Waggoner v. City of Woodburn

• Decision Date: 29 December 2004
• Citation: 196 Or. 715,196 Or. App. 715,103 P.3d 648
• Parties: Jean WAGGONER, Appellant, v. CITY OF WOODBURN, Respondent.
• Court: Oregon Court of Appeals

103 P.3d 648

196 Or. App. 715

196 Or. 715

Jean WAGGONER, Appellant, v. CITY OF WOODBURN, Respondent.

03C-10020; A123133.

Court of Appeals of Oregon.

Argued and Submitted December 6, 2004.

Decided December 29, 2004.

J. Michael Alexander argued the cause and filed the briefs for appellant. With him on the briefs was Swanson, Lathen, Alexander & McCann, PC.

Bruce Mowrey argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

LANDAU, P.J.

Plaintiff was injured while using a swing at a public park. She initiated this action for negligence against defendant, the owner of the park. Defendant obtained summary judgment dismissing the claim on the ground that defendant is entitled to immunity under the state's recreational use statute, ORS 105.682. Plaintiff appeals, arguing that the immunity that the statute affords should apply only to undeveloped, rural land in its natural state, not to public parks. Defendant relies on the wording of the statute, which provides for immunity when an injury arises out of the use of "all public and private lands" to which the public has been invited for recreational use.

ORS 105.688(1)(a). We agree with defendant and affirm.

The relevant facts are not in dispute. Defendant is a municipality that owns and maintains Burlingham Park, a public park. Plaintiff was using a swing set at the park when it broke, dropping plaintiff to the ground and causing her injury. Her complaint alleged that her injuries were the result of defendant's negligence in failing to properly inspect and maintain the swing set and in failing to provide a safe landing area below the swing set. Defendant answered, asserting as an affirmative defense that it is entitled to immunity under ORS 105.682, which provides:

"[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 * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes[.]"

Defendant then moved for summary judgment on the basis of ORS 105.682. Plaintiff filed a motion for partial summary judgment, arguing that, on the undisputed facts, the immunity afforded by that statute is not available in this case. The trial court granted defendant's motion, denied plaintiff's motion, and dismissed the complaint. On appeal, plaintiff argues that the trial court erred in granting defendant's motion and in denying her motion. According to plaintiff, ORS 105.682 applies only "to undeveloped land, land in its natural state, and/or land not otherwise intended principally for recreational use." Plaintiff acknowledges that the phrasing of the statute does not — at least not expressly — say that. She complains, however, that defendant and the trial court "overfocuse[d] on the provisions of the current statute, and its particular language." Defendant responds that the wording of the statute is indeed controlling and that that ends the matter.

The parties' arguments require us to determine the intended meaning of ORS 105.682. That, in turn, requires us to apply the interpretive method described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993); that is, we examine "first and foremost" the text in context and, if necessary, legislative history and other aids to construction. State v. Harris, 157 Or.App. 119, 123, 967 P.2d 909 (1998).

We begin with the text in context. 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 * * * by limiting their liability toward persons entering thereon for such purposes." To effectuate that policy, ORS 105.682 establishes, as we have noted, immunity from tort liability for "any personal injury * * * that arises out of the use of the land for recreational purposes * * * when the owner of [the] land * * * permits any person to use the land for recreational purposes." As we noted in Conant v. Stroup, 183 Or.App. 270, 275-76, 51 P.3d 1263 (2002), rev dismissed, 336 Or. 126, 81 P.3d 709 (2003), the purpose of the statute is plain enough: If 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."¹ (Emphasis omitted.) See also Brewer v. Dept. of Fish and Wildlife, 167 Or.App. 173, 190, 2 P.3d 418 (2000),

rev. den., 334 Or. 693, 56 P.3d 405 (2002) purpose of statute is to "permit[ ] recreational landowners to limit their liability in the event that they choose to open their lands to the public for recreational purposes without charge"). That much is uncontested. What is contested is precisely who is entitled to make such a "trade" and under what circumstances.

