Van Gordon by Van Gordon v. Portland General Elec. Co.

• Decision Date: 10 December 1982
• Docket Number: No. A7902-00508,A7902-00508
• Citation: 652 P.2d 817,59 Or.App. 740
• Parties: Brock A. VAN GORDON, by Elizabeth Ann VAN GORDON, his guardian ad litem, Respondent, v. PORTLAND GENERAL ELECTRIC COMPANY, a corporation, Appellant. PORTLAND GENERAL ELECTRIC COMPANY, a corporation, Appellant, v. Kino BARKER and Helene Barker, Respondents. ; CA 19901. . *
• Court: Oregon Court of Appeals

Page 817

652 P.2d 817

59 Or.App. 740

Brock A. VAN GORDON, by Elizabeth Ann VAN GORDON, his guardian ad litem, Respondent, v. PORTLAND GENERAL ELECTRIC COMPANY, a corporation, Appellant.

PORTLAND GENERAL ELECTRIC COMPANY, a corporation, Appellant, v. Kino BARKER and Helene Barker, Respondents.

No. A7902-00508; CA 19901.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted Feb. 11, 1982.

Resubmitted In Banc July 1, 1982.

Decided Oct. 20, 1982.

Reconsideration Dec. 10, 1982.

John R. Faust, Jr., Portland, argued the cause for appellant. With him on the briefs were Schwabe, Williamson, Wyatt, Moore & Roberts, James K. Buell and Buell, Black, Gates & Dupuy, Portland.

Janet C. Neuman, Portland, argued the cause for respondent Brock A. Van Gordon. With her on the brief was Tonkon, Torp, Galen, Marmaduke & Booth, Portland.

Margaret H. Leek Leiberan, Portland, argued the cause for respondents Kino Barker and Helene Barker. With her on the brief was Lang & Smith, Portland.

THORNTON, Judge.

Defendant Portland General Electric Company (PGE) appeals from a judgment entered after a jury verdict awarding plaintiff damages for injuries sustained by plaintiff at Austin Hot Springs. The issues are whether the trial court erred (1) in denying PGE's motions to dismiss and for a directed verdict, (2) in instructing the jury and (3) in ruling on the evidence.

Austin Hot Springs is located in a forested area on the upper Clackamas River. PGE allows public recreational use of the area and provides picnic facilities, entrance roads and parking facilities. The characteristic which accounts for the name and, presumably, the attractiveness of the area to bathers is that cool river water mixes with percolating hot water from underground springs. The effect is that pools are formed, either naturally or through the movement of rocks by bathers. The pools vary from moderate temperatures to 190 degrees Fahrenheit. Although steam is sometimes visible in the vicinity of the hotter pools, the pools are interspersed in a way that makes it generally impossible for bathers to know in advance what the precise heat level will be in a particular pool.

On May 20, 1978, plaintiff, then age 2, entered the hot springs area by car with his grandparents, the Barkers, and his four-year-old brother. They did not enter the area through the main entrance, and there was no sign at the entrance they did use to inform them that they were at Austin Hot Springs. They had not been in the area before. After using the picnic facilities, Mrs. Barker and the children went for a walk. On reaching a point on the river where they saw people bathing and wading, they decided to wade in a shallow pool near the bank. Thereafter, plaintiff moved from the water onto a rock and slipped and fell into an adjacent pool. He began to scream. Mrs. Barker was approximately 10 to 12 feet away; by the time she reached plaintiff, his legs were scalded. At the time plaintiff was injured, there were three signs in the hot springs area which read "HOT WATER." However, the words on the signs were not visible from the route Mrs. Barker and the children followed to the river, and she did not see the signs before plaintiff was injured.

Austin Hot Springs is subject to ORS 105.655 et seq., relating to "Public Recreational Use of Private Lands." ORS 105.660 provides:

"The Legislative Assembly hereby declares 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 by limiting their liability toward persons entering thereon for such purposes and, in the case of permissive use, 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 105.665 provides:

"Except as otherwise provided in ORS 105.665:

"(1) An owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose.

