss the case. Their argument was that the bike rider was engaged in a recreational bike ride and therefore the state should be immune from liability under Oregon Revised Statute (ORS) 105.668, a.k.a. the “recreational immunity” law.

In documents filed with the court on January 19th, 2022, Senior Assistant Attorney General Todd Marshall argued that ODOT, “Is immune from Plaintiff’s claim by the doctrine of recreational immunity,” and that, “Plaintiff is not relieved from his obligation to exercise care in the use of the State’s land with regard to the bicycling activity being engaged in.”

In a court filing on February 11th, 2022, the State asked Gee’s client 18 questions. They used two of his answers to cement their immunity argument:

Plaintiff was engaged in recreational bicycle riding at the time of the accident. Admit

Plaintiff was engaged in a Portland Bicycle Club recreational bike ride event at the time of the accident. Admit

The State’s lawyers used these admissions against the rider. They wrote in the conclusion of their motion for dismissal, “the very section of the Historic Columbia River Highway where the injuries the subject of this litigation occurred, is considered one of the most popular cycling routes in the State of Oregon,” and since the rider crashed, “while engaged in a recreational bike riding event,” ODOT should be immune from liability.

Everyone reading this will likely agree that riding fast on a public road with two other people should not be considered a, “bike riding event,” even if the ride was organized by a bike club.

Gee and his legal team responded strongly to the State’s contentions. The defendant, they said,

“Makes no effort to apply the statute as it has been interpreted to the particular facts of this case, and completely ignores the irrational, unreasonable, and absurd implications of the legal conclusion that (presumably) ODOT wants this court to reach.

… merely because plaintiff was cycling recreationally—instead of, for example, commuting to work—and crashed on a state highway, the state argues that, as a categorical matter, it is entitled to recreational immunity, simply by virtue of the fact that it is state land.

ODOT is not entitled to the blanket immunity… recreational immunity does not attach to non-recreational property—such as a road or sidewalk—even though that property may be used for recreational purposes.”

The plaintiff’s lawyers leaned heavily on a 2016 case (Landis v. Limbaugh) for precedent. In that case, the Court found that a landowner (ODOT in this case) must “make a volitional decision” to designate land for recreational use by the public. And if a landowner doesn’t have authority to prohibit recreational use — like on a public highway — it lacks the authority to make that decision.

For their part, the State argued that immunity should apply if a landowner, “directly or indirectly permits recreational use of its land,” and that “permit” can involve “mere tolerance” of an activity, or even allowing it to happen.

Multnomah County Circuit Court Judge Andrew Lavin, ruled against ODOT.

But Gee, the bike rider’s lawyer, said the judge’s decision was based on a technicality because the State didn’t provide enough evidence in their motion to dismiss the case that the highway was held open specifically for recreational use.

Another lawyer I talked to for this story said, “ODOT lost the motion on a separate procedural issue. The court did not rule on the merits of this argument; but they clearly thought the argument was worth making.” 

Gee said this is a serious issue that bicycling advocates should watch closely. He said since discretionary immunity (where a DOT can be liable if they were aware of a safety issue, but failed to address it) arguments are losing in court more often, they are “casting around for a new approach” with these recreational immunity arguments. He added that designating certain roads as “scenic bikeways” will only bolster the State’s contention that users are recreating and the immunity argument will be even stronger.

This is just one front in the current legal battle around recreational immunity. As we shared earlier this month — counties, cities, and other landowners around the state are closing trails due to fears around a recent ruling by the Oregon Court of Appeals on a case from Newport on the Oregon Coast.

These legal questions have cycling and trail advocates very concerned. The Oregon Trails Coalition is planning a legislator lobby day in Salem February 12th and they’re hosting a webinar on recreational immunity today (1/31) at 12:00 noon.

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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Kyle Banerje
3 months ago

Agreed that the recreational distinction is a bogus one.

I’m leery of the concept that the state should be liable for fairly common threats or that private landowners (who probably don’t want the public on their property in first place) should be liable when people find a way to get hurt — this sounds like a great way to get everything closed off.

If anything, nonrecreational use needs to get the same treatment as recreational — not the other way around.

Champs
Champs
3 months ago

Recreational immunity (RI) isn’t absolute. If there is a trail behind your home, a tree to falling on someone is white, and a tripwire is black. The gray areas in between are difficult.

In my mind, the benefits outweigh the risks, but this does mean that some people are going to get hosed. Some of the unintended consequences are in the name of a greater good, but some of them stem from the, uh, creative tendencies of the Oregon court system.

