Brewer v. Dept. of Fish and Wildlife

• Decision Date: 10 May 2000
• Citation: 2 P.3d 418,167 Or. App. 173
• Parties: Rustin A. BREWER, as Personal Representative for the Estate of Caitlin Jean O'Connor, Deceased, Appellant, v. DEPARTMENT OF FISH AND WILDLIFE; Fish and Wildlife Commission; Department of Transportation; Oregon Transportation Commission; Swackhammer Ditch Improvement District and State Parks & Recreation Department, Respondents. Michael O'Connor, as Personal Representative for the Estate of Pamela Anne O'Connor, Deceased, Appellant, v. Department of Fish and Wildlife; Fish and Wildlife Commission; Department of Transportation; Oregon Transportation Commission; Swackhammer Ditch Improvement District and State Parks & Recreation Department, Respondents.
• Court: Oregon Court of Appeals

2 P.3d 418

167 Or. App. 173

Rustin A. BREWER, as Personal Representative for the Estate of Caitlin Jean O'Connor, Deceased, Appellant, v. DEPARTMENT OF FISH AND WILDLIFE; Fish and Wildlife Commission; Department of Transportation; Oregon Transportation Commission; Swackhammer Ditch Improvement District and State Parks & Recreation Department, Respondents.

Michael O'Connor, as Personal Representative for the Estate of Pamela Anne O'Connor, Deceased, Appellant, v. Department of Fish and Wildlife; Fish and Wildlife Commission; Department of Transportation; Oregon Transportation Commission; Swackhammer Ditch Improvement District and State Parks & Recreation Department, Respondents.

(97-10--10-38340; CA A103245 (Control) and CA A103246).

Court of Appeals of Oregon.

Argued and Submitted October 6, 1999.

Decided May 10, 2000.

W. Eugene Hallman, Pendleton, argued the cause and filed the briefs for appellants.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for respondents Department of Fish and Wildlife, Fish and Wildlife Commission, Department of Transportation, Oregon Transportation Commission, and State Parks & Recreation Department. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

G. Kenneth Shiroishi, Portland, argued the cause for respondent Swackhammer Ditch Improvement District. With him on the brief were Dunn Carney Allen Higgins & Tongue.

Before LANDAU, Presiding Judge, and De MUNIZ and LINDER, Judges.

De MUNIZ, J.

Plaintiffs appeal from the trial court's dismissal of their claims for the wrongful deaths of Pamela Anne O'Connor and her daughter Caitlin Jean O'Connor. Plaintiffs are the personal representatives of the O'Connors' estates. The O'Connors died while swimming in an area of Catherine Creek below a fish migration dam owned or maintained by the various defendants. Plaintiffs filed suit against numerous state agencies (state defendants) and the Swackhammer Ditch Improvement District (Swackhammer), alleging that defendants were negligent because the dam was built in such a manner that it created a dangerous undertow in which the O'Connors were caught. Defendants moved to dismiss plaintiffs' claims under ORCP 21 A(8) on the ground that plaintiffs failed to state a claim, because defendants were immune from liability under the Public Use of Lands Act, ORS 105.672 et seq. (Act). The trial court rejected plaintiffs' argument that the Act was unconstitutional under Article I, section 10, of the Oregon Constitution, and it granted defendant's motion. Plaintiffs appeal, and, for the following reasons, we affirm.

We review for errors of law a trial court's grant of a motion to dismiss for failure to state a claim under ORCP 21 A(8), accepting as true all well-pleaded factual allegations and giving plaintiffs the benefit of all favorable inferences that may be drawn from the facts alleged. Yanney v. Koehler, 147 Or.App. 269, 272, 935 P.2d 1235,rev. den. 325 Or. 368, 939 P.2d 45 (1997). On June 30, 1996, Pamela O'Connor, her son, and her nine-year-old daughter Caitlin went with a neighbor child to an area of Catherine Creek below a fish migration dam that traditionally has been used by the public for recreational purposes, including swimming. One of the children fell into the creek, and Pamela attempted to rescue the child but was caught in an undertow created by the dam. Caitlin then attempted to rescue her mother. Both Pamela and Caitlin suffered injuries resulting in their deaths. Plaintiffs alleged in their complaint that the O'Connors' deaths were the result of negligence by defendants in building and using a dam that unnecessarily created an unreasonably dangerous undertow.

