Johnson v. Gibson
Jurisdiction | Oregon |
Parties | Emily JOHNSON, Plaintiff, v. Scott GIBSON and Robert Stillson, Defendants. |
Citation | 358 Or. 624,369 P.3d 1151 |
Docket Number | US Court of Appeals Ninth Circuit 1335087,SC S063188. |
Court | Oregon Supreme Court |
Decision Date | 03 March 2016 |
Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause and filed the brief for plaintiff. With him on the brief was Christine N. Moore.
Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for defendants. With him on the brief was Denis M. Vannier, Deputy City Attorney.
Kathryn H. Clarke, Portland, argued the cause and filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Shenoa L. Payne, Haglund Kelley LLP, Portland.
Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Citycounty Insurance Services, Oregon School Boards Association, Special Districts Association of Oregon, and The International Municipal Lawyers Association.
Janet M. Schroer, Hart Wagner LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.
Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER and NAKAMOTO, Justices.*
This case is before the court on two certified questions from the United States Court of Appeals for the Ninth Circuit. See ORS 28.200 –28.255 ( ). As framed by the Ninth Circuit, the questions are (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are "owner[s]" of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are "owner[s]" under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.2 We conclude that the individual employees in this case do not qualify as "owner[s]" under the Act, and that we need not address the second certified question.
This case arose when plaintiff, who is legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City.
Plaintiff filed her complaint in federal district court, invoking federal claim and supplemental jurisdiction. Plaintiff alleged, under federal law, that the City had violated Title II of the American's with Disabilities Act (ADA), 42 USC sections 12131 to 12165, and, under state law, that all three defendants were liable for negligently causing her injuries. The City filed two motions: A motion to substitute itself as the sole defendant, pursuant to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.302 ; and a motion for summary judgment.
The district court denied the City's motion for substitution. Johnson v. City of Portland, CV No. 10–117–JO (D.Or. Feb. 10, 2010) ("Johnson I "). The court reasoned that substitution of the City would violate the remedy clause in Article I, section 10, of the Oregon Constitution, because the City was immune from liability under the Public Use of Lands Act. Had the court substituted the City as the sole defendant in the case, the only defendant would have been immune and entitled to dismissal, leaving plaintiff without a remedy for her injury. Id.
The district court granted the City's motion for summary judgment, in part. The court granted the City summary judgment as to plaintiff's federal ADA claim, leaving plaintiff's negligence claim as her only remaining claim. The district court declined to retain supplemental jurisdiction over that state law claim and dismissed the case. Id.
Plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Plaintiff again alleged a state law negligence claim against defendants Gibson and Stillson, and those defendants again filed a motion to substitute the City as the sole defendant under the OTCA. In Johnson II, the district court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F.Supp.2d 1075, 1082 (D.Or.2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under the Public Use of Lands Act. Id. at 1083. The district court agreed, reasoning that employees who maintain land qualify as "owner[s]" under that Act, and that defendants Gibson and Stillson were therefore immune from liability.
Id. at 1085. The court also held that the Public Use of Lands Act does not violate the remedy clause. Id. at 1088. The court granted defendants' motion for summary judgment. Id. at 1089. Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit certified to this court the two questions now before us.
We begin with the first question posed and the text of the Oregon Public Use of Lands Act, which provides, in part:
ORS 105.682(1). "Land" is defined as "all real property, whether publicly or privately owned." ORS 105.672(3). "Owner" is defined as follows:
From that definition of "owner," defendants make a three-step argument: First, that the definition of the term "owner" is ambiguous and is not limited to those with a legal interest in the land; second, that, considered in its proper context, the term includes owners' employees and agents; and third, that as City employees, defendants are entitled to recreational immunity.
Defendants' argument focuses on the second sentence of the definition of "owner." Defendants recognize that they do not qualify as "owner[s]" under the first sentence of that definition because they do not have legal title to, or a legal right in, the property where plaintiff was injured. However, they contend, the second sentence in the definition is broader, and it includes both persons who have a legal right in property—specifically, "tenant [s]" and "lessee[s]"—and those who do not—specifically, "occupant[s]" and those who are "in possession of the land." Id. According to defendants, the dictionary definitions of those latter terms demonstrate that "owner[s]" include persons without legal or equitable title to, or interest in, land.
A "possessor" is "one that possesses: one that occupies, holds, owns, or controls." Webster's Third New Int'l Dictionary 1770 (unabridged ed. 2002). A "possessor" is also "one that holds property without title—called also naked possessor; contrasted with owner. " Id. (emphasis in original). "Possession" means "the act or condition of having in or taking into one's control or holding at one's disposal"; "actual physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property"; "something owned, occupied, or controlled." Id. "Occupy" means "to hold possession of"; "to reside in as an owner or tenant." Id. at 1561. An "occupant" is "one who takes the first possession of something that has no owner"; "one who occupies a particular place or premises"; and "one who has the actual use or possession of something." Id. 1560.
Like defendants, we surmise, from those definitions, that the terms "occupant" and "person in possession of the land" may include persons without legal or equitable title to, or interest in, the land. But that is not the only lesson we take from those definitions. Like plaintiff, we conclude that those terms describe persons who do more than take up space on the land. Under those definitions, an "occupant," or a "person in possession of the land" must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made of it. The terms "occupant" and "person in possession of the land" are used in the same sentence as the terms "tenant" and "lessee." ORS 105.672(4) (2007). Tenants and lessees have the ability to decide who may use the space that they control and for what purposes. Under noscitur a sociis, a maxim of statutory construction that tells us that the meaning of an unclear word may be clarified by the meaning of other words used in the same context, it is likely that the legislature intended that "occupant[s]" and "person[s] in possession of the land" have the same type of control as tenants and lessees. See State v. McCullough, 347 Or. 350, 361, 220 P.3d 1182 (2009) ( ). Under that interpretation, only persons with authority to control and exclude from the land qualify...
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