What happens next? If ODOT is successful with cyclists, will the state claim RI for drivers in scenic areas? What about pedestrians returning from out-and-back trails on state highways? The scope of a final decision is as unpredictable as it is fascinating.

Steve C
Steve C
3 months ago
Reply to  Champs

The statute only applies to “a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.” So presumably people in cars, recreating or not, would not be affected.

Johnny Bye Carter
Johnny Bye Carter
3 months ago
Reply to  Steve C

So if I’m riding a quad and get hurt, the statute doesn’t apply simply because I have a motor? That’s some serious BS there.

Ken
Ken
3 months ago
Reply to  Steve C

So….Is a person or persons on an ‘E-bike’ excluded? New argument…..electric motor ( essentially ) no different than a TESLA ETC.
When riding in a group the ‘lead out person’ is always given the task of warning those in the group of ANY potential ‘hazards’ ahead….just as those in the ‘rear position’ have the task of making those up front aware of an approaching vehicle.
Safety is important. I understand this . This is a difficult situation to make ANY assignment of blame or negligence to ANY party specifically.

Kyle Banerje
3 months ago
Reply to  Champs

What happens next? If ODOT is successful with cyclists, will the state claim RI for drivers in scenic areas? What about pedestrians returning from out-and-back trails on state highways?

I don’t own property and am a trail user, so I really appreciate being able to move through other peoples’ land.

Having said that, if I did own anything, I’d work to get everyone banned from my property if I was responsible for what happened so I don’t begrudge them if they don’t want me around. Wild land is dangerous/unpredictable and people do nutty things — just go to some federal land and you’ll see what I mean. For example, there are a lot of people who set booby traps on land they don’t own — which occasionally hurts cyclists in PDX.

There is only a tiny fraction of what’s needed to make fixes most people would agree are needed/necessary — believing people can sue or legislate away reality is a fool’s errand.

alex
alex
3 months ago

The suggestion that some bicycle trips are less important because a person is recreating has always struck me as a sneaky, paternalistic attempt to marginalize cycling.”

Reminds me of twitter community discussion around “avid cyclists”. It’s funny, because I have worked in the industry, commuted, mountain biked, road biked, and have enjoyed every other type of biking I could, but for some reason the “utility” cyclists or whatever they call themselves sure do like to gate keep. I have said it 1000x, all forms of cycling support each other and we should be supportive of all different types.

SD
SD
3 months ago

Would the recreational use argument ever be used for people driving on these roads?

Dave
Dave
3 months ago
Reply to  SD

EXCELLENT question! This whole idea does not take into account the idea that every trip should be made inder the same basic assumption–that roads should be fit to use for any legal means of conveyance. And, the cycling-ignorant should realize that the distances and terrain in many US cities and burbs mean that dressing in “normal” clothing and riding a machine that does not look a little racy is actually impractical and an exercise in self-punishment.

Chris I
Chris I
3 months ago
Reply to  SD

Have any drivers sued ODOT because of a pothole?

SD
SD
3 months ago
Reply to  Chris I

I don’t know, but I wouldn’t assume that the case described here was as simple as a pot hole. It sounds like the contractor was negligent in managing their work site. I’ve seen a ton of this riding on highway 30. Completely unnecessary and dangerous conditions caused by a lack of standards or awareness that could easily be fixed. A famous case that comes to mind involved driving and a large ODOT settlement with Amanda Fritz and the driver who killed her husband when ODOT had not yet installed a barrier between interstate lanes.

Pete
Pete
3 months ago
Reply to  Chris I

Most states have systems where you can file a claim based on pothole damage, etc. – here’s Oregon’s: https://www.oregon.gov/das/Risk/Pages/Ovclms.aspx

Just don’t tell them you were driving somewhere to go for a bike ride.

Ryan
Ryan
3 months ago

So, if something similar to this caused a driver to crash and get injured while on a joyride, would this same thing apply? What if they were on the way to meet up with a running club for a trail run? Or would they say they’re not recreating yet, they were just traveling to the recreating area? If that’s the case, when I went bikepacking to Stub Stewart would they be immune from liability even though I have a specific recreational area I’m traveling to? How would that be different from someone driving to the same campground? Is the whole issue based on the fact that, in general, people cycle because they enjoy the act of cycling while [most] people driving only do it because it feels mandatory in our current transportation environment?

This entire thing seems kinda messed up.

