Conant v. Stroup

• Decision Date: 14 August 2002
• Citation: 183 Or.App. 270,51 P.3d 1263
• Parties: Joyce CONANT, Appellant, v. John STROUP and Lisa Stroup, Respondents.
• Court: Oregon Court of Appeals

51 P.3d 1263

183 Or.App. 270

Joyce CONANT, Appellant, v. John STROUP and Lisa Stroup, Respondents.

98CV0489ST; A112020

Court of Appeals of Oregon.

Argued and Submitted April 15, 2002.

Decided August 14, 2002.

Timothy J. Vanagas, Gresham, argued the cause and filed the briefs for appellant. John A. Berge, Bend, argued the cause for respondents. With him on the brief was Bryant, Lovlien & Jarvis, P.C.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

LANDAU, P.J.

Plaintiff initiated this action for negligence arising out of injuries that she suffered while jogging on defendants' property. The trial court entered a directed verdict on the ground that defendants are immune under ORS 105.682, which provides that private landowners are immune from liability for personal injuries that arise out of the use of their land for recreational purposes when the owner permits any member of the public to use the land for those purposes. Plaintiff appeals, assigning error both to the directed verdict and to the denial of her motion to amend. We affirm.

Defendants own a 50-acre parcel of real property near Redmond. The property is used primarily for growing crops. It is surrounded by a barbed-wire fence on all sides. An irrigation canal runs along the eastern boundary of the property; in fact, defendants' property extends to the middle of the canal itself. A dirt road parallels the canal on defendants' land. A gate permits access to the dirt road.

Plaintiff often jogged along the dirt road that parallels the canal. Other members of the public also used the road for jogging and cycling. On one occasion, while plaintiff was running along the dirt path, one of two dogs that had been roaming free on defendant's property bit her.

Plaintiff filed a complaint against defendants for negligence. She alleged that she had been jogging on defendants' property with their implied, if not their express, permission. In their answer, defendants alleged as affirmative defenses that they never gave plaintiff permission to enter their land and that she was a trespasser. In the alternative, they alleged that, if she had been permitted to use the property, then they are immune from liability under ORS 105.682.

At trial, plaintiff's theory was that she was not a trespasser and that, instead, she had used the dirt road for jogging for so many years that she was entitled to assume that she had implicit permission to continue doing so. At the same time, she contended that the public generally had not been permitted to use the road; only she—and perhaps a few other individuals—had been permitted to use the road.

At the close of plaintiff's case, defendants moved for a directed verdict under ORS 105.682. Defendants argued that, assuming that plaintiff was correct that she was permitted to use the road, they are entitled to immunity. Plaintiff opposed the motion on the ground that the statute applies only when individuals are permitted as members of the general public. In this case, she argued, the public was not permitted to use the road; only she and perhaps a few other joggers and cyclists were permitted to use it.

The trial court granted the motion. The court explained that "the statute which the defendants claim gives them protection seems to apply when any person is allowed to use the property for recreational purposes and does not seem to require that the land owners throw the property open to the general public for everyone's use." Plaintiff complained that the court's ruling would lead to the absurdity of providing immunity whenever a landowner invites a social guest. The trial court replied that "that's not what's going on here." According to the trial court:

"The evidence [plaintiff] presented herself is that she jogged on that property for the better part of a decade, that at least during the period of time that [defendants] owned the property, she continued to jog on, on it. * * *

"That she sees other people on the trail. * * * [T]here were no signs indicating that entry was unwelcome or prohibited. This is a fifty-acre tract of land, not somebody's back yard on a 50 by 100 [foot] lot. And certainly, [plaintiff] is a member of the general public when she uses [defendants'] property for a jogging trail."

Plaintiff then moved to amend her complaint to allege a willful injury. The trial court denied the motion. On appeal, plaintiff first assigns error to the entry of the directed verdict for defendants. Her principal contention is that ORS 105.682 does not apply because defendants' land was not "open to the public" and she was not permitted to use the road as a member of the general public. Defendants argue that the trial court correctly concluded that the statute applies to any person who is permitted to use private property for recreational purposes.

In determining the scope of the immunity conferred by ORS 105.682, we are guided by the method described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). Our goal is to ascertain what the legislature intended, looking first to the text in its context and, if necessary, also to legislative history and other aids to construction. Id. at 610-12, 859 P.2d 1143. We begin with the question whether ORS 105.682 applies only when private land is opened to the general public for recreational use.

ORS 105.676 declares that

"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 woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or acquisition by the public of any right to use or continue the use of such land for recreational purposes, woodcutting or the harvest of special forest products."

(Emphasis added.) To give effect to that policy, ORS 105.682 provides, in part:

"[A]n 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 statute thus provides immunity for an owner of property who "either directly or indirectly permits any person to use the land for recreational purposes." In isolation, the phrase "any person" certainly is broad and unqualified. But the term "any" often carries with it limitations implicit from its context. As Black's Law Dictionary, 94 (6th ed 1990) explains, the word

"has a diversity of meaning and may be employed to indicate `all' or `every' as well as `some' or `one' and its meaning in a given statute depends upon the context and the subject matter of the statute."

See also Bryan A. Garner, A Dictionary of Modern Legal Usage, 65 (2d ed. 2001) ("[a]ny is greatly overworked in statutes"). ORCP 68 B, for example, provides that "[i]n any action, costs and disbursements shall be allowed[.]" Clearly, it does not mean literally any action. Rather, from the context, it may be seen that the term refers to any action filed in an Oregon circuit court and to which the Oregon Rules of Civil Procedure apply. ORCP 1 A. The question in this case is whether the legislature intended the reference to "any person" in ORS 105.682 to refer literally to any single person or to any person as a member of a limited universe of persons to which the statute applies. For the following reasons, we conclude that the legislature most likely intended the latter reading of the statute.

First, we must read ORS 105.682 in a manner that gives effect to its purpose. That purpose finds expression in ORS 105.676, which provides that the statute is intended "to encourage owners of land to make their land available to the public for recreational purposes." (Emphasis added.) The term "public" ordinarily refers to

"1: a place accessible or visible to all members of the community * * *

2a: an organized body of people * * * b: the people as a whole * * * [or]

3: a group of people distinguished by common interests or characteristics[.]"

Webster's Third New Int'l Dictionary, 1836 (unabridged ed. 1993); see also Black's at 1227 (defining "public" as either "the people at large" or enough people "as contradistinguishes them from a few"). That is the manner in which the legislature commonly uses the term. See, e.g., ORS 105.755 (a "public" road is "a road used by the general public"); ORS 161.015(10) (a "public" place is "a place to which the general public has access"); ORS 164.805(2) (a "public" way includes roads, streets, and other facilities operated "for the use by the general public"); ORS 167.060(8) (a "public" thoroughfare is one "designed for use, enjoyment or transportation of the general public"). Thus, a single person may be a member of the public, but, at least in the ordinary sense of the term, a single person is not "the public." The purpose of the statute is thus plain. If private landowners will make their lands available to the general public for recreational purposes, the state will "trade" that public access for immunity from liability that might result from the use of the property. See Brewer v. Dept. of Fish and Wildlife, 167 Or.App. 173, 190, 2 P.3d 418 (2000)

(ORS 105.682 reflects a trade: "by permitting recreational landowners to limit their liability in the event that they choose to open their lands to the public for recreational purposes without charge") (emphasis added). In light of that purpose, it seems likely to us that the legislature intended the immunity to apply only when permission is granted to a person as a member of the public generally, not as a specific invitee.

Second, other provisions of the same statute suggest the same...