Citycounty Insurance Services Warns Members that State Appeals Court Killed Recreational Immunity, Recommends Waivers for Use of All City/County-owned Parks

November 2023, Citycounty Insurance Services: Oregon’s Higher Courts End Recreational Immunity for Improved Trails

On July 6, the Oregon Court of Appeals issued an opinion effectively ending recreational immunity for improved trails. Public and private landowners of improved trails are no longer protected from lawsuits. (Fields v. City of Newport).

Nicole Fields Falls While Walking With a Friend and their Dogs

In Fields v. Newport a woman was walking with her friend and their dogs on the beach. She walked away from the beach on an improved trail which was owned and maintained by the city of Newport. The woman came to a wooden footbridge that was wet. She slipped and fell, then filed a lawsuit against the City.
Ms. Fields’ suit alleged the City was negligent in maintaining the bridge and not putting up warning signs. Newport responded that it was immune from suit because Fields was using the Ocean to Bay Trail for a recreational purpose, walking with a friend and their dogs while they talked and socialized.

The Trial Court Applied Recreational Immunity, Protecting Newport

The trial court agreed with the City, ruling that recreational immunity protects landowners from a lawsuit when they open their property to the public for recreational purposes without a fee. Because of recreational immunity the trial court granted summary judgment, which ended the case early in favor of Newport .
The trial court determined “there are no genuine issues of material fact in dispute” and that under state law, the plaintiff was “using the trail for recreational purposes” by “walking her dog on a trail to the beach with a friend,” and thus the City was entitled to recreational immunity from any liability.
Plaintiff Fields appealed the trial court’s ruling, arguing that the trial court could not conclude that her “principal purpose” (as required under state law) in walking on the trail was recreational as long as she claimed that the subjective intent in her mind was something else.

The Oregon Court of Appeals Strikes Down Recreational Immunity

The Oregon Court of Appeals decided that there is a factual dispute between Plaintiff Fields and the City as to whether her use of the trail was recreational, or whether her primary purpose was instead for “accessing the beach.” In other words, the Court of Appeals held that the trial court needed to hold a jury trial to determine whether the plaintiff’s principal purpose on the trail was accessing the beach, or to recreate while using the trial with a friend and their dogs while they “socialized.”
Either way, recreational immunity no longer stops a case at the beginning (an “immunity” from suit), because any plaintiff can claim their “principal purpose” was not to recreate.

Local Governments Requested that the Oregon Supreme Court Restore Recreational Immunity – But the Court Refused to Hear the Case

The City of Newport asked the Oregon Supreme Court to overrule the Court of Appeals and restore recreational immunity. Other members of the local government community in Oregon also asked the Oregon Supreme Court to review the Fields case and reverse the Court of Appeals. The City of Medford, the League of Oregon Cities, the Association of Oregon Counties, the Special Districts Association of Oregon, and the Oregon Recreation and Park Association all joined Newport in asking the Oregon Supreme Court to reverse the Court of Appeals:

“A decision from the Oregon Supreme Court is necessary here. The Court of Appeals created an exception that swallows the rule by finding a question of fact exists on whether socializing with a friend, walking dogs, and enjoying a scenic trail to access the beach is recreational or not.”
League of Oregon Cities

The City asked the Supreme Court to reverse the Court of Appeals because of the damage the Court of Appeals opinion will have on the public’s access to recreational land. If the Court of Appeals opinion were to stand, the City argued, then “Landowners must decide if making their land available for recreational purposes is worth the risk of effectively losing access to the immunity by having to litigate through trial whatever subjective beliefs an injured plaintiff asserts their principal purpose was.”
Unfortunately, that is where things stand today. On Oct. 5, 2023, the Oregon Supreme Court officially declined to review the Court of Appeals’ decision in Fields. This action, called “review denied” functions as a de facto endorsement by the Oregon Supreme Court of the Oregon Court of Appeals’ decision striking down recreational immunity.
At the heart of the dispute is whether a trial court can decide at the beginning of a case whether or not a plaintiff’s “primary purpose” when entering land was recreational or not recreational.

