The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILY JOHNSON, No. 13-35087
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-00432-AC
SCOTT GIBSON; ORDER CERTIFYING
ROBERT STILLSON, QUESTIONS TO THE
Defendants-Appellees. OREGON SUPREME COURT
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted
March 4, 2015—Portland, Oregon
Filed April 21, 2015
Before: Raymond C. Fisher, Richard A. Paez
and Sandra S. Ikuta, Circuit Judges.
2 JOHNSON V. GIBSON
SUMMARY*
Certification to Oregon Supreme Court
The panel certified two questions to the Supreme Court of
Oregon:
1. Whether individual employees responsible
for repairing, maintaining and operating
improvements on City-owned recreational
land made available to the public for
recreational purposes are “owners” of
land, as that term is defined in the Oregon
Public Use of Lands Act, ORS 105.672 to
105.700, and therefore immune from
liability for their negligence?
2. If such employees are “owners” under the
Public Use of Lands Act, whether the Act,
as applied to them, violates the remedy
clause of the Oregon Constitution, Article
I, section 10?
COUNSEL
Thane W. Tienson and Christine N. Moore (argued), Landye
Bennett Blumstein LLP, Portland, Oregon, for Plaintiff-
Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JOHNSON V. GIBSON 3
Harry Auerbach, Chief Deputy City Attorney, Office of City
Attorney, Portland, Oregon, for Defendants-Appellees.
ORDER
Pursuant to the parties’ joint motion, we certify two
questions to the Oregon Supreme Court. Plaintiff Emily
Johnson filed this state law negligence action against Scott
Gibson and Robert Stillson, two park maintenance employees
of the City of Portland, after she fell and was injured while
jogging in Portland’s Tom McCall Waterfront Park. This
appeal raises two questions that may be determinative of
Johnson’s cause of action: (1) whether city maintenance
workers are “owners” of the park and hence entitled to
immunity under the Oregon Public Use of Lands Act, ORS
105.672 to 105.700; and (2), if so, whether the Public Use of
Lands Act violates the remedy clause, Art. I, section 10, of
the Oregon Constitution. Because it appears to this court that
there is no controlling precedent on these questions in the
decisions of the Oregon Supreme Court and the Oregon Court
of Appeals, we respectfully certify them to the Oregon
Supreme Court.
I. Factual and Procedural History
The following facts are undisputed. See W. Helicopter
Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 364–65,
811 P.2d 627, 630 (1991). Waterfront Park is owned by the
City of Portland and maintained through the City’s Parks and
Recreation Bureau. It is generally open to the public for
recreational use.
4 JOHNSON V. GIBSON
At all relevant times, defendant Scott Gibson was an
employee of the City, employed as a park technician for the
Parks and Recreation Bureau. As part of his duties, Gibson
repaired and performed maintenance in City parks, including
Waterfront Park. Waterfront Park was Gibson’s primary
responsibility. On July 15, 2009, while working at
Waterfront Park, Gibson noticed a broken sprinkler head
located near the Salmon Springs Fountain. To diagnose the
problem with the sprinkler, Gibson dug a hole approximately
a foot deep and 18 inches wide. After determining that the
sprinkler head would have to be replaced with a part he did
not have in stock at the location, Gibson placed a single cone
on top of the sprinkler head to serve as a warning and left the
site. At the time, Gibson expected to return with a
replacement part the next day, but he did not do so. Gibson
would have used a more permanent barricade to mark the
hole if he had anticipated the delay in completing the repair.
At all relevant times, defendant Robert Stillson was an
employee of the City working as a maintenance supervisor
with the Parks and Recreation Bureau. As part of his duties,
Stillson supervised a crew of park maintenance workers,
including Gibson. Stillson testified that workers had three
means for securing a temporary hole – a cone, a piece of
plywood to cover the hole and a barricade, such as a
sawhorse. He testified that the hole created by Gibson should
have been marked at least by a cone. Stillson provided his
employees no formal training about how best to mark a
hazard like the one Gibson created on July 15.
In the middle of the day on July 16, 2009, plaintiff Emily
Johnson was jogging in Waterfront Park when she stepped in
the hole that Gibson had created and fell. The hole was not
marked, by a cone or otherwise, at the time of Johnson’s
JOHNSON V. GIBSON 5
accident. Johnson alleges she suffered a severe and
permanent disabling injury from the fall.
