Both parties have appealed. The state contends that the trial court erred in (1) concluding that it was not entitled to recreational immunity under ORS 105.682 and (2) denying its motion for a directed verdict on the ground of discretionary immunity, ORS 30.265(6)(c). Plaintiff asserts that the application of the statutоry $1.5 million cap applicable to damages awards against the state, ORS 30.271(2)(a), violates plaintiff's state constitutional rights to a remedy under Article I, section 10, of the Oregon Constitution and to a jury trial under Article I, section 17, of the Oregon Constitution. We conclude that (1) the trial court correctly ruled that the state was not entitled to statutory recreational immunity; (2) the trial court did not err when it denied the state's motion for a directed verdict on the grounds of discretionary immunity; and (3) under Horton v. OHSU ,
I. BACKGROUND
Plaintiff, who was 14 years оld at the time, was surfing at Pacific City near Cape Kiwanda when he was struck by a dory boat operated by defendant Martin. Martin was returning to shore and did not see plaintiff in the waves. The boat's propeller severed plaintiff's left arm. Although another surfer retrieved plaintiff's arm, and the arm was surgically reattached, plaintiff has suffered permanent physical impairment and post-traumatic stress syndrome as a result of the incident.
At the time of the accident, state officials had long been aware that surfers and dory boats were at risk of
Plaintiff brought this action for negligence against Martin and the state, seeking to recover for his losses. He alleged that the state "was negligent in failing to provide adequate warnings of the danger of collisions between dory boats and other persons at or near Cape Kiwanda."
Before trial, the state twice moved for summary judgment on the ground that the
"(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest ofspecial forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products.
"(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, woodcutting or the harvest of special forest products."
ORS 105.682 (2007).
In response, plaintiff argued, among other things, that the ocean and ocean shore were public trust lands, and that the state held its interest in the land in trust for the public. As a result, the state lacked authority to prohibit the recreational use of the ocean and ocean shore. Plaintiff reasoned that, because the state lacked authority to prohibit the public's use of the ocean and ocean shore for recreational purposes, it could not be said to have "permit[ted]" plaintiff to engage in the use of the ocean and ocean shore that led to his injury within the meaning of ORS 105.682(1).
The trial court agreed with plaintiff's interpretation of the statute. Noting that the state lacks authority to exclude the public from using the ocean shore and ocean for surfing and other recreational purposes, the court reasoned that plaintiff's "use was inherently not permissive and therefore recreational immunity does not apply in this case." The trial court, therefore, denied both of the state's motions for summary judgment asserting recreational immunity.
The jury rejected plaintiff's claim against Martin. However, it found in favor of plaintiff
The trial court determined that $294,935.09 of the award for economic damages was for past medical bills attributable to his parents' claim that "was included in this action as authorized by ORS 31.700(1)." Reducing that amount by 30 percent to account for plaintiff's negligence, the court concluded that "judgment will be entered for $206,454.56 on [plaintiff's] parents' claim for past medical bills." The court then reduced the remaining $3,610,795.68 of the jury's award by 30 percent, to determine that plaintiff would be entitled to $2,527,556.98, absent application of the $1.5 million damages cap contained in ORS 30.271 (2)(a). Rejecting plaintiff's argument that application of the
The state appeals, and plaintiff cross-appeals. The state assigns error to the trial court's denial of its multiple motions for summary judgment on the ground of recreational immunity and to the denial of its motion for a directed verdict on the ground of discretionary immunity. It contends that the recreational immunity statute, correctly construed, bars plaintiff from recovering damages against the state because plaintiff was engaged in a recreational activity at the time of his injury. Alternatively, it contends that the discretionary immunity statute bars plaintiff's recovery because, in the state's view, the evidence presented at trial compels the conclusion that the absence of a warning sign at the location of plaintiff's injury was the product of a discretionary policy decision. Plaintiff assigns error to the application of the $1.5 million statutory damages cap, reiterating his arguments that the application of the cap violates his rights under Article I, section 10, and Article I, section 17.
