385 P.3d 1139
Or. Ct. App.2016Background
- Plaintiff tripped on an upward‑pitched sidewalk in Washington County while jogging, fracturing her elbow and suing for negligent inspection/maintenance and failure to warn.
- Defendants: Washington County and Limbaugh (personal representative of the Herwick estate); Limbaugh later settled and is not on appeal.
- County moved for summary judgment arguing immunity under Oregon’s recreational use statutes (ORS 105.668–105.700), contending plaintiff’s jogging was recreational so immunity applied.
- County alternatively argued it did not own the abutting land (claiming only an easement from a 1992 deed) and thus lacked liability under the Beaverton City Code provision assigning sidewalk maintenance to abutting landowners.
- Trial court granted summary judgment for the county on statutory immunity; it did not rule on the deed ownership issue. Plaintiff appealed and the court of appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 105.682 recreational‑use immunity bars plaintiff’s negligence claim for injury on an ordinary public sidewalk | Immunity does not apply because the statute requires the landowner to have decided to "make land available" for recreational use; an ordinary public sidewalk was already generally available and not the subject of that volitional permission | Immunity applies whenever the injured person’s principal purpose on the land is recreational (here, jogging), regardless of whether the owner affirmatively "permitted" recreational use | Reversed: immunity requires the landowner’s volitional decision to make the land available for recreational (or listed) uses; ordinary public sidewalks already open to general use do not automatically trigger recreational immunity |
| Whether the county’s 1992 conveyance to it created only an easement (so the county is not an "owner" under the Beaverton City Code) | The deed conveyed fee title to the county, not a mere easement; therefore the county is an abutting owner potentially liable under the city code | The deed was titled a "dedication deed and temporary construction easement," so county only received an easement and is not an abutting owner under the code | Reversed: the deed unambiguously conveyed fee title (factors: conveyance to public body for public right‑of‑way, inclusive language, absence of the word "easement," no limiting language), so county owned the strip and could be liable under the city code |
| Whether the trial court correctly granted summary judgment on immunity at the summary judgment stage | Plaintiff argued the record showed no evidence the county exercised volition to permit recreational use and disputed ownership; thus summary judgment on immunity was improper | County argued it was entitled to judgment as a matter of law based on statutory immunity and alternatively on ownership | Trial court erred to grant summary judgment on immunity; record did not support application of recreational immunity to an ordinary public sidewalk |
| Whether the appellate court may affirm on an alternative ground (deed/ownership) not relied on below | Plaintiff argued deed conveyed fee simple; issue was fully litigated below so appellate resolution is appropriate | County urged affirmance on this alternative ground | Court exercised right‑for‑wrong‑reason doctrine and resolved the ownership question in plaintiff’s favor (fee conveyed), warranting reversal of summary judgment |
Key Cases Cited
- Stevens v. Bispham, 316 Or. 221 (summary judgment standards for appellate review)
- PGE v. Bureau of Labor & Indus., 317 Or. 606 (statutory‑construction framework)
- State v. Gaines, 346 Or. 160 (modification of statutory‑construction approach)
- Coleman v. Oregon Parks & Recreation Dept., 347 Or. 94 (application of recreational immunity to public landowner that permitted public use)
- RealVest Corp. v. Lane County, 196 Or. App. 109 (conveyance to public body for right‑of‑way may transfer fee title despite "right‑of‑way" language)
- Sundermier v. PERS, 269 Or. App. 586 (use of statutory policy statements as interpretive context)
- Seyler v. United States, 832 F.2d 120 (9th Cir.) (rejecting application of recreational use statute to ordinary public highways)