In April 2011, Johnson filed a civil complaint against
Gibson and Stillson in the United States District Court for the
District of Oregon. Her complaint asserts a single claim of
negligence under Oregon law. Federal jurisdiction arises
from the parties’ diversity of citizenship. See 28 U.S.C.
§ 1332.
In April 2012, the defendants moved for summary
judgment under Rule 56 of the Federal Rules of Civil
Procedure. They argued they were immune from liability for
Johnson’s state negligence claim under the Public Use of
Lands Act, ORS 105.672 to 105.700. That Act provides
immunity from negligence liability to an “owner” that makes
its land available to the public for recreational use:
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.
ORS 105.682(1) (2009). It further defines an “owner” as “the
possessor of any interest in any land, including but not
limited to possession of a fee title. ‘Owner’ includes a tenant,
lessee, occupant or other person in possession of the land.”
ORS 105.672(4) (2009).
6 JOHNSON V. GIBSON
The defendants argued they were “owners” of Waterfront
Park for purposes of the Public Use of Lands Act because
they were “responsible for the maintenance, repair and
operation of Waterfront Park.” In making this argument, they
relied on two decisions by the Oregon Court of Appeals.
In the first of these decisions, Denton v. L.W. Vail Co.,
23 Or. App. 28, 541 P.2d 511 (1975), the plaintiff was injured
on land owned by the federal Bureau of Land Management
(BLM) when he rode his motorcycle into a barbed wire fence
stretched across a new section of highway that was under
construction. See id. at 30, 541 P.2d at 512. The plaintiff
brought a negligence action against the state Department of
Transportation, the L.W. Vail Co. (the construction
contractor), and the Peters and Wood Company (the
subcontractor doing the grading work), alleging they were
negligent in placing strands of barbed wire across the road
knowing that it was used by vehicular traffic and without
posting warnings. See id. at 31, 541 P.2d at 512–13. The
court held that the defendant contractors were “persons in
possession of the land,” and hence were immune under the
Public Use of Lands Act. Id. at 37, 541 P.2d at 515.
In the second of these decisions, Brewer v. Department of
Fish & Wildlife, 167 Or. App. 173, 2 P.3d 418 (2000), a
mother and daughter died while swimming in a creek below
a fish migration dam owned and maintained by various
defendants. See id. at 176, 2 P.3d at 420. The plaintiffs filed
a wrongful death action against numerous state agencies and
the Swackhammer Ditch Improvement District, alleging that
the defendants were negligent because the dam was built in
such a manner that it created a dangerous undertow. See id.
at 176, 2 P.3d at 420–21. Relying on Denton, the court held
that two of the defendants – the Oregon Department of Fish
JOHNSON V. GIBSON 7
and Wildlife (ODFW) and the Swackhammer Ditch
Improvement District – were “owners,” and hence entitled to
immunity, under the Public Use of Lands Act because they
maintained and operated the dam:
In Denton, we found that those who were
constructing improvements on land were
“owners” within the meaning of the definition
found in the Act. If those who merely
construct improvements on land qualify as
owners, certainly those who maintain and
operate improvements on land also fall within
the scope of that definition. The trial court
correctly concluded that ODFW and
Swackhammer come within the ambit of the
Act for purposes of immunity.
Id. at 179, 2 P.3d at 422.
The defendants here contended that Denton and especially
Brewer were controlling on the issue of immunity. They
argued they were entitled to immunity because, “[a]s Brewer
makes clear, those who maintain and operate improvements
on the land fall within the definition of ‘owners’ for purposes
of the Public Use of Lands Act.”
The defendants also maintained that granting them
immunity under the Public Use of Lands Act would not
violate the remedy clause of the Oregon Constitution. That
clause states that “every man shall have remedy by due
course of law for injury done him in his person, property, or
reputation,” Or. Const. art. I, § 10, and is designed to preserve
common law rights of action that existed when the Oregon
8 JOHNSON V. GIBSON
Constitution was adopted in 1857. See Howell v. Boyle,
353 Or. 359, 369–70, 298 P.3d 1, 6–7 (2013).
The defendants’ remedy clause argument once again
relied on Brewer. After reviewing Oregon case law, Brewer
concluded that the state legislature could abolish a common
law right of action that existed in 1857 so long as the
legislative enactment provided a countervailing benefit to
those deprived of their common law cause of action. The
court explained that
the Oregon Supreme Court’s case law appears
to recognize the legislature’s ability to strike
some sort of balance between competing
interests by redefining rights, including rights
of action, even when such a redefinition alters
or abolishes a remedy under some
circumstances. The key would appear to be
that there indeed has to be some sort of
“balance,” or legitimate trade-off, involved.
