Fields v. City of Newport

764 July 6, 2023 No. 344

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Nicole FIELDS,

an individual,

Plaintiff-Appellant,

v.

CITY OF NEWPORT,

an Oregon municipal corporation;

Spencer Nebel, an individual; and

James Guenther, an individual,

Defendants-Respondents.

Lincoln County Circuit Court

20CV33573; A177242

Marcia L. Buckley, Judge.

Argued and submitted November 16, 2022.

Jennifer L. Hunking argued the cause and filed the briefs

for appellant.

Elizabeth A. Jones argued the cause for respondents.

Also on the brief was Kenneth S. Montoya.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

Reversed and remanded.

Cite as 326 Or App 764 (2023) 765

766 Fields v. City of Newport

MOONEY, J.

Plaintiff sustained injuries when she slipped

and fell on land owned by the City of Newport (the city).

Specifically, she fell on a wooden bridge that is a part of

the city’s “Ocean to Bay Trail” (the trail). She appeals from

a judgment dismissing her personal injury claim against

the city after the trial court granted summary judgment

in favor of the city on its recreational immunity defense.

Plaintiff assigns error to that ruling.1 She argues first that

there are issues of material fact concerning her use of the

city’s land, and that when the evidence is viewed in the light

most favorable to her, a jury could conclude that her pur-

pose was not principally recreational, and that her injuries

did not arise out of the recreational use of the city’s land,

defeating the city’s recreational immunity defense. She

argues second that ORS 105.688(1)(c) extends recreational

immunity only to unimproved access trails, and because the

city improved, designed, and maintained the trail for the

purpose of accessing the beach, the city is not entitled to

recreational immunity. We agree that issues of material fact

exist about plaintiff’s use of the trail and that the city was

not entitled to prevail on its recreational immunity defense

as a matter of law. We also agree that the Ocean to Bay

Trail is not an unimproved access trail entitled to immunity

under ORS 105.688(1)(c). But whether recreational immu-

nity otherwise applies to the trail as land adjacent to the

ocean shore under ORS 105.688(1)(a) depends on plaintiff’s

purpose in using the land and material issues of fact exist

on that question.2 We reverse and remand.

I. STANDARD OF REVIEW

This is a civil case, and the parties have the right

to a jury trial. Or Const, Art I, § 17. A party against whom a

1

We reject without further discussion the city’s argument that plaintiff’s

assignment of error directed to the trial court’s granting of the city’s summary

judgment motion is ambiguous and, therefore, out of compliance with ORAP

5.45(2) and (3). The assignment of error is, in fact, in compliance with ORAP

5.45(2) and (3).

2

We conclude that to the extent the parties argue about plaintiff’s knowl-

edge of the slippery condition and about the city’s duty of care with respect to

plaintiff, genuine issues of material fact remain with respect to plaintiff’s negli-

gence claim.

Cite as 326 Or App 764 (2023) 767

claim is asserted may nevertheless move for summary judg-

ment, but such a motion may be granted only when there is

no genuine issue of material fact, and the moving party is

entitled to prevail as a matter of law. ORCP 47 C. To avoid

summary judgment, the nonmoving party has the burden to

produce evidence on any issue raised by the moving party in

its motion as to which the nonmoving party would have the

burden of persuasion at trial. F. T. v. West Linn-Wilsonville

School Dist., 318 Or App 692, 694, 509 P3d 655, rev den, 370

Or 471 (2022). But the city asserts recreational immunity

as an affirmative defense on which it would have the bur-

den of persuasion at trial and, therefore, it bears the bur-

den on its summary judgment motion. We view the facts in

the light most favorable to the nonmoving party, plaintiff,

and we review the trial court’s decision to grant summary

judgment in the city’s favor, including its construction of the

recreational immunity statutes, for legal error. Stedman v.

Dept. of Forestry, 316 Or App 203, 204, 502 P3d 234 (2021).

We draw the pertinent facts from the record that was before

the trial court when it ruled on the summary judgment

motion, and we state them in accordance with our standard

of review.

II. THE FACTS

Plaintiff fell while she was walking home from the

beach on the trail that she used to get to and from Agate

Beach. The trail is adjacent to Agate Beach, an ocean shore.

