466 P.3d 10
Or.2020Background
- Plaintiff Benjamin McCormick dove from a gabion pier at Lake Billy Chinook (a reservoir adjacent to Cove Palisades State Park), struck a submerged boulder, and was seriously injured.
- The State had developed/maintained three day‑use areas (parking, boat ramps, piers, swimming areas) that plaintiff used; plaintiff (or his family) paid a $5 fee to park.
- McCormick sued the State for negligence; the State moved for summary judgment claiming recreational immunity under ORS 105.682 (owner not liable when it "directly or indirectly permits" recreational use).
- The trial court granted summary judgment for the State; the Oregon Court of Appeals reversed, relying on Ortega v. Martin (holding an owner must have authority to decide whether to allow recreational use to "permit" it).
- The Oregon Supreme Court granted review and reversed the Court of Appeals, holding that an owner can "permit" recreational use even if it cannot completely prohibit the use (e.g., by making access and facilities available); it remanded the fee issue for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an owner "directly or indirectly permits" recreational use when the public already has a legal right to use the land/water | McCormick: No — if the public already has a legal right (public trust or public use), the owner cannot be said to "permit" the use | State: Yes — "permit" includes a range of conduct (tolerating use, making use possible by providing access/facilities) even if owner cannot prohibit use | Held: "Permit" can include making use possible or tolerating it; owner need not have authority to prohibit the use to qualify for immunity |
| Whether recreational immunity covers publicly owned lands and waters (including navigable waters) | McCormick: Immunity should not apply where the public already has usage rights | State: Legislature intended immunity broadly ("all land" and "all bodies of water") to encourage making lands available for recreation | Held: Immunity can apply to public lands/waters; statutory text, context, and legislative history show broad coverage |
| Whether the $5 charge defeats recreational immunity (parking fee vs use fee) | McCormick: The $5 may be a use/entrance fee that precludes immunity; discovery needed | State: The $5 is a parking fee exempted by statute (fees $15 or less do not forfeit immunity) | Held: Court did not resolve fee question; remanded to Court of Appeals for further proceedings and discovery on whether the charge precludes immunity |
| Whether Ortega v. Martin controls (owner must have authority to permit) | McCormick: Ortega supports requiring authority to permit | State: Ortega was wrongly applied; ownership/authority not required to "permit" under statute | Held: Court rejected Ortega's narrow rule and reversed the Court of Appeals decision applying it |
Key Cases Cited
- Kramer v. City of Lake Oswego, 365 Or. 422 (Or. 2019) (public trust/public use rights are not absolute; state may regulate)
- Ortega v. Martin, 293 Or. App. 180 (Or. App. 2018) (Court of Appeals held owner must have authority to decide whether to allow recreational use)
- Johnson v. Gibson, 358 Or. 624 (Or. 2016) (construction of "owner" under recreational immunity statutes)
- PPL Montana, LLC v. Montana, 565 U.S. 576 (U.S. 2012) (statehood transfer of title to lands under navigable waters)
- Corvallis Sand & Gravel v. Land Board, 250 Or. 319 (Or. 1968) (state holds title to lands under navigable waters in trust)
- Thornton v. Hay, 254 Or. 584 (Or. 1969) (public right to use beach/dry sand areas under doctrine of custom)
- Luscher v. Reynolds, 153 Or. 625 (Or. 1936) (recognition of public use rights in waters that are "navigable in a qualified or limited sense")
- Guilliams v. Beaver Lake Club, 90 Or. 13 (Or. 1918) (public's paramount right to use waters includes recreation)
- Anthony v. Veatch, 189 Or. 462 (Or. 1950) (state in trust capacity may regulate or prohibit fishing/use)