Nathan
Nathan
3 months ago

Actually Jonathan Maus people that use their autos for “recreational” purposes can pay significantly higher insurance premium. Try filing an insurance claim if you wreck your jeep going 4×4 on a difficult OHV trail or wrap your WRX around a telephone poll while street racing (or even legitimate racing at the track).

Although i generally agree with your idea that there should not be two classes of riders depending on their intent, I also have trouble holding the city liable for the majority of cycling accidents. The only time i could fault the municipality would be in case of failing to maintain roads, signage, or even perhaps cases of failing to uphold the law (e.g. allow reckless drivers to act with impunity or Catch & Release type circumstances)

Common Sense
Common Sense
3 months ago

Several issues with this story. First, misuse of the term “bad faith”. But mainly, there is no larger perspective offered. It’s more of the same perspective Bike Portland has become known for unfortunately. Make demands, and if they aren’t met, get louder and more unreasonable.

So a cyclist riding fast (likely irresponsibly fast) in a small group event (yes, 3 can be an event), wrecks, get’s hurt, and now wants a million bucks from ODOT.

Are we to assume this is the way the system is supposed to work? Even if accidents happen, someone has to pay for that uneven pavement, right?(looks pretty even in the photo) So let’s sue ODOT. Or someone.

What if we were in Europe? Could we sue for this same thing? (likely not, if so, damages would be pennies on the dollar compared to the US) What if this happened in Brazil, or Spain, or Japan? Could we sue for injuries sustained in an activity that has an inherent level of risk? (likely not, so being able to sue here is an glaring example of general class privilege)

What if this happened 20 years ago? Could we have sued then? Doubtful. What if this happened 40 years ago, could we have sued then? Of course not.

But we don’t look at the broader picture. We want to blame someone, and we want money! Ironically, the vast majority of cyclists on these kind of rides are doing pretty good financially.

And no thought is given to what might happen if this guy and others won cases like this. Bikes could be banned from all but a few roads. Waivers would have to be signed before you could get a license to ride a bike.

Stop being a bunch of spoiled rich (at least relatively so) Americans.

qqq
qqq
3 months ago
Reply to  Common Sense

Why not use an example a lot more closely connected to this than someone riding in Europe or Brazil or Spain or Japan, or riding 20 or 40 years ago?

How about someone riding on exactly the same road, hitting exactly the same depression, going exactly the same speed (or 3x or 4x faster) except instead of being on a bicycle, he’s on a motorcycle?

And since the financial status of the rider seems to be important to you, make the motorcycle rider a billionaire on a $90K motorcycle.

Would he be able to sue? Yes.

And why he was riding or where he was going are irrelevant.

Kenzie
Kenzie
3 months ago
Reply to  Common Sense

The argument that you couldn’t sue for this in Europe isn’t a fair comparison. In most of Europe healthcare is nationalized and something like a broken femur isn’t going to send you into massive amounts of debt like it could for some here in the US.

SD
SD
3 months ago
Reply to  Common Sense

I understand the argument that the state cannot maintain a perfect road surface with no cracks or pot holes and should not be held liable for imperfections or things that could be considered normal wear and tear. I think what may be being missed here is that ODOT, PBOT and their contractors sometimes do very stupid and dangerous things on roads that are completely preventable. When they directly cause a hazard due to negligence, they should be held liable for the harm they cause. Unfortunately, this litigation may be required so that agencies will believe that considering safety and implementing reasonable standards is worth the trouble. The vehicle or intentions of the individual who is harmed should not affect their legal standing.

Bike Life
Bike Life
3 months ago
Reply to  Common Sense

“So a cyclist riding fast (likely irresponsibly fast) in a small group event (yes, 3 can be an event), wrecks, get’s hurt, and now wants a million bucks from ODOT.”

Sorry, irresponsibly fast? Are we just lining up to trash our fellow cyclists for the following? Recreating, riding with a group, wearing lycra (gasp), riding faster than the mysterious “you” who must set an appropriate speed for cyclists in their mind?

I don’t care what you wear, how fast you ride, who you ride with, whether you have an e-bike or a regular bike. I am happy you’re biking.

There are (expletive deleted) persons involved in every form of transportation that can cause issues, be dangerous, and infuriating. But those on bikes are very unlikely to kill other people, or themselves.

Deliberately negligent road repairs are a huge issue everywhere I ride. Luckily, I haven’t been seriously injured by one yet.