The city improved and now maintains the trail, which con-

sists of a series of connected walking surfaces, including

existing city sidewalks, packed gravel pathways, and wooden

bridges and boardwalks. The day she was injured, plaintiff

had walked on the path with her dogs and a friend in order

to reach Agate Beach, as she had done on other occasions.

Plaintiff and her friend socialized as they walked along the

trail going to and from the beach. Once there, they recreated

on the beach for a couple hours before beginning their walk

back home on the same trail. As they did so, they reached

a part of the trail that consisted of a wooden bridge, and as

plaintiff put her foot down on it, she noticed that the bridge

was slippery. Plaintiff immediately warned her friend that

the bridge was slippery, and then promptly fell. As a result

of the fall, plaintiff sustained a comminuted left distal tibia

768 Fields v. City of Newport

open shaft fracture and a comminuted fibular fracture. In

other words, her left leg was badly broken beneath the knee.

Members of the rescue team also fell “where [plaintiff] had

fallen” when they arrived, and they had difficulty getting

their all-terrain vehicle (ATV) to her because “[t]he tires

couldn’t get enough traction to go up the incline[ ]” of the

wooden bridge. The tires “would just slip.”

III. RECREATIONAL IMMUNITY

We begin with a brief discussion of recreational

immunity. The public policy underlying recreational immu-

nity is set forth in ORS 105.676:

“[I]t 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 * * *.”

We addressed that policy statement and related legislative

history in Landis v. Limbaugh, 282 Or App 284, 292-94, 385

P3d 1139 (2016), rev dismissed, 361 Or 351 (2017). We will

not repeat the details of that here, other than to highlight

that recreational immunity was established by the legisla-

ture as a “quid pro quo” policy. Id. at 294. Quid pro quo is

a Latin term that means “something given or received for

something else.” Webster’s Third New Int’l Dictionary 1865

(unabridged ed 2002). ORS 105.682 essentially “confers lim-

ited immunity on landowners that permit others to use their

land for ‘recreational purposes.’ ” Kelly v. Hochberg, 349 Or

267, 274, 243 P3d 62 (2010). The state confers limited immu-

nity in exchange for the public’s recreational use of land.

There are two fundamental determinants that “give

rise to recreational immunity”: “the landowners’ permis-

sion to use and the public’s use[.]” Coleman v. Oregon Parks

and Recreation Dept., 347 Or 94, 101, 217 P3d 651 (2009).

The landowner’s permission to use must be without charge,

id. at 96, and the public’s use must be primarily for recre-

ation, ORS 105.682(1).

IV. THE KEY STATUTORY PROVISIONS

ORS 105.682(1) is the source of recreational immu-

nity, and it provides, as pertinent:

Cite as 326 Or App 764 (2023) 769

“* * * [S]ubject to the provisions of ORS 105.688, an owner of

land is not liable in contract or tort for any personal injury

* * * that arises out of the use of the land for recreational

purposes * * * when the owner of land * * * permits any per-

son to use the land for recreational purposes * * *. The lim-

itation on liability provided by this section applies if the

principal purpose for entry upon the land is for recreational

purposes * * * and is not affected if the injury * * * occurs

while the person entering land is engaging in activities

other than the use of the land for recreational purposes[.]”

ORS 105.672(5) provides a nonexhaustive list of

activities that qualify as recreational:

“ ‘Recreational purposes’ includes, but is not limited

to, outdoor activities such as hunting, fishing, swimming,

boating, camping, picnicking, hiking, nature study, outdoor

educational activities, waterskiing, winter sports, viewing

or enjoying historical, archaeological, scenic or scientific

sites or volunteering for any public purpose project.”

The immunity conferred by ORS 105.682(1) is made

expressly “subject to the provisions of ORS 105.688,” which

provides:

“Except as specifically provided in ORS 105.672 to

105.696, the immunities provided by ORS 105.682 apply to:

“(a) All land, including but not limited to land adjacent

or contiguous to any bodies of water, watercourses or the

ocean shore as defined by ORS 390.605;

“(b) All roads, bodies of water, watercourses, rights

of way, buildings, fixtures and structures on the land

described in paragraph (a) of this subsection;

“(c) All paths, trails, roads, watercourses and other

rights of way while being used by a person to reach land for

recreational purposes * * * that are on land adjacent to the

land that the person intends to use for recreational pur-

poses * * *, and that have not been improved, designed or

maintained for the specific purpose of providing access for

recreational purposes * * *; and

“(d) All machinery or equipment on the land described

in paragraph (a) of this subsection.”