An "owner" means "the possessor of any interest in any land, including but not limited to possession of a fee title." ORS 105.672(4). "Land" refers to "all real property, whether publicly or privately owned." ORS 105.672(3). "Recreational purposes" include, but are not limited to,

"outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, water skiing, winter sports, viewing or enjoying historical, archeological, scenic or scientific sites or volunteering for any public purpose project."

ORS 105.672(5).

The applicability of the statutory immunity is further described in ORS 105.688, which provides, in part, that, subject to exceptions not pertinent to this case,

"the immunities provided by ORS 105.682 apply to:

"(a) All public and private lands, including but not limited to lands adjacent to 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 lands described in paragraph (a) of this subsection; and

"(c) All machinery or equipment on the lands described in paragraph (a) of this subsection."

In this case, the undisputed evidence shows that defendant is the "owner" of Burlingham Park, which is "land" within the meaning of the statute. The undisputed evidence also shows that defendant permits members of the public to use the park for "recreational purposes." Burlingham Park is, indeed, specifically designed for public recreation. Plaintiff's injury arose out of her use of Burlingham Park for recreational purposes. It necessarily follows that, under ORS 105.682, defendant is immune from liability for that injury.

Plaintiff insists that the statute does not apply to land such as Burlingham Park precisely because it is "intended principally for recreational use." According to plaintiff, the legislature intended that ORS 105.682 apply only to property that is rural and undeveloped, not to urban parks. Plaintiff arrives at that conclusion based on her reading of the definition of the recreational activities that trigger the statute's applicability. She reasons that, because all of the activities necessarily involve the use of rural, undeveloped land, it is apparent that the legislature intended immunity to apply only to the recreational use of rural land.

The problem with that argument lies with its premise, namely, that all of the activities listed in the statutory definition of "recreational purposes" necessarily involve the use of rural, undeveloped land. Among other things, the statute lists "swimming, boating, * * * picnicking, hiking, nature study, outdoor educational activities, * * * viewing or enjoying historical, archeological, scenic, or scientific sites or volunteering for any public purpose project," ORS 105.672(5), all of which activities commonly may be accomplished in urban parks.²

Plaintiff also contends that a legislative intention to limit immunity to owners of rural, undeveloped property may be inferred from what the statute does not say: "[E]xamination [of] text and context reveals no intent to extend immunity to city parks developed specifically for recreational purposes." In other words, plaintiff argues that, because the statute does not specifically mention city parks, we should conclude that the legislature did not intend the statute to apply to city parks. Similarly, plaintiff examines the legislative history and, finding "no mention of relieving municipalities from liability for negligence for playground injuries," argues that "[t]he statutes should not be so extended."

We find plaintiff's argument unpersuasive. As we have noted on a number of occasions, arguments based on what the legislature did not say, either in the text of a statute or in its legislative history, are always tricky. State v. Young, 196 Or.App. 708, 713, ___ P.3d ___ (2004) ("The committee's silence is notable only if what it did say purported to be a complete statement of its intentions.") (Emphasis in original.); Kerr v. Bradbury, 193 Or.App. 304, 323, 89 P.3d 1227, rev. allowed, 337 Or. 282, 96 P.3d 347 (2004) (reasoning from silence "is at best risky and, at worst, illogical"). In this case, for example, the legislature could have said nothing specifically about municipal parks because it enacted language broad enough to make such specificity unnecessary.

That certainly seems to be the case here, where the legislature enacted a statute that affords immunity to "the possessor of any interest in any land," ORS 105.672(4) — including "all real property, whether publicly or privately owned," ORS 105.672(3) — if that land is opened to the public for recreational use. ORS 105.682. The legislature actually repeated the point, emphasizing in ORS 105.688 that "the immunities provided by ORS 105.682 apply to * * * [a]ll public and private lands." If the statutes mean what they say, there would be no reason for the legislature to spell out...