John V
John V
3 months ago
Reply to  Common Sense

This is mind bending. What is unreasonably fast for a bike on a scenic byway with a speed limit of 35mph? Are you on a group drive if you have your wife and kids in the car?

Are we to assume this is the way the system is supposed to work?

Yes, definitely, this is exactly how the system is supposed to work until relevant court cases make it so similar cases never go to trial because it’s obvious. The law is ridiculous and up for so much interpretation that the only solution to dispute is lawsuits.

If damages in Europe are different (where yes, disputes are also resolved by lawsuits), it’s because their healthcare system is probably better than ours and less outrageously expensive. So damages are actually less.

general class privilege

Whoever taught you those words should be sued for damages. This is not a class privilege.

What if this happened 2000 years ago? Could we have sued then? Doubtful. Luckily, things have improved since then. The legal system X years ago isn’t relevant.

We want to blame someone

Yes, generally we want to blame the negligent entity who had a work crew leave a hole in the ground in the bike lane. They’re unambiguously at fault for causing this injury.

And no thought is given to what might happen if this guy and others won cases like this.

I hope they do! They should win the case! The exact same type of case would be won by an automobile driver. The law that ODOT is trying to abuse to get out of paying is poorly written and an obvious mistake. It needs to be fixed so that our literal department of transportation can’t get away with being negligent on transportation. Bikes will not be banned.

Allan
Allan
3 months ago

I think that some amount of immunity for recreational activities is really important. However, if someone already told the property owner about dangerous conditions then the property owner should be required to do something to maintain their immunity.

Watts
Watts
3 months ago
Reply to  Allan

if someone already told the property owner about dangerous conditions then the property owner should be required to do something to maintain their immunity.

Like restrict access?

John V
John V
3 months ago
Reply to  Watts

Yeah, I agree, I don’t like that reasoning. A dirt path for example is by definition full of more hazards than a concrete path. But I’d rather use a dirt path in the forest and that’s the kind of thing RI is supposed to allow.

Jay Cee
Jay Cee
3 months ago

If someone is driving a date home and they crash their car on a giant hole in the ground that odot didn’t fix, does that also qualify for recreational immunity, or is does it only apply to us lowly people on bikes?

blumdrew
3 months ago

I feel like recreational immunity should apply to private land owners, but it feels like a stretch to offer that to ODOT. ODOT has billions of dollars to create, maintain, and otherwise manage public rights of way. Arguing that they are immune because of the reason someone is using the public road they maintain is stupid

qqq
qqq
3 months ago
Reply to  blumdrew

Yes, and if it does apply to ODOT (or any agency) that means the agency could decide it’s smart to focus maintenance efforts and budgets where it will protect them from liability. It would become stupid to spend money maintaining non-vehicle facilities, so they won’t, which will lead to even worse conditions/safety for anyone not driving.

Watts
Watts
3 months ago
Reply to  blumdrew

but it feels like a stretch to offer that to ODOT

If you don’t offer it to ODOT and other agencies, they’d likely restrict access to their land in exactly the way we don’t want.

John V
John V
3 months ago
Reply to  Watts

Could they even theoretically do that? Bikes are allowed to use the road by Oregon law (maybe others). How could ODOT restrict them from using the road?

I guess I just don’t know what the liabilities are for any regular road. RI applies to an asphalt path on private property that collects algae and gets slippery. Do roads follow some other standard? I’ve seem some algae covered asphalt in tiny roads in the forest, or leaf covered roads. Either could be dangerous to drivers. Is ODOT (or whoever maintains said road) not liable if someone slips on leaves on the road? If not, what does RI even do?

Watts
Watts
3 months ago
Reply to  John V

Not the road, but if they own any non-road property that folks use recreationally. I don’t know if they have much, but other agencies do.

The simple answer is to explicitly exclude public roads from the recreational use liability waiver.

Ted Buehler
3 months ago

Reposting from the previous “Recreational Immunity” story

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

You can find your Senator and Representative here

Even if 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.

Let them know you want the recreational immunity thing fixed. So #1 ODOT will maintain the roads, and #2 trail owners will keep trails open.

Ted Buehler

pixie
pixie
3 months ago

ORS 105.668 is not quite “the” recreational immunity statute at play here. It is part of a broader set of statutes under the heading of Public Use of Lands. It’s best to double check statutory research with official publications as unofficial publications of laws sometimes miss important context useful for understanding how to read and interpret statutes when republishing the law.