"(2) An owner of land who either directly or indirectly invites or permits any person to use his land for any recreational purpose without charge does not thereby:

"(a) Extend any assurance that the land is safe for any purpose;

"(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or "(c) Assume responsibility for or incur liability for any injury, death or loss to any person or property caused by an act or omission of that person."

ORS 105.675 provides, as relevant:

"Nothing in ORS 105.655 to 105.680 limits in any way any liability of an owner of land which may otherwise exist:

"(1) For his reckless failure to guard or warn against a dangerous condition, use, structure or activity on the land * * *

" * * *."

In Hogg v. Clatsop County, 46 Or.App. 129, 610 P.2d 1248 (1980), we said:

"ORS 105.665 clearly relieves defendant of any liability for mere negligent behavior. However, ORS 105.675(1) * * * provides for the retention of liability of landowners for reckless behavior. * * * " 46 Or.App. at 132, 610 P.2d 1248.

PGE first assigns as error the trial court's denial of its motion to dismiss or its motion for a directed verdict, because there was no evidence of recklessness. In Hogg, we adopted the test for the proof of recklessness under ORS 105.675 (quoting from Falls v. Mortensen, 207 Or. 130, 295 P.2d 182 (1956), overruled in part, Lindner v. Ahlgren, 257 Or. 127, 134, 477 P.2d 219 (1970)):

" ' " * * * A defendant's act is properly characterized as wilful, wanton or reckless * * * only when it was apparent, or reasonably should have been apparent, to the defendant that the result was likely to prove disastrous to the plaintiff, and he acted with such an indifference toward, or utter disregard of, such a consequence that it can be said he was willing to perpetrate it. The elements necessary to characterize an injury as wantonly or wilfully inflicted are (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. * * * " ' 207 Or. at 138 ." 46 Or.App. at 132-33, 610 P.2d 1248.

Both parties contend that they are entitled to prevail under this test; neither questions the correctness or completeness of the test.

The first issue presented is whether there was evidence to support a finding of recklessness in defendant's activities and thereby deprive defendant of the immunity provided.

Viewed most favorably to plaintiff, the evidence established several facts. Before plaintiff was injured, PGE had been apprised that severe burns had been sustained by persons who entered pools in the hot springs area without being forewarned of their extreme and unpredictable temperatures and that PGE employes were aware of previous burning incidents and of the dangerous characteristics of the water. At the time of plaintiff's injury, the three "HOT WATER" signs were visible from the main access routes to the water, but no warning was visible to persons who approached by the less commonly used but nevertheless accessible route followed by plaintiff's party. That route was not closed to visitors, and a water faucet and firepit for public use were located along it. In addition to the route used by plaintiff, there were other places in the hot springs area from which the water could be reached but from which the warnings could not be seen. The signs in the main hot springs area contained no cautionary language other than the words "HOT WATER." No employes were in attendance who were responsible for guarding or warning users of the springs. There were no warning, safety or precautionary measures or devices in the area except the three signs.

Although more signs or signs located differently or a full-time attendant might have made the area safer, defendant's failure to provide such measures does not as a matter of law rise to the level of "recklessness" that the legislature intended in ORS 105.675(1). We hold that the immunity provided in ORS 105.655 et seq. applies to defendant's conduct and that the motion should have been granted. The result argued for by the dissenting judges frustrates the declared policy of the State of Oregon to encourage private owners of recreational areas to make them available for use and enjoyment by the public. See Loney v. McPhillips, 268 Or. 378, 387, 521 P.2d 340 (1974).

We conclude that the trial court should have granted defendant's motion to dismiss or granted its motion for directed verdict. Defendant's Austin Hot Springs facility is open to the public without charge, and defendant's liability for injuries to users is controlled by ORS 105.655 et seq. The purpose of providing limited liability to owners of recreational land declared in ORS 105.660 is to encourage owners "to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." See also ORS 390.010. To further that goal, the legislature enacted ORS 105.665(1), which relieves owners of recreational land of any duty of care to keep their land safe for entry or use by others. It also provides that there is no duty to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes. Under subsection (2), a recreational land owner does not extend any assurance that the land is safe for any purpose and does not assume responsibility for any injury to any person.

Reversed and remanded...