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Conant v. Stroup8/14/2002
Argued and submitted April 15, 2002, Summit High School, Bend.
Affirmed.
Plaintiff initiated this action for negligence arising out of injuries that she suffered while jogging on defendants' property. The trial court entered a directed verdict on the ground that defendants are immune under ORS 105.682, which provides that private landowners are immune from liability for personal injuries that arise out of the use of their land for recreational purposes when the owner permits any member of the public to use the land for those purposes. Plaintiff appeals, assigning error both to the directed verdict and to the denial of her motion to amend. We affirm.
Defendants own a 50-acre parcel of real property near Redmond. The property is used primarily for growing crops. It is surrounded by a barbed-wire fence on all sides. An irrigation canal runs along the eastern boundary of the property; in fact, defendants' property extends to the middle of the canal itself. A dirt road parallels the canal on defendants' land. A gate permits access to the dirt road.
Plaintiff often jogged along the dirt road that parallels the canal. Other members of the public also used the road for jogging and cycling. On one occasion, while plaintiff was running along the dirt path, one of two dogs that had been roaming free on defendant's property bit her.
Plaintiff filed a complaint against defendants for negligence. She alleged that she had been jogging on defendants' property with their implied, if not their express, permission. In their answer, defendants alleged as affirmative defenses that they never gave plaintiff permission to enter their land and that she was a trespasser. In the alternative, they alleged that, if she had been permitted to use the property, then they are immune from liability under ORS 105.682.
At trial, plaintiff's theory was that she was not a trespasser and that, instead, she had used the dirt road for jogging for so many years that she was entitled to assume that she had implicit permission to continue doing so. At the same time, she contended that the public generally had not been permitted to use the road; only she--and perhaps a few other individuals--had been permitted to use the road.
At the close of plaintiff's case, defendants moved for a directed verdict under ORS 105.682. Defendants argued that, assuming that plaintiff was correct that she was permitted to use the road, they are entitled to immunity. Plaintiff opposed the motion on the ground that the statute applies only when individuals are permitted as members of the general public. In this case, she argued, the public was not permitted to use the road; only she and perhaps a few other joggers and cyclists were permitted to use it.
The trial court granted the motion. The court explained that "the statute which the defendants claim gives them protection seems to apply when any person is allowed to use the property for recreational purposes and does not seem to require that the land owners throw the property open to the general public for everyone's use." Plaintiff complained that the court's ruling would lead to the absurdity of providing immunity whenever a landowner invites a social guest. The trial court replied that "that's not what's going on here." According to the trial court:
"The evidence [plaintiff] presented herself is that she jogged on that property for the better part of a decade, that at least during the period of time that [defendants] owned the property, she continued to jog on, on it. * * *
"That she sees other people on the trail. * * * here were no signs indicating that entry was unwelcome or prohibited.
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