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Brewer v. Department of Fish and Wildlife5/10/2000
Argued and submitted October 6, 1999, at Enterprise, Oregon.
Affirmed.
Landau, P. J., concurring.
Plaintiffs appeal from the trial court's dismissal of their claims for the wrongful deaths of Pamela Anne O'Connor and her daughter Caitlin Jean O'Connor. Plaintiffs are the personal representatives of the O'Connors' estates. The O'Connors died while swimming in an area of Catherine Creek below a fish migration dam owned or maintained by the various defendants. Plaintiffs filed suit against numerous state agencies (state defendants) and the Swackhammer Ditch Improvement District (Swackhammer), alleging that defendants were negligent because the dam was built in such a manner that it created a dangerous undertow in which the O'Connors were caught. Defendants moved to dismiss plaintiffs' claims under ORCP 21 A(8) on the ground that plaintiffs failed to state a claim, because defendants were immune from liability under the Public Use of Lands Act, ORS 105.672 et seq. (Act). The trial court rejected plaintiffs' argument that the Act was unconstitutional under Article I, section 10, of the Oregon Constitution, and it granted defendant's motion. Plaintiffs appeal, and, for the following reasons, we affirm.
We review for errors of law a trial court's grant of a motion to dismiss for failure to state a claim under ORCP 21 A(8), accepting as true all well-pleaded factual allegations and giving plaintiffs the benefit of all favorable inferences that may be drawn from the facts alleged. Yanney v. Kohler, 147 Or App 269, 272, 935 P2d 1235, rev den 325 Or 368 (1997). On June 30, 1996, Pamela O'Connor, her son, and her nine-year-old daughter Caitlin went with a neighbor child to an area of Catherine Creek below a fish migration dam that traditionally has been used by the public for recreational purposes, including swimming. One of the children fell into the creek, and Pamela attempted to rescue the child but was caught in an undertow created by the dam. Caitlin then attempted to rescue her mother. Both Pamela and Caitlin suffered injuries resulting in their deaths. Plaintiffs alleged in their complaint that the O'Connors' deaths were the result of negligence by defendants in building and using a dam that unnecessarily created an unreasonably dangerous undertow.
Defendants moved to dismiss plaintiffs' claims on the ground that they failed to state a claim against defendants as a matter of law because defendants were immune from liability under the Act. Plaintiffs responded that the Act serves to deprive them of all remedies and therefore violates Article I, section 10, of the Oregon Constitution. The trial court held that the Act defeated plaintiffs' claim and did not violate Article I, section 10. Plaintiffs appeal, arguing that the trial court erred because the Act does not bar their actions against all defendants and because, in any event, the Act violates Article I, section 10.
We turn first to plaintiffs' statutory argument that the Act does not bar their actions against all defendants. Plaintiffs alleged that the property on which the accidents occurred is owned by the Oregon Transportation Commission or the Oregon State Parks and Recreation Department and that the Oregon Fish and Wildlife Commission is the owner of the dam and is responsible for its maintenance and operation. Plaintiffs also alleged that the Oregon Department of Transportation or Oregon State Parks and Recreation Department maintains and controls the land for the Oregon Transportation Commission and that the Oregon Department of Fish and Wildlife (ODFW) constructed the dam and is responsible for its maintenance and operation. Plaintiffs further alleged that Swackhammer is in charge o
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