Insurance Defense Team

Eric Kekel, Leader
Laura Althouse
Randy Arthur
John Barhoum
Anne Foster
Damon Henrie
Tamsen Leachman
Irene Scruggs
Sam Smith
Don Templeton
Tom Tongue

JAN 10

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No Recreational Immunity if Fee Charged for Any Use of Property

Oregon’s recreational immunity statute shields property owners from liability for personal injury claims arising from permitted recreational use of the land so long as the owner “makes no charge for permission to use the land.”  In Coleman v. Oregon Parks & Recreation Department, 347 Or. 94, 217 P.3d 651 (2009), a divided Oregon Supreme Court ruled that the state was not immune from a personal injury lawsuit arising from a biking accident in an Oregon park because the bicyclist paid a fee to camp in a separate area of the park.  At trial, the state argued that park users did not need to pay a fee to use the trails where plaintiff was injured.  Instead, the park only charged fees to camp and use a gazebo facility.  The trial court agreed and dismissed the case.  The Oregon Court of Appeals affirmed.  On appeal to the state high court, the plaintiff argued that any charge imposed for a recreational purpose bars immunity under the statute.  The state contended that a prohibited charge only meant a charge for using the specific property where the injury occurred.  Because the park did not charge for use of the trail where plaintiff was injured, the state reasoned, it should be immune from liability.  The Oregon Supreme Court disagreed.  Here are some key points from the decision:

• Oregon’s recreational immunity statute is strictly construed – any charge for  “permission to use” property may forfeit immunity.
   
• The ruling turned on the lack of a factual record about how the park was divided into separate fee and no-fee areas with distinct boundaries.
   
• The majority opinion could lead to inconsistent results:  For example, if two people were injured in a no-fee area of a park but only one of them paid to camp in a separate area of the property, it is possible that only the camper would be able to sue.
   
• Landowners who charge fees to use part of their property should post their land to show which areas require a fee and what uses are permitted. 
   
• Attorneys addressing Oregon’s recreational immunity statute should ensure that the trial record includes details about fees charged and recreational uses permitted.