II. ANALYSIS
A. Recreational Immunity
1. Reviewability
Preliminarily, we must decide if the state's challenge to the trial court's rejection of its claim to recreational immunity is reviewable. Below, the state raised the issue of its entitlement to recreational immunity by way of two pre-trial summary judgment motions; on appeal, it raises the issue by assigning error to the trial court's denial of those two motions. But, "[i]n a case that has gone to trial, the denial of a summary judgment motion is not reviewable on appeal unless the motion rested on a 'purely legal' contention." Freeman v. Stuart ,
The state argues that its summary judgment motions rested on the type of "purely legal contention" that permits review under Freeman , at least insofar as the motions raised the issue of recreational immunity. That "legal contention," as framed by the state, "is whether recreational immunity applies only to land that the owner has authority to close to the public"-an issue which turns on the proper interpretation of the word "permit" in ORS 105.682. The state notes that, in Sweeney v. SMC Corp. ,
It is difficult to say that the facts are "immaterial" to the statutory construction question presented. The facts are material because-as was the case in Sweeney -they show that the question is, in actuality, presented and justiciable in this case. In Sweeney , the statutory construction question of whether the Oregon Lemon Law applies to sales of motor homes was presented and justiciable only because the facts demonstrated that the allegedly defective vehicle at issue was a motor home. Had the facts shown, for example, that the vehicle in question was a tractor-trailer or a passenger bus, the question of the law's applicability to motor homes would not have been justiciable in the case. However, beyond demonstrating the presence of a justiciable statutory construction question, the facts were not otherwise material because the resolution of what the statute meant did not depend on the facts. Likewise, in this case, the issue regarding the proper interpretation of ORS 105.682 is presented and justiciable, only because the facts demonstrate that plaintiff was injured while engaged in recreational activity
Under those circumstances, as we implicitly concluded in Sweeney , Freeman 's specification that the facts must be "immaterial" to allow review of a trial court's denial of a motion for summary judgment does not bar review. That is, where the motion rests on a question of statutory construction and the facts are material only insofar as they demonstrate that that statutory construction question is raised by the facts of the case and justiciable, we may review a trial court's denial of summary judgment when that denial turned on the court's resolution of the statutory construction question. Consideration of the material facts, insofar as the facts demonstrate the justiciability of an otherwise pure legal question, comports with our constitutional obligation to ensure that we have jurisdiction to resolve the question. See Hale v. State of Oregon ,
2. Whether ORS 105.682 applies to the owner of an interest in land who lacks authority to prohibit the public's recreational use of the land
We turn to the question of whether the recreational immunity statute, ORS 105.682, immunizes the state from liability arising out of the recreational use of land-such as the ocean and beaches-on which the state lacks the authority to prohibit recreational use by the public. That question is one of statutory construction, and we review the trial court's resolution of it for legal error. State v. Lobo ,
Although several criteria must be present for statutory recreational immunity to apply, the parties' dispute focuses on one of them. The immunity provided by ORS 105.682 applies оnly to an owner of land (defined for purposes of the statute to be "[t]he possessor of any interest in any land," ORS 105.672(4) ) who "directly or indirectly permits any person to use the land for recreational purposes." ORS 105.682(1) (emphasis added). At issue is whether a landowner can be said to "permit" the recreational use of land where the owner has no legal authority to prohibit the recreational use of the land at issue. That is the question because, as the state acknowledges, its interest in the ocean and beaches is not one that permits it to preclude the recreational
Considering the plain meaning of the word "permit," both proposed interpretations are plausible. Many of the common definitions of the word contemplate that to "permit" something necessarily requires the authority to decide whether or not to allow it. Webster's tells us that "permit" can mean "to consent to expressly or formally"; to "grant leave for or the privilege of"; "to give (a person) leave"; or to "authorize." Webster's Third New Int'l Dictionary 1683 (unabridged ed. 2002). However, not all definitions of the word "permit" contemplate the existence of authority to allow or disallow. As the state emphasizes, "permit" can mean simply to "make possible." That definition, the state asserts, would encompass a "[land]owner who actively facilitates recreational use *** notwithstanding the lack of any right to prevent that use."
"The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes аnd by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products."
ORS 105.676. By its plain terms, that provision indicates that the legislative objective in adopting the recreational immunity statutes was to provide an incentive for landowners to "make their land available to the public" for recreational use. That suggests that the legislature was targeting landowners who have the authority to decide whether to allow recreational use of their land. Where, as here, the nature of thе owner's interest in land is one that already requires the landowner to allow recreational use, the statutory incentive serves no identifiable purpose. There is no need for the legislature to "encourage" owners of land to make their land available for recreational use where the owner is one that must make the land in question available for recreational use.
