783 F.3d 1159
9th Cir.2015Background
- Emily Johnson was injured when she stepped into an unmarked hole dug to access a broken sprinkler at Portland’s Tom McCall Waterfront Park and suffered permanent disabling injuries.
- The hole had been dug by Scott Gibson, a City Parks technician; Gibson placed a single cone and left, expecting to return with a part but did not.
- Robert Stillson was Gibson’s supervisor; he provided no formal training on hazard-marking and testified cones, plywood, or barricades were available.
- Johnson sued Gibson and Stillson in federal court (diversity) for negligence.
- Defendants moved for summary judgment, claiming immunity under Oregon’s Public Use of Lands Act (ORS 105.672–105.700) because they qualify as “owners” (defined to include persons in possession), and arguing application of the Act does not violate Oregon’s remedy clause.
- The district court granted summary judgment for defendants; the Ninth Circuit panel found controlling state-law precedent unclear and certified two questions to the Oregon Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether individual city maintenance employees who repair/maintain public recreational improvements are "owners" under the Public Use of Lands Act | Johnson: the City, not individual employees, is the owner; Denton and Brewer are distinguishable (entity defendants, greater control); statute’s plain meaning does not encompass individual employees | Defs: persons responsible for maintenance/operation fall within statutory definition of “owner” (including persons in possession); Denton and Brewer control | Certified to Oregon Supreme Court (no Ninth Circuit holding on substance) |
| If employees are "owners," whether applying the Act to them violates Oregon Constitution Art. I, §10 (remedy clause) | Johnson: Brewer was abrogated by Smothers; under Smothers/Smothers framework, abolition of a common-law remedy requires an adequate substitute, and Brewer’s detriment/benefit test is no longer controlling | Defs: Brewer permits legislatively-created immunity as a permissible detriment/benefit tradeoff; immunity application does not violate the remedy clause | Certified to Oregon Supreme Court (panel found no controlling Oregon precedent and requested guidance) |
Key Cases Cited
- Denton v. L.W. Vail Co., 23 Or. App. 28, 541 P.2d 511 (Or. Ct. App. 1975) (contractors found "persons in possession" and entitled to immunity under the Public Use of Lands Act)
- Brewer v. Dep’t of Fish & Wildlife, 167 Or. App. 173, 2 P.3d 418 (Or. Ct. App. 2000) (court held entities that maintain/operate improvements are "owners" and upheld Act against remedy-clause challenge under a detriment/benefit analysis)
- Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (Or. 2001) (recast remedy-clause analysis: first identify protected common-law right; if abolished, determine whether legislature provided an adequate substitute)
- W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 811 P.2d 627 (Or. 1991) (procedural guidance on certifying questions to Oregon Supreme Court)
- Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (Or. 2013) (discusses Smothers framework and remedy-clause analysis)
- Schlesinger v. City of Portland, 200 Or. App. 593, 116 P.3d 239 (Or. Ct. App. 2005) (questioned Brewer’s continuing validity)
- Liberty v. State, Dep’t of Transp., 342 Or. 11, 148 P.3d 909 (Or. 2006) (relevant appellate treatment bearing on Act and immunity issues)
- Johnson v. Gibson, 918 F. Supp. 2d 1075 (D. Or. 2013) (district court opinion granting summary judgment to defendants on Public Use of Lands Act immunity and remedy-clause grounds)