Brewer, 167 Or. App. at 189–90, 2 P.3d at 428. The court
held that the Public Use of Lands Act represented a
permissible exercise of legislative authority under this
detriment/benefit calculus:
The trade-off represented by this policy is
manifest. The owner of land opened for
recreational use in accordance with the Act
gives up exclusive enjoyment of the land and,
in return, is insulated from certain types of
liability for injuries that may occur there. The
users of recreational lands opened in
accordance with the Act give up their rights to
JOHNSON V. GIBSON 9
sue land owners for certain types of injuries
but gain the benefit of using land for
recreation that otherwise would not be
available to them.
Id. at 188–89, 2 P.3d at 427. The court held that the Act
“strikes an acceptable balance, by conferring certain benefits
and certain detriments on both the landowners involved, and
on the recreational users of that land,” and therefore “does not
violate Article I, section 10, of the Oregon Constitution.” Id.
at 190–91, 2 P.3d at 428.
In opposing summary judgment, Johnson contested both
prongs of the defendants’ arguments. First, she disputed the
defendants’ contention that they were “owners” under the
Public Use of Lands Act. She maintained that the City of
Portland was the sole owner of Waterfront Park. She argued
that Denton and Brewer were distinguishable because they
involved entity defendants rather than individuals, and
because the defendants in Denton and Brewer exercised
greater control over the premises than Stillson and Gibson did
here. And she argued that treating Stillson and Gibson as
“owners” of the park was contrary to the plain meaning of the
statute.
Second, Johnson argued that, if the defendants were
entitled to immunity under the Public Use of Lands Act, then
that law, as applied to this case, would violate the remedy
clause. She acknowledged Brewer’s holding, but argued that
Brewer was abrogated by the Oregon Supreme Court’s
subsequent decision in Smothers v. Gresham Transfer, Inc.,
332 Or. 83, 23 P.3d 333 (2001). Smothers “engaged in a
wholesale reevaluation of [the court’s] remedy clause
jurisprudence . . . and established a new method of analysis
10 JOHNSON V. GIBSON
of claims arising under it.” Howell, 353 Or. at 369, 298 P.3d
at 6. Under this new method of analysis:
in analyzing a claim under the remedy clause,
the first question is whether the plaintiff has
alleged an injury to one of the absolute rights
that Article I, section 10 protects. Stated
differently, when the drafters wrote the
Oregon Constitution in 1857, did the common
law of Oregon recognize a cause of action for
the alleged injury? If the answer to that
question is yes, and if the legislature has
abolished the common-law cause of action for
injury to rights that are protected by the
remedy clause, then the second question is
whether it has provided a constitutionally
adequate substitute remedy for the
common-law cause of action for that injury.
Smothers, 332 Or. at 124, 23 P.3d at 356–57. Smothers also
expressly rejected Brewer’s understanding that the legislature
could altogether abolish a cause of action that existed at
common law without providing a substitute remedy,
“disavow[ing]” the court’s holdings “that the legislature can
abolish or alter absolute rights respecting person, property, or
reputation that existed when the Oregon Constitution was
drafted without violating the remedy clause.” Id. at 119,
23 P.3d at 353.
The district court rejected Johnson’s contentions, found
the defendants’ arguments persuasive and granted the
defendants’ motion for summary judgment. See Johnson v.
Gibson, 918 F. Supp. 2d 1075 (D. Or. 2013). It first held that
Stillson and Gibson were “owners” for purposes of the Public
JOHNSON V. GIBSON 11
Use of Lands Act because they “were responsible for the
maintenance and/or repair of the sprinkler system in the
Park.” Id. at 1085. In the district court’s view, this placed
the defendants “in the same position as Swackhammer, who
maintained and operated the dam” in Brewer. Id.
The court also agreed with the defendants that granting
them immunity under the Public Use of Lands Act would not
violate the remedy clause of the Oregon Constitution. See id.
at 1086–88. The court concluded that Brewer was directly on
point and, significantly, that Brewer remained good law.
