STEWART EX REL. HILL v. Kralman
248 P.3d 6
Or. Ct. App.2011Background
- Plaintiff Randall J. Stewart/Stewart’s estate was injured when snowmobiling on defendant Norman Kralman’s land; the injury occurred after turning from a snowmobile trail onto a driveway.
- A cable stretched across the driveway to block vehicle access from Highway 204 caused the collision and severe injuries.
- Plaintiff alleged negligent placement of the cable, inadequate warning, and failure to use a less lethal blocking method.
- Defendant and third-party defendants argued recreational land immunity under ORS 105.682 to 105.696 extended to injuries arising from use of land opened for recreation, regardless of where on the land the injury occurred.
- If the driveway was closed to the public for recreation, plaintiff argued he was not immune and could pursue negligence; if open, immunity would bar the claim.
- Trial court granted summary judgment for immunity under ORS 105.682(1) or, alternatively, held plaintiff as a trespasser owed only a limited duty; on appeal, the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 105.682(1) immunizes the landowner for injuries arising from recreational use when the injury occurs on land not open to the public | Stewart contends no immunity if injury arose on closed land | Kralman/Associations argue immunity applies if any part used recreationally opened land exists | Immunity applies if the driveway was open; if closed, trespasser status applies |
| If the driveway is closed to the public, does Stewart’s status as a trespasser foreclose his claim | Trespass status not properly raised; seeks broader negligence duty | Trespass status would bar claims unless willful/wanton conduct | Stewart’s trespass status would bar liability unless willful or wanton conduct alleged |
| Did the trial court err by addressing trespass arguments in reply without proper preservation | Trespass argument not raised in the initial motions; not preserved | Trespass issue raised in reply and supported by record; proper procedural posture | No reversible error; trial court properly considered physician implications and allowed response |
| Does ORS 105.686 or related provisions override common-law duties to trespassers in recreational contexts | Statutes modify duty with recreational lands immunity | Statutes do not create new duties for trespassers and preserve willful/wanton standard | Common-law trespass duties apply; immunity otherwise would apply only when land open for recreation |
| Should appellate court resolve whether the driveway was open to the public for recreational use | Open/closed status necessary to determine immunity | Status must be resolved on summary judgment to determine immunity | Driveway is either open or closed; resolution determines immunity or trespass-based duty |
Key Cases Cited
- Outdoor Media Dimensions Inc. v. State of Oregon, 150 Or.App. 106 (1997) (summary judgment evidence development; raised issues in replies)
- Outdoor Media Dimensions Inc. v. State of Oregon, 945 P.2d 614 (1997) (aff'd, 331 Or. 634, 20 P.3d 180 (2001))
- State v. Acremant, 338 Or. 302 (2005) (remedies clause considerations)
- Walsh v. C K Market, Inc., 171 Or.App. 536 (2000) (premises liability and duty distinctions for invitees/licensees/trespassers)
- Hansen v. Cohen, 203 Or. 157 (1955) (no duty to bare licensee or trespasser beyond preventing willful or wanton injury)
- Brady/Flynn v. Kroger, 347 Or. 331 (2009) (trespasser duties and landscape liability principles)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (1991) (preservation and scope of issues in summary judgment context)