The parties do not agree on the meaning of “rec-

reational purposes” under ORS 105.682. The city argues

770 Fields v. City of Newport

that plaintiff’s principal purpose in using the trail was

recreational and that the city is, therefore, entitled to rec-

reational immunity from legal liability for her injuries.

Plaintiff argues that she was using the trail primarily to

gain access to Agate Beach. She likens the “activity of cross-

ing a parcel of land, [which] by itself, is not a recreational

purpose[,]” Liberty v. State Dept. of Transportation, 342 Or

11, 22, 148 P3d 909 (2006), to the activity of walking and

argues that because recreation was not her primary pur-

pose on the trail, ORS 105.682(1) simply does not apply and

the city is not entitled to immunity.

The city argues further that ORS 105.688(1)(a)

expressly extends immunity to it because the trail on which

plaintiff was injured is, without dispute, situated on “land

adjacent or contiguous to * * * the ocean shore,” and that

she was using that land for recreational purposes. Plaintiff

counters that ORS 105.688(1)(c) limits ORS 105.688(1)(a) by

applying immunity only to unimproved trails that are adja-

cent to the ocean shore. The city argues that ORS 105.688

(1)(c) does not limit ORS 105.688(1)(a), that subsection (1)

(c) was added to extend immunity to nonrecreational access

trails, and that even if it is not entitled to immunity under

subsection (1)(c), it is entitled to immunity under subsection

(1)(a).

The trial court found that “[p]laintiff was walk-

ing her dog on a trail to the beach with a friend, a recre-

ational purpose,” and that “[t]he provisions of ORS 105.676

(Recreational Use Immunity) apply[ ]” to immunize the city

from any liability to plaintiff for the injuries that she sus-

tained while on the trail.

V. ANALYSIS

We begin with ORS 105.682(1) because that is the

statutory source of recreational immunity. It immunizes

landowners who have made their land available for public

recreational use from liability for any injury that “arises

out of the use of the land for recreational purposes.” ORS

105.682(1). ORS 105.688(1)(a), which further defines the

scope of immunity granted under ORS 105.682, extends that

grant of immunity to “land, including but not limited to land

Cite as 326 Or App 764 (2023) 771

adjacent or contiguous to any bodies of water, watercourses

or the ocean shore[.]” There is no dispute that the city’s trail

qualifies as “land adjacent or contiguous to * * * the ocean

shore.” The focus of the parties’ arguments on summary

judgment centered first on the question of whether there

was evidence that plaintiff’s principal purpose in using

the trail was recreational. At a minimum, for ORS 105.682

and ORS 105.688(1)(a) to apply, there must be evidence that

plaintiff’s injuries arose out of her use of the trail for recre-

ational purposes.

The trial court concluded that plaintiff was using

the city’s trail for a recreational purpose because she was

walking her dogs to the beach with a friend, and therefore,

the city was entitled to recreational immunity. Plaintiff

argues that walking to the beach is not a recreational

purpose within the meaning of the recreational immunity

statutes. The city disagrees and points to plaintiff’s testi-

mony that she and her friend would often “meet up and take

[plaintiff’s] dogs for a walk or go on a hike on the beach” and

that the purpose of such walks was “exercise[,] friendship[,

and] socializing.”

Determining whether there is a genuine issue

about plaintiff’s principal purpose in using the city’s trail

puts the meaning of “recreational purpose” squarely before

us. That, in turn, raises a question of statutory construction

requiring us to turn to the methodology set forth in PGE v.

Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d

1143 (1993), and State v. Gaines, 346 Or 160, 171-72, 206

P3d 1042 (2009). In using that methodology, we review the

text and context of the recreational immunity statutes, as

well as any relevant legislative history and helpful canons

of construction. Hathaway v. B & J Property Investments,

Inc., 325 Or App 648, 654, ___ P3d ___ (2023). Our objective

is to ascertain the meaning of the statutory provisions most

likely intended by the legislature that adopted them. State

v. Cloutier, 351 Or 68, 75, 261 P3d 1234 (2011).