Our recent case law construing ORS 105.682 confirms that understanding of the legislature's likely intentions. In Landis v. Limbaugh ,
The state acknowledges that, historically, the recreational immunity statutes have contemplated a "quid pro quo" arrangement under which immunity applies to those landowners who decide to open their land to the public for recreational purposes when that land otherwise would not be available to the public to use recreationally. However, the state urges us to conclude that the legislature expanded the scope of the statute when, in 1995, the legislature made the statute applicable to public landowners in addition to private landowners. In the state's view, the statute "no lоnger requires that the owner trade a right of access in exchange for immunity; were it otherwise, it would be unfair to owners of public land who encourage recreational use but often cannot trade a right of access in exchange for immunity." (Emphasis in state's brief.) The state further argues that
The short answer to the state's argument is that it conflicts both with the legislature's express articulation in ORS 105.682 of the legislative policy behind the recreational immunity statutes and with our decision in Landis . We note, in particular, that, in Landis , we reviewed the legislative history of the recreational immunity statute, including the history of the 1995 amendments, and concluded following that review that "the drafters enacted a quid pro quo policy." Landis ,
The longer answer is that we have again reviewed the legislative history of the 1995 and 2007 amendments. Nothing in the legislative history supports the view that the legislature intended to relax the historical "quid pro quo" at the heart of the recreational immunity statute when it made the statute applicable to owners of public lands and to people who received payments from public bodies to open their lands. The 1995 amеndments were the product of House Bill (HB) 2296 (1995). Representative Kevin Mannix, in introducing the bill, stated that the goal of the bill was to encourage private landowners and those who are using public lands under special lease or permit arrangements to make lands available to the public for recreational uses by limiting liability. Tape Recording, House Natural Resources Committee, Subcommittee on Agriculture and Forestry, HB 2296, Jan. 30, 1995, Tape 4, Side A (statement of Rep Kevin Mannix). Additional discussions throughout the legislative history are consistent with Representative Mannix's initial statements. Those discussions indicate that the legislature's intention in making recreational immunity applicable to owners of interests in public lands was to make the immunity available to those owners who had the authority to decide whether to allow recreational use on the land, and also to clarify that the immunity applied to private companies that had leaseholds on government owned
Thus, as we explained in Landis , to be entitled to recreationаl immunity, an owner of an interest in land must have made a volitional decision to open the land to the public for recreational use. That means, necessarily, that, to be entitled to recreational immunity, an owner must have the authority to make a volitional decision whether or not to allow recreational use on the land in question. Because the state has not disputed-at least in any timely way-that it lacks the authority to make that sort of volitional decision to allow or disallow the recreational use of the ocean and
B. Discretionary Immunity
The state next assigns error to the trial court's denial of a directed verdict on its affirmative defense of discretionary immunity under ORS 30.265(6)(c). The state contends that the trial court should have determined, as a matter of law, that its alleged negligence with respect to failing to warn of the risks of collisions between dory boats and other users of the ocean and beach near Cape Kiwanda was the product of a policy decision of the type protected by ORS 30.265(6)(c). Because discretionary immunity is an affirmative defense on which the state bore the burden of proof at trial, to be entitled to a directed vеrdict on discretionary immunity grounds, the evidence must be such that all reasonable factfinders would have to find in the state's favor on that defense. See, e.g. , Robbins v. City of Medford ,
C. Damages Cap
The final issue before us is whether the trial court's application of the damages cap under ORS 30.271 to limit plaintiff's recovery violated his rights under the remedies clause of Article I, section 10,
Regarding plaintiff's argument under Article I, section 17, Horton holds that Article I, section 17, is a procedural right to receive a jury trial in civil cases where such right existed at common law, not a guarantee to receive the amount awarded by a jury. Horton ,
Regarding plaintiff's argument under Article I, section 10, Horton holds that the damages cap contained in ORS 30.271 may be applied to limit the damages recoverable
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed on appeal and cross-appeal.
Notes
Plaintiff initially alleged that the state was negligent in three additional respects. Those specifications were dismissed on summary judgment and are not at issue in this appeal.
At the time this case was filed, ORS 31.700 provided:
"(1) When the guardian ad litem of a child maintains a cause of action for recovery of damages to the child caused by a wrongful act, the parent, parents, or conservator of the estate of the child may file a consent accompanying the complaint of the guardian ad litem to include in the cause of action the damages as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate for the doctor, hospital and medical expenses caused by the injury.