In this case, if you look at the official ORS, you’ll see this heading and table of contents description:

PUBLIC USE OF LANDS
 
105.668    Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way
 
105.672    Definitions for ORS 105.672 to 105.696
 
105.676    Public policy
 
105.682    Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products
 
105.688    Applicability of immunities from liability for owner of land; restrictions
 
105.692    Right to continued use of land following permitted use; presumption of dedication or other rights
 
105.696    Duty of care or liability not created; exercise of care required of person using land
 
105.699    Rules applicable to state lands
 
105.700    Prohibiting public access to private land; notice requirements; damages

It’s not uncommon for any one statute to be reliant on other statutes for further understanding, such as putting definitions applicable to several sections into one section, as in 105.672, or putting restrictions in a separate section, as in 105.688.

ORS 105.682 is often seen as the recreational immunity statute as it is the section that directly addresses the lack of liability for use of land by the public for recreational purposes: not liable in contract or tort”.

One needs to then read the other relevant statute sections to see how the whole broader issue is addressed by statutory law, such as the definitions and restrictions sections, among others.

Case law interpreting ORS 105.682 can be found under the Annotations tab, which contains notes of published court decisions. When state court decisions are officially “published,” they are from the Oregon Court of Appeals or the Oregon Supreme Court.

Here, you’ll see the Landis v Limbaugh case referenced in the original story. I encourage interested parties to read this case in particular, as it has a nice discussion of the legislative history behind why these statutes were passed in the first place.

The Kelly v Hochberg case is also of interest as it addressed the concept of travel as fitting within the definition of “recreational purpose.”

Overall, it’s an interesting statute passed with good intentions, yet still vague enough in several areas that it generates a good set of case law trying to grapple with how it should be applied. The recent stories on BikePortland illustrate its continuing relevance and perhaps, a need for some reform in the statutory language to potentially address imbalances in public policy that may have arisen after the many years of it being part of Oregon state law.

Plus, this statute also applies to entering lands for the purposes of gardening, woodcutting, or the harvest of special forest products! What is a special forest product? What does it mean to harvest? Ahh, the law is so fun!

Happy Reading!

Mike S
Mike S
3 months ago

By all means give this guy everything he wants, like the woman in Newport whose lawsuit is getting trails closed. People should not be held responsible for their own actions. If I’m hiking on a trail or biking in a road and something untoward happens, I should get money from someone!
Maybe we should all just stay at home? You know, when you go outside scary things might happen.

Aaron
3 months ago
Reply to  Mike S

If we lived in a country where going to the hospital after a bad accident was free instead of financially ruinous then I’d say your flippant attitude would be appropriate. Unfortunately the system that America has created is one where an accident like this can cost an insane amount of money not just immediately but also over their lifetime from injuries related to this accident. Having that system means that if someone is facing down a huge medical bill they are highly motivated to find someone else to pick up that bill, not out of some childish lack of responsibility but out of financial self preservation.

I honestly think that this entire situation would have been downgraded to a minor story without a lawsuit if the US just had fully socialized healthcare.

John V
John V
3 months ago
Reply to  Mike S

I don’t know why it’s so hard for people to grasp this. ODOT did maintenance on the road and literally left a hazard behind in the bike lane. If this was just a pothole that formed and remained due to lack of maintenance, or a patch of gravel that had made its way over, that’s one thing. You have to be on the lookout for incidental obstacles. But this is a case where ODOT left a trap. It was their mistake, their fault, this person should be entitled to damages just like a driver would be, whether they were enjoying their ride or not.

qqq
qqq
3 months ago
Reply to  Mike S

Why do you think people SHOULD be held responsible for their actions when it comes to someone getting hurt because they didn’t avoid a dangerous condition on a road, but the people who created the dangerous condition should NOT be held responsible?

Kevin
Kevin
3 months ago

I’m an occasional cyclist, rarely on a bike, and have some strong criticisms of cyclists I encounter. That said, I find this story to be absurd – this man was riding in a designated cycle lane on a public highway – using the road (presumably) as directed by the state. To me, it’s clear that the RI doctrine called upon is intended to protect landowners, including the state, from liability for stupid people doing stupid things and winning stupid prizes. What I see here is one more instance of neglect of the roads causing accident, injury or damage. I’ve had several bent rims and popped tires on my cars due to the neglected roads in the Portland area, had I hit the same spots on a bike it might have been catastrophic.
It’s clear that this doctrine was intended to address ‘misadventure’, not the use of public highways in accordance with the law.
As a motorist who has seen many cyclists abuse their status it would be easy to dismiss this story out of callousness, but this is a bs argument no matter how you cut it.

