243 P.3d 62
Or.2010Background
- Poker Run at Iron Horse Rodeo on Cedar Flat Road in Josephine County; road sometimes BLM and sometimes county-owned; BLM maintains but may close roads and designates as private government road.
- BLM opened Cedar Flat Road for recreational, administrative, and commercial access under TMP; TMP classifies road as private government road and subject to agency discretion.
- Plaintiff injured while riding motorcycle on BLM road during the Poker Run; defendant attorney represented plaintiff but sued county and others mistakenly
- Underlying action involved legal malpractice for failing to sue BLM timely; trial court granted summary judgment that BLM immunity would bar a federal tort claim
- Court of Appeals affirmed; Oregon Supreme Court granted review to determine scope of ORS 105.682 recreational immunity as applied to BLM road
- Court analyzes whether riding for travel within a recreational event can be a recreational purpose under ORS 105.672(5) and whether Cedar Flat Road is a public road or BLM road
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM would have immunity under ORS 105.682 for the Poker Run. | Kelly argues motorcycle riding is travel, not recreational. | Hochberg contends Poker Run is recreational; BLM immunity applies. | Yes; BLM would have immunity. |
| Whether riding a motorcycle on a road can be a recreational purpose under ORS 105.672(5). | Liberty excludes dual-purpose travel from recreational purposes. | Poker Run is recreational; travel can be part of recreation. | Recreational immunity covers the activity. |
| Whether Cedar Flat Road is a public road or a BLM private government road for immunity purposes. | If public road, immunity would be broader. | BLM can restrict use; road is not a public road. | Cedar Flat Road is not a public road; BLM road subject to immunity. |
Key Cases Cited
- Liberty v. State Dept. of Transportation, 342 Or. 11 (2006) (defined dual-purposive travel and ejusdem generis context in recreational immunity)
- Coleman v. Oregon Parks & Recreation Dept., 221 Or.App. 484 (2008) (applied immunity to mountain biking; discussed travel on roads)
- O'Neal v. United States, 814 F.2d 1285 (9th Cir. 1987) (FTCA and Oregon immunity applied to BLM road injury)
- Seyler v. United States, 832 F.2d 120 (9th Cir. 1987) ( Idaho recreational immunity context; public thoroughfare distinction)
- Otteson v. United States, 622 F.2d 516 (10th Cir. 1980) (distinguishing Forest Service road from public thoroughfare)