Landis v. Limbaugh

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: DEVORE, J.
• Citation: Landis v. Limbaugh, 282 Or App 284, 385 P.3d 1139 (Or. App. 2016)
• Decision Date: 16 November 2016
• Docket Number: A159429
• Parties: Sheila LANDIS, Plaintiff-Appellant, v. Wayne LIMBAUGH, as Personal Representative of the Estate of Florence Herwick, Defendant, and Washington County, a governmental subdivision of the State of Oregon, Defendant-Respondent.

282 Or.App. 284

385 P.3d 1139

Sheila LANDIS, Plaintiff-Appellant,

v. Wayne LIMBAUGH, as Personal Representative of the Estate of Florence Herwick, Defendant,andWashington County, a governmental subdivision of the State of Oregon, Defendant-Respondent.

A159429

Court of Appeals of Oregon.

Argued and submitted April 13, 2016.

November 16, 2016

Jan. K. Kitchel argued the cause for appellant. With him on the briefs was Cable Huston LLP.

Christopher A. Gilmore argued the cause and filed the reply brief for respondent. On the answering brief was Chelsea Glynn.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

DEVORE, J.

Plaintiff fell and was injured while jogging on a sidewalk in Washington County. She brought a negligence action alleging a failure to inspect or maintain the sidewalk and a failure to warn pedestrians. Washington County moved for summary judgment, and the trial court granted the motion on the basis that the county was immune under Oregon's recreational use statutes, ORS 105.668 to ORS 105.700. Plaintiff appeals, contending that the trial court erred in determining that the county was immune. The county disagrees and, in the alternative, asks that we affirm on the basis that it did not own the abutting land and, therefore, was not a responsible owner under the Beaverton City Code. We reject both defenses, reverse, and remand.

BACKGROUND

"On review of a summary judgment, we determine whether the moving party is entitled to judgment as a matter of law. * * * [W]e view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party." Stevens v. Bispham , 316 Or. 221, 223, 851 P.2d 556 (1993) (internal citations omitted).

While out jogging on a sidewalk along a street, plaintiff tripped and fell on a section that was pitched upward. As a result, she suffered a fractured elbow and needed multiple surgeries.

Plaintiff brought a negligence action against two defendants—the county and Limbaugh as personal representative of the Herwick estate.¹ Plaintiff alleged that both defendants had failed to inspect and maintain the sidewalk and had failed to warn pedestrians of the sidewalk's condition. Plaintiff also contended that, because the county "owns the land under the sidewalk pursuant to the 1992 deed[,]" the county owned land abutting or adjacent to the sidewalk so as to become liable under the Beaverton City Code for her injuries.²

In support of a motion for summary judgment, the county contended, in part, that the county was entitled to "absolute immunity" under the Public Use of Lands Act, ORS 105.668 -105.700. The county urged that the statute should be construed to apply when "the principal purpose [of] the person using the land [is] for recreational purposes." In the county's view, immunity does not depend upon whether "the land [is used] primarily for a recreational purpose." (Emphasis added.) The county concluded that, because plaintiff was jogging, and her jogging was recreation, the statute's immunity should preclude her claim against the county.

Plaintiff responded that immunity should not be determined simply by a plaintiff's purpose for being on the land. Rather, she urged, immunity involved the nature of the land being used. She emphasized that the recreational use statutes were enacted to provide a quid pro quo arrangement with landowners—in exchange for opening land to the public, landowners receive statutory immunity. That exchange rationale, said plaintiff, should not logically extend to a sidewalk already available to the public for general use, and, therefore, the statute should not apply to her claim.³

As an alternate basis for summary judgment, the county contended that Limbaugh, not the county, actually "owned the property in fee at the time of the incident." The county characterized the conveyance provided by the Herwick Estate to the county in 1992 as an easement rather than a fee title. Thus characterized, the county concluded that "Limbaugh [was] solely responsible under the Beaverton City Code [BCC or city code]." BCC 5.05.018 ("No person owning real property shall cause or allow the sidewalk, curb, or monolithic curb and gutter in the abutting public right-of-way to present an unreasonable risk of harm to persons or property."). Plaintiff disagreed, disputing the county's characterization of its deed.