Defendants moved to dismiss plaintiffs' claims on the ground that they failed to state a claim against defendants as a matter of law because defendants were immune from liability under the Act. Plaintiffs responded that the Act serves to deprive them of all remedies and therefore violates Article I, section 10, of the Oregon Constitution. The trial court held that the Act defeated plaintiffs' claim and did not violate Article I, section 10. Plaintiffs appeal, arguing that the trial court erred because the Act does not bar their actions against all defendants and because, in any event, the Act violates Article I, section 10.

We turn first to plaintiffs' statutory argument that the Act does not bar their actions against all defendants. Plaintiffs alleged that the property on which the accidents occurred is owned by the Oregon Transportation Commission or the Oregon State Parks and Recreation Department and that the Oregon Fish and Wildlife Commission is the owner of the dam and is responsible for its maintenance and operation. Plaintiffs also alleged that the Oregon Department of Transportation or Oregon State Parks and Recreation Department maintains and controls the land for the Oregon Transportation Commission and that the Oregon Department of Fish and Wildlife (ODFW) constructed the dam and is responsible for its maintenance and operation. Plaintiffs further alleged that Swackhammer is in charge of maintenance and operation of the dam. Plaintiffs argue on appeal that only one entity owns the land on which the accident occurred and that the others therefore cannot be deemed to fall within the immunity provided by the Act. Plaintiffs argue that, based on its allegations, neither ODFW nor Swackhammer is an "owner" and thus does not qualify for immunity under the Act.

ORS 105.682(1) provides:

"Except as provided by subsection (2) of this section [pertaining to intentional injuries], and subject to the provisions of ORS 105.688 [limiting immunity to those who do not charge for use of the land or who charge no more than $20 per cord for woodcutting on the land], 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 of special 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."

"Owner" is defined by ORS 105.672(4) as "the possessor of any interest in any land, including but not limited to possession of a fee title. `Owner' includes a tenant, lessee, occupant or other person in possession of the land." "Land" is defined by ORS 105.672(3) as including "all real property, whether publicly or privately owned." ORS 105.688(1)(b) and (c) make ORS 105.682(1) applicable to all "bodies of water, watercourses, * * * fixtures and structures" and all "machinery or equipment" on the land in question.

Although "real property" as used in the "land" definition found in ORS 105.672(3) is not defined by statute, its common meaning would include fixtures such as dams. Real property is defined as: "Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land." Black's Law Dictionary, 1234 (7th ed 1999). That definition comports with the declaration in ORS 105.688 indicating that the immunities provided by ORS 105.682 extend to fixtures such as a dam. We conclude that the Act applies to the dam and the waters below it.

The question, then, is whether ODFW and Swackhammer fall within the definition of "owner." ORS 105.672(4). Plaintiffs alleged in their complaint that ODFW and Swackhammer both maintain and operate the dam. In order for plaintiffs to prevail on this point, we would have to conclude that one who maintains and operates a fixture on land is not an "occupant, or other person in possession of the land" under the definition provided in ORS 105.672(4). Although we have not construed the current version of the definition of "owner" in ORS 105.672(4), our interpretation of a very similar definition in an earlier version of the Act is informative. In Denton v. L.W. Vail Co., 23 Or.App. 28, 30-31, 541 P.2d 511 (1975), the plaintiff was injured while riding a motorcycle on a closed stretch of road that was owned by the federal government but was under construction by the Oregon Department of Transportation and its contractors. Under an earlier definition of "owner" found in the Act, we concluded that "the contractors and the Department of Transportation were persons in possession of the land."¹Id. at 37, 541 P.2d 511. Although the scope of the Act has changed since Denton was decided, the key language of the definition of "owner" has not. In Denton, we found that those who were constructing improvements on land were "owners" within the meaning of the definition found in the Act. If those who merely construct improvements on land qualify as owners, certainly those who maintain and operate improvements on land also fall within the scope of that definition. The trial court correctly concluded that ODFW and Swackhammer come within the ambit of the Act for purposes of immunity.

We turn to plaintiffs' constitutional arguments. Article I, section 10, of the Oregon Constitution provides, in part, that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Plaintiffs argue that the Act deprives them of a remedy by due course of law for the injuries to Pamela and Caitlin O'Connor that otherwise would be cognizable under Oregon law. Plaintiffs contend that the legislature has recognized a right to recover for injuries such as those sustained by the O'Connors via the wrongful...