Agenda Report 2017-01-09-04 Date: December 29, 2016 To: From: Russ Axelrod, Mayor Members, West Linn City Council Ken Worcester, Parks and Recreation Director KW Through: Eileen Stein, City Manager Subject: Resolution 2017-01 in Support of a Legislative Bill to Restore Recreational Immunity to Landowners Purpose The Oregon Public Use of Lands Act encourages public and private owners of land to make their land available to the public for recreational purposes by providing landowners immunity from tort liability. However, a recent Oregon Supreme Court decision undermined the immunity guaranteed in the Act, which could result in a severe reduction of land available to Oregonians for their recreational use and enjoyment. The Oregon Recreation and Parks Association and the League of Oregon Cities are actively pursuing the legislation to restore Recreational immunity to both public and private Landowners. Question(s) for Council: Is the City Council in support of this legislation? Public Hearing Required: None required. Background & Discussion: According to the Public Use of Lands Act, recreational purposes include, but are not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project, gardening, woodcutting and for the harvest of special forest products. The Public Use of Lands Act has increased the availability of land for free recreation by limiting liability to cities, counties, parks, schools and a wide range of private owners, including farmers and timber companies that allow hunters, anglers, hikers, mountain bikers and other members of the public to use or traverse their lands at no charge. This decision impacts all public and private lands in Oregon that are available to the public free of charge to recreate on. This includes areas like state forests/parks, county parks, open space, playgrounds, recreational facilities, irrigation district easements, public docks, gifted or undeveloped property used
Page 2 City of West Linn Agenda Report for hiking, biking, hunting etc., lakes/reservoirs used for boating and swimming, as well as farms, ranches and private forest lands. For more than twenty years the Public Lands Use Act had been broadly interpreted. However, a 2016 Oregon Supreme Court decision, Johnson v. Gibson, undermined the immunity by ruling that when the Legislature passed the Public Lands Act it only immunized the actual landowner and did not extend the immunity to employees, agents, volunteers and the like who act on behalf of the landowners. This ruling effectively undermines a public land-owners recreational immunity from tort liability under the Act because public employers are statutorily required to represent and indemnify their employees, agents and volunteers who are acting within the course and scope of their duties. It also exposes private land owners to similar liability because they will likely be ultimately found responsible for their employees negligence. As a result of this ruling both public and private landowners will likely face substantially increased insurance premiums for this new risk exposure, thereby forcing them to reduce recreational opportunities or services or to limit access or entirely close their property to recreational use. The bill clarifies that a landowner does not owe a duty to inspect and maintain the land in a safe condition for entry or use by the public for recreational purposes. Therefore, the landowner does not extend any assurance that the land is safe for any purpose and does not assume responsibility or incur liability for injury, death or loss to any person or property. Budget Impact: N/A Council Options: 1. Adopt the resolution. 2. Do not adopt the resolution Staff Recommendation: I recommend the City Council adopt the resolution. Potential Motions: I move to adopt Resolution 2017-01 in support of restoring recreational immunity to landowners. Attachments: 1. Resolution 2017-01 2. Fact Sheet
RESOLUTION NO. 2017-01 A RESOLUTION RECOMMENDING RESTORING RECREATIONAL IMMUNITY RIGHTS WHEREAS, in 1995, the Legislative Assembly declared it to be the public policy of the State of Oregon to encourage landowners to make their land available to the public for recreational purposes by limiting their liability toward persons entering for such purposes; and WHEREAS, recreational purposes include, but are not limited to: outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, water sports, winter sports; viewing or enjoying historical, archaeological, scenic or scientific sites; volunteering for any public purpose project, including for any of the listed activities; and gardening, woodcutting and harvesting of special forest products; and WHEREAS, the Public Use of Lands Act ( Act ) has increased the availability of land for free recreation by citizens and visitors alike by limiting liability to cities, counties, park districts, irrigation districts, schools and private landowners, including property-owner associations, farmers and timber companies that allow members of the public to use or traverse their lands at no charge for recreation purposes because of this Act; and WHEREAS, for twenty years, the Act has been broadly interpreted to extend this immunity from liability to apply not only to landowners but also to the landowner s employees agents, and volunteers; and WHEREAS, in Johnson v. Gibson, the Oregon Supreme Court held that when the Legislature passed the Public Use of Lands Act, it intended to immunize only the landowner, otherwise the Legislative Assembly would have included employees, agents and volunteers in the Act; and WHEREAS, this ruling effectively undermines a landowner s recreational immunity from tort liability under the Act because public employers are statutorily required to represent and indemnify their employees and most, if not all, landowners who allow access to their lands free of charge will ultimately be responsible for the negligence of their employees that results in injury to a member of the public or property; and WHEREAS, landowners will likely either face substantially increased insurance premiums for this new risk exposure or have to close their property or amenities to Oregonians trying to recreate due to the result of this decision. NOW, THEREFORE, THE CITY OF WEST LINN RESOLVES AS FOLLOWS: SECTION 1. The City of West Linn supports legislation in the 2017 Oregon Legislative Assembly promulgated to restore recreational immunity to landowners and their officers, employees, agents or volunteers who are acting within the scope of their employment or duties to continue to encourage landowners to allow Oregonians to access their lands for recreational use and enjoyment.
