Schlesinger v. City of Portland

• Decision Date: 13 July 2005
• Docket Number: 0206-05898.,A121555.
• Citation: 200 Or. App. 593,116 P.3d 239
• Parties: Fern Winkler SCHLESINGER, Appellant, v. CITY OF PORTLAND, acting by and through the Bureau of Parks and Recreation of the City of Portland, Respondent.
• Court: Oregon Supreme Court

116 P.3d 239

200 Or. App. 593

Fern Winkler SCHLESINGER, Appellant, v. CITY OF PORTLAND, acting by and through the Bureau of Parks and Recreation of the City of Portland, Respondent.

0206-05898.

A121555.

Court of Appeals of Oregon.

Argued and Submitted August 24, 2004.

Decided July 13, 2005.

Jonathan R. Gill argued the cause for appellant. With him on the briefs was Reeves, Kahn & Hennessy.

Harry Auerbach, Senior Deputy City Attorney, argued the cause and filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and EDMONDS, Judge,^* and DEITS, Judge pro tempore.

DEITS, J. pro tempore.

Plaintiff was injured on a path in a public park in the City of Portland. She filed a complaint naming the city as the sole defendant, alleging that the city was negligent in constructing and maintaining the path. The city moved to dismiss the complaint under ORCP 21 A(8), contending that it was immune under the Public Use of Lands Act, ORS 105.672 to 105.700, which provides that an owner of land is not liable for a personal injury that arises out of the use of the land for recreational purposes. The trial court agreed with the city and dismissed the complaint. Plaintiff appeals from the ensuing judgment. We review for errors of law, City of Keizer v. Lake Labish Water Control Dist., 185 Or.App. 425, 428, 60 P.3d 557 (2002), rev. den., 336 Or. 60, 77 P.3d 635 (2003), and affirm.

For the purposes of this appeal, the critical factual allegations are as follows: In June 2000, plaintiff was walking her dog on a gravel path in Albert Kelly Park, a park maintained by the Bureau of Parks and Recreation of the City of Portland. As plaintiff was standing on the path, the gravel on the path became unstable and began to slide downhill. Plaintiff was injured as a result. Because we are reviewing the dismissal of a complaint under ORCP 21 A(8), we accept those allegations as true. See, e.g., Boise Cascade Corp. v. Board of Forestry (A79626), 131 Or.App. 538, 540, 886 P.2d 1033 (1994), aff'd in part and rev'd in part on other grounds, 325 Or. 185, 935 P.2d 411 (1997). Plaintiff served a tort claim notice on the city and subsequently initiated this negligence action. Plaintiff's complaint names a single defendant: the "City of Portland, through the Bureau of Parks and Recreation of the City of Portland."

As noted, the city moved to dismiss the complaint, contending that it was immune from liability. The city relied on ORS 105.682, sometimes referred to as Oregon's "recreational use statute," Waggoner v. City of Woodburn, 196 Or.App. 715, 717, 103 P.3d 648 (2004); Conant v. Stroup, 183 Or.App. 270, 280, 51 P.3d 1263 (2002), rev. dismissed as improvidently allowed, 336 Or. 126, 81 P.3d 709 (2003), and on Brewer v. Dept. of Fish and Wildlife, 167 Or.App. 173, 2 P.3d 418 (2000), rev. den., 334 Or. 693, 56 P.3d 405 (2002), in which we rejected arguments that ORS 105.682(1) was unconstitutional under the remedy clause of Article I, section 10, of the Oregon Constitution. ORS 105.682 provides, in part:

"[A]n owner of land is not liable in contract or tort for any personal injury * * * that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes[.]"

According to the city, because plaintiff's injuries arose out of the recreational use of its park, her claim was barred by ORS 105.682.¹

At the hearing on the motion to dismiss, plaintiff conceded that, looking at the "surface" of ORS 105.682, the city was immune. However, plaintiff argued that applying ORS 105.682 to her negligence claim would violate the remedy clause of Article I, section 10. First, plaintiff contended that her complaint stated a common-law cause of action, which the legislature could not constitutionally eliminate. She further contended that her situation was distinguishable from the situation in Brewer. In plaintiff's view, Brewer established a "balancing of benefits and detriments" approach to remedy clause questions involving the recreational use statute. In the circumstances of Brewer, according to plaintiff, application of the recreational use statute balanced the detriment to the plaintiffs—the elimination of their cause of action—with a benefit—the right to use land that had not previously been open to the public. By contrast, however, plaintiff argued, her injury occurred on public land that she had the "inherent" right to use; accordingly, in her view, there was no benefit to her from application of the recreational use statute to offset the detriment of eliminating her cause of action.