The trial court granted the county's motion for summary judgment "based on the statutory immunity defense."⁴ The trial court did not reach the county's argument that it could not be liable under the city code because it was not the owner of the land adjacent to the sidewalk. Plaintiff assigns error to the court's summary judgment ruling.

On appeal, the parties reprise their immunity arguments, and the county reiterates its deed defense. We consider the county's two defenses in turn and agree with plaintiff in each instance.

RECREATIONAL IMMUNITY DEFENSE

The first defense asks us to interpret Oregon's recreational use statutes. To do so, we follow the framework of statutory construction established in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610–12, 859 P.2d 1143 (1993), and modified in State v. Gaines , 346 Or. 160, 172, 206 P.3d 1042 (2009), to discern legislative intent. "We attempt to discern the meaning of the statute most likely intended by the legislature that enacted it, examining the text in context, any relevant legislative history, and pertinent rules of interpretation." DCBS v. Muliro , 359 Or. 736, 742, 380 P.3d 270 (2016) (citing Gaines , 346 Or. at 171–72, 206 P.3d 1042 ). "We begin with the text and context of the statute, which are the best indications of the legislature's intent." State v. Walker , 356 Or. 4, 13, 333 P.3d 316 (2014).

The legislature's intent is expressed in the statement of public policy that introduces the recreational immunity statutes. Although the case at hand presents a question of first impression, the answer is implicit in that opening statement of policy:

"[I]t 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 , * * * 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 the acquisition by the public of any right to use or continue the use of such land for recreational purposes * * *."

ORS 105.676 (emphases added); see also Sundermier v. PERS , 269 Or.App. 586, 595, 344 P.3d 1142, rev. den. , 357 Or. 415, 356 P.3d 638 (2015) ( "Statements of statutory policy are also considered useful context for interpreting a statute."). The same terms, which are significant for our review, recur in the immunity statute itself. ORS 105.682 provides that:

"(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, 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, gardening, 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 , gardening, 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, gardening, 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, gardening, woodcutting or the harvest of special forest products.

"(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products."

(Emphases added.) Next, a companion statute describes the places where a landowner may choose "to permit" or "to make their land available to the public for recreational purposes." Those places are many. Under ORS 105.688, the places that a landowner may make available for recreational use, with concomitant immunity, include, in part:

"(a) All land, including but not limited to land adjacent or contiguous to any bodies of water, watercourses or the ocean shore * * *;

"(b) All roads, bodies of water, watercourses, rights of way, buildings, fixtures and structures on the land described in paragraph (a) of this subsection;

"(c) All paths, trails, roads, watercourses and other rights of way while being used by a person to reach land for recreational purposes, gardening, woodcutting or the harvest of special forest products, that are on land adjacent to the land that the person intends to use for recreational purposes, gardening, woodcutting or the harvest of special forest products, and that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes, gardening, woodcutting or the harvest of special forest products."

Not only are the places many which a landowner may make available, but the definition of "landowners" is broad, too. That is, the legislature has provided that public, as well as private landowners may choose to make lands available and qualify for immunity. ORS 105.672(3) (" ‘Land’ includes all real property, whether publicly or privately owned."); Coleman v. Oregon Parks and Recreation Dept. , 347 Or. 94, 99–100, 217 P.3d 651 (2009) (addressing whether the defendant qualified for immunity as a landowner that permitted the public to use its land, a state park, for recreational purposes).

From that statutory construct, we draw attention to central terms of these statutes in order that they are not lost among the clauses and qualifiers. Returning to ORS 105.682(1), we stress that "an owner of land is not...