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State of Oregon Loses Statutory Recreational Immunity Defense Under New Court of Appeals Decisions



ORS 105.682 provides immunity from contract or tort claims to landowners who permit the public the use of their lands for recreational purposes. Under that statutory provision, a recreational user or the estate of such a user cannot sue the landowner if that user suffers personal injury, death, or property damage from the use of the land. On August 1, 2018, the Oregon Court of Appeals released decisions in two cases in which the State of Oregon used ORS 105.682 as a defense to negligence claims by injured users of State-owned property. In the first case, a 14-year-old boy had been surfing at Pacific City near Cape Kiwanda when he collided with a dory boat, which severed his arm. In the second case, a man was severely injured by a submerged boulder when he dove into Lake Billy Chinook at Cove Palisades State Park. In both cases, the critical question was whether the State had the authority to "make a volitional decision whether or not to allow recreational use on the land in question." The court found in both cases that the State had not effectively demonstrated that it had that authority. The court used the standard text-in-context/legislative history interpretational aids to interpret ORS 105.682 as providing a legislative quid pro quo to landowners to encourage them to open their lands to the public for recreational purposes in exchange for immunity. If the owner of land does not have that authority, recreational immunity does not apply. 


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