This resolution was PASSED and ADOPTED this 9th day of JANUARY 2017, and takes effect upon passage. ATTEST: RUSSELL B. AXELROD, MAYOR KATHY MOLLUSKY, CITY RECORDER APPROVED AS TO FORM: CITY ATTORNEY
RESTORE RECREATIONAL IMMUNITY REQUEST Restore recreational immunity to landowners so they continue to allow Oregonians to access their land for recreational use and enjoyment. BACKGROUND What is Recreational Immunity? Landowners, both public and private, who make their land available without charge for recreational use by the public are not liable if a person is injured while using the land for recreational purposes. The Public Use of Lands Act has increased the availability of land for free recreation by limiting liability to cities, counties, parks, schools and a wide range of private owners, including farmers and timber companies that allow hunters, anglers, hikers, mountain bikers and other members of the public to use or traverse their lands at no charge. Recreational immunity is the cornerstone principle that secures the public policy goals of the Oregon Public Use of Lands Act. Photo Blue Mountain Land Trust SUPPORTERS Oregon Recreation and Park Association Special Districts Association of Oregon Metro Oregon Farm Bureau Oregonians in Action Oregon Forest Industries Council Coalition of Oregon Land Trusts Lane County League of Oregon Cities City of Gresham City of Hillsboro City of Medford City of Portland Association of Oregon Counties Oregon School Boards Association Metropolitan Mayor s Consortium
RESTORE RECREATIONAL IMMUNITY OREGON SUPREME COURT CASES Johnson v. Gibson i In Johnson v. Gibson, the Court held that when the Legislature passed the Public Lands Act, it intended only to immunize the actual landowner, and never intended recreational immunity to protect employees or agents acting on behalf of the landowners. This ruling effectively undermines a landowner s recreational immunity from tort liability under the Act. Public employers are statutorily required to indemnify their employees ii and most, if not all, landowners will ultimately be responsible for the negligence of their employees that results in injury to a member of the public. Landowners must now weigh whether allowing the public to recreate on their land and in their facilities is worth the increased risk of liability. Horton v. OHSU iii In Horton, the Court confirmed the need for statutory liability limitations to satisfy the Oregon Constitution s remedy clause and reinstituted a flexible analysis for deciding remedy clause iv cases, which requires the Legislature to clearly demonstrate its reasons for adjusting duties and remedies that one person owes another. Expressly stating the duties owed to members of the public who use public or private land for recreational purposes and why those duties were altered would satisfy the remedies clause and ensure recreational immunity is not illusory for landowners. PROPOSED AMENDMENTS Following Johnson, we seek to amend ORS 105.672 to restore recreational immunity to a landowner s officers, employees, agents or volunteers who are acting within the scope of their employment or duties. Following Horton, we seek to amend ORS 105.682 to satisfy the remedy clause to expressly state a landowner s duty of care toward members of the public who use the land for recreation without charge. i Johnson v. Gibson, 358 Or 624 (2016) ii ORS 30.285 & 30.287 iii Horton v. OHSU, 359 Or 168 (217-221) (2016) iv Article I, section 10, of the Oregon Constitution provides that every man shall have remedy by due course of law for injury done him in his person, property, or reputation.