Subjective Intent is too Subjective for Recreational Immunity to Function as the Legislature Intended

The Court of Appeals did not base its decision on what Fields was actually doing on the City of Newport’s trail. Instead, the Court of Appeals turned to a dictionary for assistance with the word “walking.”
The Court of Appeals found that walking with a dog could sometimes be a recreational activity, but was not necessarily always a recreational activity.
The Court of Appeals said that even when walking and socializing, Fields’ “principal purpose” could have been “to go to and from the beach” which the Court did not consider to be recreational.

If, the Court reasoned, Fields was thinking that her “principal purpose” was to “access” the beach where she would begin to “recreate” with her dog and her friend, then recreational immunity does not protect the City (or any landowner). The key, according to the Oregon Court of Appeals, is the plaintiff’s subjective intent not her objective activities at the time.
Unless the Legislature steps in, from now on when a person using the city’s path claims that their subjective intent was not primarily to recreate, then recreational immunity does not apply at the beginning of a suit. Instead, the municipality (or private landowner) will have to defend the lawsuit all the way through a jury trial, so the jury can decide what the plaintiff was thinking about their “primary intent.”
Legally, this transforms recreational “immunity” from a legal rule that stops a lawsuit at the outset, and turns it into a defense that a city, county, school district, or private landowner can only try to use at trial. Recreational immunity is no longer a true immunity.

Is Anything Left of Recreational Immunity?

The protection from lawsuits that landowners relied on in deciding to open their land to the public is now likely gone for all trails. It may be gone for any property that someone can claim they “were just passing through”.
The Oregon Court of Appeals and Oregon Supreme Court have repeatedly issued rulings that have the effect of striking down some, or all, of the Legislature’s recreational immunity statute. The good news, though, is that the Oregon Legislature has repeatedly stood behind Oregon’s policy of encouraging private and public landowners to open their property to the public for recreational activities like hiking, mountain biking, kayaking, hunting, fishing, rock climbing, and accessing the beautiful coastline.
Once again, the League of Oregon Cities and the Association of Oregon Counties are ready to bring a bill to the Legislature in 2024 to restore recreational immunity. But the support of individuals and local governments is needed. The people of Oregon who enjoy recreational access to a wide range of properties, especially including trails to access climbing areas, the coast, rivers, streams and lakes, need to contact their local legislator and their local city or county officials to express their desire to restore recreational immunity.
Your CIS risk management consultant is available to assist you as you plan, evaluate, and mitigate the heightened risk as a result of the Fields v. City of Newport ruling.

RECOMMENDATONS FOR CITIES AND COUNTIES

Improved trails that are used to access a recreational area
should be closed. This especially includes trails, walkways and stairs used to access bodies of water, such as the ocean, lakes, rivers, streams and reservoirs.
Consider closing unimproved trails, because the subjective intent of the user can now nullify recreational immunity, which means if someone is injured on an unimproved trail, the city or county may find itself facing a costly jury trial to determine the injured persons intent in using the trail.
Speak with your City Attorney or County Counsel about how Fields v. Newport could negatively affect your other recreational offerings to the public. For instance, someone who trips in a park can now say their primary purpose in using the park was not recreation, but rather they were simply passing through the park to access some other area in your jurisdiction.
Download and utilize this audit for property you decide to leave open because it is not conducive to a claim from someone “just passing through”, to ensure your facility is protected as much as possible from liability claims.
- a. Consider requiring people to sign a form affirming they are using the property only for recreational purposes if your organization can afford to post someone at that location (at a skate park, for example).
Contact your legislator and any of the following organizations you are affiliated with: the League of Oregon Cities, the Association of Oregon Counties, the Special Districts Association of Oregon, or the Oregon Recreation and Park Association; express your desire to keep property free and open to everyone in Oregon for recreational activities.