With respect to the latter holding, the court recognized that
Brewer and Smothers were in some tension. It also
recognized that the Oregon Court of Appeals, in Schlesinger
v. City of Portland, 200 Or. App. 593, 600 n.4, 116 P.3d 239,
243–44 n.4 (2005), had called Brewer’s continuing validity
into question. See Johnson, 918 F. Supp. 2d at 1086–87. The
court concluded, however, that Brewer retained its
precedential value because the Oregon Supreme Court had
not specifically disavowed Brewer in subsequent decisions
and had denied review in Brewer itself, even after Smothers
was decided. The court reasoned:
Had the Supreme Court been concerned about
the ultimate rulings in Brewer, including the
detriment/benefit calculus applied to
Swackhammer to support the finding that the
Act, as applied to a private landowner, did not
violate the [Remedy Clause], it clearly could
have addressed those rulings in Smothers or
Storm [v. McClung, 334 Or. 210, 47 P.3d 476
(2002)] or by granting review in the appeal of
Brewer. The fact that the Oregon Supreme
Court has seen fit to allow the rulings in
12 JOHNSON V. GIBSON
Brewer to remain unquestioned in at least two
cases in which it expressed concern with some
of the tangential issues addressed in Brewer,
and denied review of the ultimate rulings in
Brewer after discussing the Remedy Clause in
detail, supports a conclusion that the
detriment/benefit calculus on which the
Brewer court relied in finding that the
application of the Act to a private landowner
does not violate the Remedy Clause is still
good law.
Id. at 1088.
Johnson timely appealed the adverse judgment, and in
January 2014, the parties filed a joint motion to certify two
questions to the Oregon Supreme Court:
1. Whether individual employees responsible
for repairing, maintaining, and operating
improvements on City-owned recreational
land made available to the public for
recreational purposes can each properly be
considered an “owner” of land, as that
term is defined in the Oregon Public Use
of Lands Act, Oregon Revised Statutes
§§ 105.672 to 105.696, and therefore
immune from actions against them for
their own negligence?
2. If employees can be considered to be
“owners” under the Public Use of Lands
Act, does the Act, as applied to them[,]
JOHNSON V. GIBSON 13
violate the Remedy Clause of the Oregon
Constitution, Article I, section 10?
The parties argued that “[t]his case raises important questions
of Oregon statutory and constitutional law that are unresolved
by previous decisions of the Supreme Court or intermediate
appellate courts of Oregon” and “determinative of the case
before this Court.” They asserted that “[t]his case reduces to
the issues left unresolved in Schlesinger, namely whether the
Oregon Court of Appeals was correct in its holdings in
Brewer, that the Recreational Use of Lands Statute
immunizes those who maintain the land on behalf of the
owner, and that the Oregon Constitution permits it to do so.”
II. Grounds for Certification
Under Oregon law:
The Supreme Court may answer questions of
law certified to it by the Supreme Court of the
United States, a Court of Appeals of the
United States, a United States District Court,
a panel of the Bankruptcy Appellate Panel
Service or the highest appellate court or the
intermediate appellate court of any other state,
when requested by the certifying court if there
are involved in any proceedings before it
questions of law of this state which may be
determinative of the cause then pending in the
certifying court and as to which it appears to
the certifying court there is no controlling
precedent in the decisions of the Supreme
Court and the intermediate appellate courts of
this state.
14 JOHNSON V. GIBSON
ORS 28.200. See W. Helicopter Servs., 311 Or. at 364,
811 P.2d at 630; Fields v. Legacy Health Sys., 413 F.3d 943,
958 (9th Cir. 2005). We conclude that this standard is
satisfied here.
First, we are aware of no controlling precedent addressing
whether an individual employee responsible for repairing,
maintaining and operating improvements on City-owned
recreational land made available to the public for recreational
purposes can properly be considered an “owner” of land as
that term is defined in the Oregon Public Use of Lands Act.
Brewer held that “those who maintain and operate
improvements on land . . . fall within the scope of [the
statutory] definition” of owner. 167 Or. App. at 179, 2 P.3d
at 422. The defendants here, however, may not be
comparable to the Swackhammer Ditch Improvement
District. They are individual city employees, not an entity,
and they may not exercise the same degree of control over the
park that Swackhammer exercised over the dam. Under
Oregon law, moreover, “there is no more persuasive evidence
of the intent of the legislature than the words by which the
legislature undertook to give expression to its wishes.” State
v. Gaines, 346 Or. 160, 171, 206 P.3d 1042, 1050 (2009)
(internal quotation marks omitted). Thus, the first step in
interpreting a statute is “an examination of text and context.”
