What is Recreational Immunity?
Recreational Immunity describes a type of law that encourages property owners to open their lands to the public for recreational use by protecting the landowner if a user seeks damages after an unfortunate injury. Recreational immunity is vital to public land owners and parks providers, as well as land trusts and private landowners who open their lands to the public through trail easements, access, or other allowances.
Access to nature and outdoor recreation provides countless benefits to individuals and communities. However, the earth is dynamic. It presents constantly changing outdoor environments. We acknowledge that there are inherent risks of injury when we choose to enter into those environments. Without recreational immunity, landowners are faced with the choice to close off these important access points. Oregon has (had) a statute that provided this immunity. ORS 105.682. Washington has a similar statute. As does California, Idaho, all of our neighbors, and beyond.
What happened in Oregon?
If Oregon has a recreational immunity statute, what’s the problem?
In Fields v. Newport, a woman slipped on a wooden footbridge on an improved trail accessing a beach, and filed a lawsuit against the City of Newport. She alleged the City was negligent in maintaining the bridge and not putting up warning signs. Newport responded that it was immune from suit because the plaintiff was using the Ocean to Bay Trail for a recreational purpose. The trial court agreed with the City, ruling that recreational immunity protects landowners from a lawsuit when they open their property to the public for recreational purposes without a fee.
The plaintiff appealed the trial court’s ruling, arguing that the trial court could not conclude that her “principal purpose” (as required under state law) was recreational. The Court of Appeals held that the trial court needed to hold a jury trial to determine whether the plaintiff’s principal purpose on the trail was recreational. On October 5, 2023, the Oregon Supreme Court officially declined to review the Court of Appeals’ decision. This action, called “review denied” upholds the Oregon Court of Appeals’ decision striking down recreational immunity for paths to recreational areas.
The Consequences
In November 2023, CityCounty Insurance Services issued a memo advising local governments to close improved trails that provide access to recreation areas, “particularly trails, walkways and stairs used to access bodies of water, such as the ocean, lakes, rivers, streams and reservoirs” and to “consider closing unimproved trails, because the subjective intent of the user can now nullify recreational immunity. This means if someone becomes injured -even on an unimproved trail-, the city or county may find itself facing a costly jury trial to determine the injured person’s intent in using the trail.” And who ultimately pays those costs? Tax Paying Oregonians.
Some local governments have proceeded to begin closing trails, and other land managers are scrambling to decide how to address this new level of liability. This means that Oregonian’s have lost access to some of their most treasured recreational spaces, with more closures imminent.
If you would like to learn more about the 2023 Changes to Recreational Immunity & Liability, please read this FAQ from CIS.
The Solution
The recreation community agrees with Oregon’s land trusts, cities, counties, and park districts that the solution required by current circumstances is a legislative fix during the 2024 legislative session. Until 2023 we held ourselves to the same balanced approach that all of our neighboring states still adhere to. We must restore recreational immunity to Oregon.
POR is actively working with our partners across Oregon to bring attention to the issue and encourage lawmakers to Protect Oregon Recreation by restoring recreational immunity with new language that provides clear protections for land managers who open their lands for public use.
Media outlets are reporting on the emergency as well.
01.08.2024 updated OPB story here.
We urge you to support this bipartisan effort. Please join us to Protect Oregon Recreation.
