Premises Liability Case – Recreational Use Statute

The Oregon Supreme Court has ruled that  a state recreational use statute does not bar a claim by a plaintiff who was injured while crossing the defendant’s land after engaging in recreational activity on an adjacent property.

The facts:  "Plaintiffs and their families drove on Highway 6 to a paved turnout along the highway near the "Fisherman’s Bridge" area of the Wilson River. Plaintiffs parked their cars in the turnout area and walked along an asphalt path that is parallel to the roadway and between the road’s guardrail and a chain link fence. On the other side of the fence is a steep slope. The asphalt path and the underlying land is owned by defendant, the State of Oregon Department of Transportation. Plaintiffs and their families used the path to gain access to a footbridge that crosses the river to a riverside beach area owned by Willamette Industries and Kenneth Fan Rad. Willamette and Rad had opened the beach area to the public for recreational purposes. After swimming and relaxing at the beach area, plaintiffs re-crossed the footbridge and used the path owned by defendant to return to their cars. While walking on that path, the asphalt under plaintiffs’ feet crumbled and plaintiffs slid under the fence and down the steep slope approximately 40 feet, sustaining injuries."

An Oregon statute provides that, subject to several exceptions, "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, 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, woodcutting or the harvest of special forest products. …"

The Oregon Supreme Court reversed a dismissal of the case and said as follows:

"We therefore disagree with defendant and the Court of Appeals that "recreational purposes" includes crossing one land parcel to gain access to another land parcel on which one will engage in a recreational activity such as swimming. The definition in Webster’s of "purpose" as an "object" or "aim" is one common meaning of the word, but that meaning does not answer the dispositive question in this case — it simply removes it one step. Although it is apparent that plaintiffs’ ultimate "aim" or "object" in walking on the path was to swim — a recreational activity listed in ORS 105.672(5) — that conclusion only leads to a further question, "What was plaintiffs’ purpose, aim, or object in entering defendant’s land, which was not where the recreation was to take place?" Based on our analysis of the statute and the summary judgment record, we agree with plaintiffs that the "purpose" of plaintiffs’ crossing of defendant’s land was to travel to the land on which plaintiffs would engage in recreation. The activity of crossing a parcel of land, by itself, is not a recreational purpose. For that reason, we hold that ORS 105.682 does not grant immunity to defendant. "

The case is Liberty v. State,  SC S53232 (Or. S. C. November 24, 2006).  Read it  here.

Tennessee’s recreational use statute may be found at T.C.A. Sec. 70-7-101 et seq.  The Court of Appeals ruled a little over one year ago that the statute barred a claim from someone who was injured while walking on State of Tennessee land on the way to a recreational event on that land.  Matthews v. State,  2005 WL 3479318 (Tenn. Ct. App. Dec. 19, 2005).