Mike Murray
Mike Murray
3 months ago

The issue of recreational immunity is interesting and I’m sorry that this rider was hurt but I have ridden past that location very many times over many years and in all seasons and I’ve never seen any road maintenance issue that I thought was a danger. Defiantly not something that was negligent enough that I should get compensation if I fell because of it.

qqq
qqq
3 months ago
Reply to  Mike Murray

It could be you didn’t ride there when the depression they hit wasn’t there, or it could be that it was an obvious depression that any decent bike rider should have been able to see and avoid easily–who knows in this particular case? (And I know you’re just recounting your own experience in that location.)

But your comment is a good argument for why people SHOULD be able to seek compensation. In other cases like this that I’ve heard about, some are clearly not legitimate claims, but in the ones that are, it’s often the case that the victim says something exactly like what you just said–they’ve been somewhere or done something a million times before, with no issues. But this one time, someone had left a manhole cover off in the dark, or something else totally unexpected and hard to see.

The injuries don’t happen because the person was doing something that seemed dangerous, because then they’re on guard. They happen when they’re doing something they’ve done countless times before, then get caught by something that they reasonably didn’t expect.

So it’s important to allow people to sue, so the legitimate claims get addressed.

John V
John V
3 months ago

One question I have in this discussion: since this is the “Scenic Bikeway” but there isn’t actually any bike lane, what part of the road are we even talking about? I see the photo, which does look pretty smooth, but I guess I wonder if they’re talking about riding in the shoulder (at which point I’m curious how much of the shoulder is expected to be rideable, because that certainly would have some implications).

Also, is the supposed depression the thing that is shown in the picture? I don’t see any depression, just some road tar sealing up the road where some work was done. Did ODOT come back and fix the thing, or is the “depression” what we’re looking at in the photo.

It’s annoying, because I definitely don’t think ODOT should be immune because of recreational immunity here, but if what’s shown in the picture is the obstacle, I think the plaintiff should simply lose on the merits of the case. On the other hand, the plaintiff claims other riders have crashed at this site, so if true, that’s evidence that it must be worse than it looks.

John V
John V
3 months ago

I didn’t understand, it says it’s smoothed over in the image caption but I didn’t know if that meant it was before or after the crash. But yeah, my understanding was there was a serious hole left behind, I wasn’t sure if the picture was supposed to show that hole.

It matters how they fell because if they just crashed, riding on the road, and there just happened to be some recently repaired pavement that couldn’t feasibly have caused the crash, I don’t think the plaintiff should win the case. But I was trying to be careful to emphasize that I don’t think they should lose the case on recreational immunity grounds.

Regardless, I agree recreational immunity shouldn’t apply here. That’s what I meant by “because I definitely don’t think ODOT should be immune because of recreational immunity here”. Whatever caused the crash, that’s what should be argued, not recreational immunity.

Kyle Banerje
3 months ago

It’s absurd.

However, it’s equally absurd that liability should be there had there been no recreational dimension.

There are a wide variety of hazards much worse than that all over, some in heavily used places that can be there for years. In any case, hazards can appear in the blink of an eye, and equipment can fail.

That’s not something that could happen, it’s something that frequently happens — it’s an assumed risk of being there. Anyone who ignores that will find trouble.

Reporting is easy, but actually getting things fixed requires coordinating resources and people who actually do it. If people think awarding a lifetime’s worth of earning is an appropriate response every time someone gets into trouble in such a situation, the logical thing to do is close all areas where this level of service can’t be provided — which is probably most places. And frankly to close off all private land.

On thing I’ve always liked about backcountry areas and open ocean (aside from the beauty and need to be in balance with environment) is that no one who goes there believes others are responsible for their choice to be out there and their safety. And they conduct themselves very differently.

Becky Lathrop
Becky Lathrop
3 months ago

Well I’m thinking somebody out open their eyes and pay attention to where they’re going and if ODOT can’t afford to fix the roads why don’t they start God damn making the bicycles have licenses tags and insurance just like people in cars they would make a killing in Portland

qqq
qqq
3 months ago

It only seems fair that anyone getting pulled over for a traffic violation on an ODOT road while riding a bike should be able to avoid a ticket if they can claim they were “engaged in recreational bicycle riding” at the time.

JeffS
JeffS
3 months ago

Sounds like this could go the way of the coast trails.