ORS 105.672(5) does not exhaustively define “rec-

reational purposes,” but it does provide a nonexclusive list

of “outdoor activities” that would qualify as such. Plaintiff

notes that “walking” and “dog walking” are not expressly

772 Fields v. City of Newport

included on the list of “recreational purposes.” Hiking is

included, but according to plaintiff, using the trail to get to

the beach is not the same as hiking on the trail. The use of

the nonspecific term “outdoor activities” in ORS 105.672(5)

to describe the term “recreational purposes” along with an

exemplary list of more specific activities such as “hiking,”

leads us to construe that provision to refer only to other,

nonlisted items of the same kind under the principle of ejus-

dem generis. Liberty, 342 Or at 20.

The nonlisted item here, walking, like the non-

listed item in Liberty, crossing parcel A to get to parcel B,

can take place outdoors and, thus, has that trait in com-

mon with the listed activities. The listed activities also

have in common the trait that they “are recreational in and

of themselves.” Id. But walking may or may not be recre-

ational. The term “walk” as a verb commonly means “to

move along on foot: advance by steps” and “to come or go on

foot without hesitation or without ceremony—usually used

with a following adverb or preposition.” Webster’s at 2571

(unabridged ed 2002). “Walk” as a noun generally means

“an act or instance of going on foot especially for exercise or

pleasure” and an “accustomed place of walking.” Id. Thus,

walking can be a mode of conveyance by which one moves

from point A to point B, and walking might also be an activ-

ity that is itself recreational, like taking a walk solely for

the enjoyment of doing so. One might be accompanied by

a dog on either type of walk. Ejusdem generis, as a contex-

tual canon, leads us to conclude that “walking” does not fit

with the list of “recreational purposes” in ORS 105.672(5)

because it may or may not be recreational, depending on the

circumstances.

Given the record before the trial court, viewed in

the light most favorable to plaintiff, there remains an issue

of material fact as to whether plaintiff’s principal purpose

in walking on the city’s trail was recreational or whether

it was simply to go to and from the beach. Plaintiff argues

that, regardless, any immunity to which the city might be

entitled under ORS 105.682 and ORS 105.688(1)(a) is elim-

inated by ORS 105.688(1)(c). In other words, plaintiff reads

subsection (1)(c) as limiting ORS 105.688(1)(a) by applying

Cite as 326 Or App 764 (2023) 773

immunity only to unimproved trails that are adjacent to

the ocean shore, and she reasons that because the trail at

issue here is an improved trail, immunity does not apply.

The city urges that subsection (1)(c) was added to ORS

105.688 to extend immunity to nonrecreational trails, in

direct response to Liberty, and that it should not be read as

reducing the immunity already conferred by ORS 105.682

and ORS 105.688(1)(a). We agree with the city on that

point.

The question whether ORS 105.688(1)(c) limits, or

eliminates, recreational immunity applicable to the city’s

trail again requires us to construe the recreational immu-

nity statutes, and we do so employing the usual method of

statutory construction that we have already described. ORS

105.682(1) expressly subjects recreational immunity to the

provisions of ORS 105.688. ORS 105.688(1)(a) “extend[s] the

immunity conferred by ORS 105.682 to adjacent or contig-

uous land that is used to gain access to waters where the

injured party intended to recreate.” Liberty, 342 Or at 19.

The parties agree that the city’s trail is on land “adjacent or

contiguous to” the ocean shore.

Notwithstanding the broadly inclusive language of

ORS 105.688(1)(a), the Supreme Court held that “crossing

one person’s land to gain access to another person’s land

to recreate there” does not itself constitute a recreational

purpose and, therefore, does not entitle the owner of the

land crossed to immunity under ORS 105.682. Id. It rein-

forced that holding in Kelly, but distinguished the facts from

Liberty, and held that “plaintiff’s ride on the BLM road was

not a means of accessing recreation—the card game—but

rather his activity of riding to collect the cards was part and

parcel of the recreational purpose itself.” 349 Or at 275. The

upshot is that because “[t]he activity of crossing a parcel of

land, by itself, is not a recreational purpose,” Liberty, 342

Or at 21-22, parcels of land so crossed did not qualify under

Liberty for recreational immunity.