"(2) If the consent is filed as provided in subsection (1) of this section and the court allows the filing, no court shall entertain a cause of action by the parent, parents or conservator for doctor, hospital or medical expenses caused by the injury."
ORS 31.700 (2009). The statute has been amended in minor ways since that time. All references to ORS 31.700 in this opinion are to the 2009 version of the statute.
The legislature amended the stаtute in 2009 to specify that gardening is one of the activities to which the immunity applies. Or. Laws 2009, ch. 532, § 4. Unless otherwise indicated, all references to ORS 105.682 in this opinion are to the 2007 version of the statute.
For example, John Brenneman of Idaho Power advocated for broadening the bill by taking out "fee title" ownership and replacing it with "any" ownership to make the bill applicable to all types of land. He stated that his concern was that Idaho Power administers BLM land on the Snake River and, as a matter of fairness, the bill should cover this BLM land, despite the fact that Idaho Power does not own the land in fee title. He was questioned about what type of control/ ownership Idаho Power had over the land. Brenneman clarified that Idaho Power does not lease the land but works with the federal government in regulating the land and has jurisdiction over recreational aspects of the land. Tape Recording, House Natural Resources Committee, Subcommittee on Agriculture and Forestry, HB 2296, Jan. 30, 1995, Tape 5, Side A (statement of John Brenneman).
Ken Evans of Oregon Anglers also supported the bill and the expansion to cover all types of lands, regardless of ownership structure. Alan Willis of the Port of Portland stated that he wanted ports and similar public lands to get the same treatment as private owners under the bill. He requested that language excluding lаnds owned by the state or public subdivisions of the state be removed from the statute. Willis argued that removing that language would allow ports to be covered with immunity. Tape Recording, House Natural Resources Committee, Subcommittee on Agriculture and Forestry, HB 2296, Jan. 30, 1995, Tape 4, Side B (statements of Ken Evans and Alan Willis).
At the Senate Water and Land Use Committee meeting, Ken Armstrong of Oregon Public Ports Association emphasized that the Port of Portland owns substantial waterfront property that is of interest to the public recreationally and, without the legislation covering ports, it could cause ports to run into serious problems. John Brenneman again discussed the importance of including public lands, and those persons who have control over public lands, in the bill. He stated that inclusion would encourage those who are in charge of managing public lands to allow the public on it. Tape Recording, Senate Water and Land Use Committee, HB 2296, Apr. 26, 1995, Tape 127, Side B (statements of Ken Armstrong and John Brenneman).
In its initial brief, the state argues that it can regulate the use of the ocean and its beaches, even if it does not have the authority to preclude all recreational use. In its memorandum of additional authorities responding to Landis , the state appears to take the position that it has the authority to prohibit the recreational use of the ocean and beaches. To the extent that the state is making that argument, it appears to be a fundamental shift in the position that it has taken throughout most of this case. But, even if that argument is properly before us, it does not assist the state. If, as the state posits, it has the authority to decide whether or not to allow the recreational use of the ocean and its beaches, the state presented no evidence that it, in fact, made the type of volitional decision to allow the recreational use of the ocean and its beaches that Landis holds is a prerequisite for entitlement to recreational immunity. Thus, under Landis , the state still would not have established its entitlement to recreational immunity.
We note that the state did not ask that its affirmative defense of discretionary immunity be submitted to the jury once the trial court denied its motion for a directed verdict. Plaintiff does not make anything of it on appeal, so we save for another day the question of how a defendant's failure to request that an affirmative defense be submitted to the jury might bear on the availability of appellate review of a trial court's decision to deny a defendant's motion for a directed verdict on an affirmative defense. It is unclear why the state did not ask that the jury be instructed on the defense. The trial court's denial of the state's motion fоr a directed verdict, as we understand it, simply meant that the court determined that there were factual issues for the jury with respect to that defense. Had the state submitted the defense to the jury, perhaps it would have found in its favor.
Article I, section 10, provides that "[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Article I, section 17, provides that "[i]n all civil cases the right of Trial by Jury shall remain inviolate."
Plaintiff also appears to argue that the trial court applied the damages cap in an incorrect manner. To the extent that plaintiff is making that argument, we reject it as unpreserved.