The city responded that the critical question in this case, under the analysis that the Supreme Court set forth in Smothers v. Gresham Transfer, Inc., 332 Or 83, 124, 23 P.3d 333 (2001), was whether plaintiff would have been able to seek a remedy for the injury that she alleged at common law. At common law, the city argued, governmental immunity would have barred plaintiff's action for negligence against it. According to the city, because plaintiff would have had no remedy in this situation at common law, application of ORS 105.682 to bar plaintiff's claim would not violate the remedy clause of Article I, section 10. The city further argued that it would be inappropriate to apply the Brewer benefits and detriments analysis in this case and that, even if that analysis were applied, a proper balance had been struck here because plaintiff had the same benefit—the right to use public land—and detriment—inability to sue the city for negligence—that she would have had at common law.

Also at the hearing on the city's motion to dismiss, plaintiff raised a somewhat different argument. Plaintiff noted that the city itself would be liable in this case only by virtue of the doctrine of respondeat superior; it was actually city employees who acted negligently. Those employees would not have been protected by governmental immunity at common law. However, plaintiff reasoned, the Oregon Tort Claims Act, particularly ORS 30.265, prevents her from naming those employees as parties.² Thus, in plaintiff's view, ORS 105.682 and ORS 30.265 operating together deprive her of a common-law remedy in violation of Article I, section 10: At common law, she would have had a remedy against the negligent city employees, but ORS 30.265 bars her from enforcing that remedy directly, requiring instead that she seek a remedy from the city. She cannot seek a remedy from the city, however, because ORS 105.682 bars her from pursuing a claim against the city. The trial court asked for, and apparently received, additional briefing on that argument, but that briefing is not in the trial court file or part of the record on appeal.

As noted, the trial court dismissed plaintiff's complaint, and she now appeals. On appeal, plaintiff makes essentially the same arguments that she made to the trial court. In addition to the arguments outlined above, the city contends on appeal that plaintiff's argument that ORS 30.265 unconstitutionally bars any right that plaintiff might otherwise have to sue city employees for negligence is not properly raised in this case because plaintiff failed to name any individual employees as defendants or allege specifications of negligence on the part of any individual employees. The city further argues that plaintiff's argument fails because she cited no cases that establish that, at common law, she would have had a cause of action against individual city employees in this circumstance.³

The purpose of the remedy clause "is to protect absolute common-law rights respecting person, property, and reputation, as those rights existed when the Oregon Constitution was drafted in 1857." Smothers, 332 Or. at 118, 23 P.3d 333. In analyzing a remedy clause argument, we first examine the complaint to determine whether the plaintiff has alleged an injury to such a right. Id. at 124, 128, 23 P.3d 333; see also DeMendoza v. Huffman, 334 Or. 425, 433, 51 P.3d 1232 (2002) (first step under analytical approach outlined in Smothers "is to determine whether the injury that plaintiffs have alleged is one for which the remedy clause guarantees a remedy"). In this case, plaintiff's complaint alleges that she suffered injury and incurred medical expenses because defendant, the City of Portland, negligently failed to grade and construct the path and failed to properly monitor and maintain the gravel path. Under Smothers, we must decide whether, when the Oregon Constitution was written, an action for negligence under those circumstances was recognized at common law. 332 Or. at 128, 23 P.3d 333.

At common law before 1857, cities were immune from tort liability in connection with their "governmental" functions. E.g., Bailey v. Mayor, 3 Hill (N.Y.) 531, 539-41, 38 Am. Dec. 669 (1842); Esberg Cigar Co. v. Portland, 34 Or. 282, 287-88, 55 P. 961 (1899). See also Fowler V. Harper et al., 5 The Law of Torts § 29.6, 623-24 (2d ed. 1986); James D. Barnett, The Foundations of the Distinction Between Public and Private Functions in Respect to the Common-Law Tort Liability of Municipal Corporations, 16 Or. L. Rev. 250 (1937). The creation and maintenance of parks was considered to be a governmental function, and accordingly cities were not liable when the acts or omissions of their officers, agents, or employees led to injuries in municipal parks. Etter v. City of Eugene, 157 Or. 68, 71, 69 P.2d 1061 (1937). Accordingly, a plaintiff could not bring an action for negligence against a city for injuries received in a public park. Id.

Because a negligence action against a city for injuries received in a public park was not recognized at common law, giving the city the benefit of the immunity provided by ORS 105.682 in this case does not deprive plaintiff of a remedy protected by Article I, section 10. Put another way, any "right" to recover from the city for injuries sustained in a public park is not an ...