The legislature added subsection (1)(c) to ORS

105.688 in 2009 in response to the Supreme Court’s deci-

sion in Liberty, specifically to extend immunity to land-

owners who allow people to cross their land to access other

774 Fields v. City of Newport

land where they plan to recreate. Audio Recording, Senate

Committee on Rules, HB 2003, June 8, 2009, at 2:03 (state-

ment of Rep Judy Stiegler), https://olis.oregonlegislature.gov

(accessed June 12, 2023). Plaintiff does not dispute that, but

she argues that ORS 105.688(1)(c), “operates as an excep-

tion to ORS 105.688(1)(a)” because, by its terms, subsection

(1)(c) extends immunity only to “paths, trails, roads, water-

courses and other rights of way * * * that have not been

improved, designed or maintained for the specific purpose

of providing access for recreational purposes[.]” The city

counters that subsection (1)(c) does not limit the immu-

nity that trail owners already enjoy under subsection (1)(a).

Subsection (1)(c), according to the city, simply extends immu-

nity to nonrecreational trails.

ORS 105.688(1)(c) was the legislature’s answer to

Liberty. It extended immunity to trails and paths used to

reach other land for recreational purposes. In doing so, it

expressly limited its application to trails that “have not been

improved, designed or maintained for the specific purpose

of providing access for recreational purposes.” To simplify,

ORS 105.688(1)(c) extends recreational immunity to own-

ers of unimproved, nonrecreational trails and other rights

of way. The legislative history is devoid of discussion about

why subsection (1)(c) is limited in that way, but the absence

of discussion is not surprising given the clear language of

the provision.

ORS 105.688(1)(c) extends immunity to unim-

proved, nonrecreational access trails that, under Liberty,

would not have qualified for recreational immunity. It is

worth mentioning that limiting the immunity conferred by

ORS 105.688(1)(c) to unimproved land is consistent with the

quid pro quo exchange that justified recreational immunity

in the first place—immunity conferred on the landowner in

exchange for making land available for public recreational

use. Once a landowner affirmatively undertakes to improve

his property, the concepts of reasonable care and foresee-

ability shift, likely increasing the landowner’s correspond-

ing level of responsibility and increasing the value of immu-

nity to that landowner. One might reasonably expect the

legislature to revisit the quid pro quo arrangement when

Cite as 326 Or App 764 (2023) 775

the value exchanged on either side changes in a meaningful

way.

Here, the city’s trail is land adjacent to the ocean

shore, and ORS 105.688(1)(a) expressly applies recreational

immunity to it as such, for injuries that arise out of its rec-

reational use. That was and is true, notwithstanding the

Supreme Court’s decision in Liberty. Liberty clarified only

that when a person crosses land solely to gain access to other

land on which the person intends to recreate, recreational

immunity does not apply because using land to access other

land is not a recreational purpose. When the legislature

added ORS 105.688(1)(c), it did so to immunize owners of

trails, paths, and other rights of way from liability when

they allow such property to be used to access recreational

land even though the act of gaining access over their prop-

erty is not itself recreational. In other words, it extended

recreational immunity to landowners who would not qualify

for immunity after Liberty because their land is not made

available for recreational purposes.

We do not perceive a conflict between ORS 105.688

(1)(a) and (1)(c). If plaintiff’s injuries arose out of her rec-

reational use of the trail, and her principal purpose in

using the trail was recreational, then ORS 105.682 and

ORS 105.688(1)(a) would confer immunity on the city for

those injuries. If her purpose was not recreational, but was

instead to access the beach, then the question would be

whether ORS 105.688(1)(c) nevertheless confers immunity

on the city for her injuries. But because there is no dispute

that the trail was improved and maintained to provide

access to Agate Beach, ORS 105.688(1)(c) would not confer

recreational immunity on the city. There are genuine issues

about whether plaintiff’s principal purpose was recreational,

and whether her injuries arose out of such recreational use.

If a jury determines that plaintiff’s purpose in using the

trail was not recreational, but was instead to access Agate

Beach for recreational purposes, then her injuries would

necessarily not have arisen from a recreational purpose,

and recreational immunity would not apply. Because the

trail on which plaintiff fell was an improved trail within

the meaning of ORS 105.688(1)(c), the city’s entitlement to

776 Fields v. City of Newport

recreational immunity depends on the resolution of those

factual issues by a jury. The city was not entitled to pre-

vail as a matter of law on summary judgment, and the trial

court therefore erred in granting the city’s motion.

Reversed and remanded.