427 P.3d 199
Or. Ct. App.2018Background
- Plaintiff dove into Lake Billy Chinook at Cove Palisades State Park, struck a submerged boulder, and was severely injured.
- Plaintiff sued the State alleging negligence in multiple respects that contributed to his injuries.
- The State moved for summary judgment asserting recreational immunity under ORS 105.682 because plaintiff was engaged in a recreational activity.
- Plaintiff argued ORS 105.682 did not apply because the State holds Lake Billy Chinook in public trust and lacks authority to prohibit recreational use, so it cannot "permit" use within the statute's meaning.
- The trial court granted summary judgment for the State; the court of appeals reversed based on its decision in Ortega v. Martin, which the trial court had not had available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 105.682 applies because the State "permits" recreational use of Lake Billy Chinook | "Permit" requires authority to decide (including authority to prohibit) recreational use; State lacks that authority for the lake | "Permit" has a broader meaning: facilitating, enabling, or declining to restrict recreation suffices | Court held "permit" means the owner must have authority to make a volitional decision to allow or disallow recreational use; State did not show such authority here, so immunity not established as a matter of law |
| Whether the State established entitlement to recreational immunity on summary judgment | State argued facilitation/regulation of recreation sufficed to show entitlement | Plaintiff argued absence of authority to bar use defeats immunity | Court reversed summary judgment because State failed to establish it "permitted" use under Ortega standard |
| Whether legislative purpose supports broad or narrow reading of "permit" | Plaintiff: quid pro quo requires landowner decision-making authority to justify immunity | State: statute should protect owners who enable or do not restrict recreation even absent full prohibition power | Court relied on legislative text, context, and history (quid pro quo) supporting requirement of decision-making authority to permit use |
| Whether the court should consider State's belated claim that it can prohibit recreational use | Plaintiff objected to new contention raised late | State urged it could prohibit use in service of public trust purposes | Court declined to consider the belated argument; decision rests on arguments presented below |
Key Cases Cited
- Ortega v. Martin, 293 Or. App. 180 (Or. App. 2018) (interpreting "permit" in ORS 105.682 to require authority to decide whether to allow recreational use)
- Landis v. Limbaugh, 282 Or. App. 284 (Or. App. 2016) (addressing related questions about State authority over public trust lands)