Id. Here, neither the Oregon Supreme Court nor the Oregon
Court of Appeals has carefully examined the operative words
of ORS 105.672(4) – “owner,” “occupant” and “person in
possession” – or applied them to a city maintenance worker.
Second, we likewise are aware of no controlling
precedent addressing whether the Public Use of Lands Act
violates the remedy clause of the Oregon Constitution as
applied to the owners of public land. Although Brewer is on
JOHNSON V. GIBSON 15
point, neither the Oregon Supreme Court nor the Oregon
Court of Appeals has yet addressed whether Brewer has been
abrogated by Smothers. Schlesinger called Brewer into
question without deciding the issue. The Oregon Supreme
Court denied review in Brewer, but this is not dispositive.
See 1000 Friends of Or. v. Bd. of Cnty. Comm’rs, Benton
Cnty., 284 Or. 41, 45, 584 P.2d 1371, 1373 (1978)
(explaining that denial of review by the Oregon Supreme
Court “may not be taken as expressing even a slight sign that
this court approves the decision or the opinion of the Court of
Appeals”); accord In re Marriage of Bolte, 349 Or. 289, 294,
243 P.3d 1187, 1189 (2010) (“[A] denial of review carries no
implication that the decision or the opinion of the Court of
Appeals was correct.” (quoting 1000 Friends of Oregon,
284 Or. at 44, 584 P.2d at 1372)). Another Oregon Court of
Appeals decision applied Brewer, but was later reversed on
other grounds, and thus does not constitute controlling
precedent on the continuing validity of Brewer. See Liberty
v. State, Dep’t of Transp., 200 Or. App. 607, 619–20,
116 P.3d 902, 909, opinion adhered to as modified on
reconsideration, 202 Or. App. 355, 122 P.3d 95 (2005), and
rev’d, 342 Or. 11, 148 P.3d 909 (2006). Accordingly,
certification is appropriate to determine whether Brewer
remains good law and, if not, whether the Public Use of
Lands Act violates the remedy clause of the Oregon
Constitution as applied to Johnson’s claim.
III. Questions Certified
We respectfully certify the following questions to the
Oregon Supreme Court:
1. Whether individual employees responsible
for repairing, maintaining and operating
16 JOHNSON V. GIBSON
improvements on City-owned recreational
land made available to the public for
recreational purposes are “owners” of
land, as that term is defined in the Oregon
Public Use of Lands Act, ORS 105.672 to
105.700, and therefore immune from
liability for their negligence?
2. If such employees are “owners” under the
Public Use of Lands Act, whether the Act,
as applied to them, violates the remedy
clause of the Oregon Constitution, Article
I, section 10?
We respectfully ask the Oregon Supreme Court to
exercise its discretionary authority to accept and decide these
questions. Our phrasing of the questions should not restrict
the court’s consideration of the issues involved. The court
may reformulate the relevant state law questions as it
perceives them to be, in light of the contentions of the parties.
See Howell v. Boyle, 673 F.3d 1054, 1058 (9th Cir. 2011); W.
Helicopter Servs., 311 Or. at 370–71, 811 P.2d at 633–34.
We agree to abide by the decision of the Oregon Supreme
Court. If the court decides that the questions presented are
inappropriate for certification, or if it declines the
certification for any other reason, we request that it so state,
and we will resolve the question according to our best
understanding of Oregon law.
The Clerk of this court shall file a certified copy of this
order with the Oregon Supreme Court under ORS 28.215.
This appeal is withdrawn from submission and will be
submitted following receipt of the Oregon Supreme Court’s
opinion on the certified questions or notification that it
JOHNSON V. GIBSON 17
declines to answer the certified questions. The panel shall
retain jurisdiction over further proceedings in this court. The
parties shall notify the Clerk of this court within one week
after the Oregon Supreme Court accepts or rejects
certification. In the event the Oregon Supreme Court grants
certification, the parties shall notify the Clerk within one
week after the court renders its opinion.
CERTIFICATION REQUESTED; SUBMISSION
VACATED.
_____________________________
Richard A. Paez
United States Circuit Judge, Presiding