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Brewer v. Department of Fish and Wildlife5/10/2000
the Act has changed since Denton was decided, the key language of the definition of "owner" has not. 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.
We turn to plaintiffs' constitutional arguments. Article I, section 10, of the Oregon Constitution provides, in part, that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Plaintiffs argue that the Act deprives them of a remedy by due course of law for the injuries to Pamela and Caitlin O'Connor that otherwise would be cognizable under Oregon law. Plaintiffs contend that the legislature has recognized a right to recover for injuries such as those sustained by the O'Connors via the wrongful death statute, ORS 30.020. They further contend that the legislature, although recognizing such a right, has denied them a remedy for the injuries, eliminating their remedies for those injuries by providing immunity for defendants who qualify as owners of recreational lands under the Act. Defendants respond that the legislature has not recognized a right but abolished a remedy; rather, it has declined to recognize the existence of a right and exercised its "authority to determine what constitutes a legally cognizable injury." Sealey v. Hicks, 309 Or 387, 394, 788 P2d 435 (1990). In defendants' view, the legislature, in enacting the Act, has determined that an injured recreational land user does not have a right to recover from a landowner for negligent injuries if the landowner has opened the land for recreational purposes in accordance with the Act.
The state defendants also make another argument. They argue that, given the nature of the state's sovereign immunity, plaintiffs never had a right to recover against the state that was guaranteed by Article I, section 10. In Hale v. Port of Portland, 308 Or 508, 513-16, 783 P2d 506 (1989), the court noted that the common-law rule of sovereign immunity--that the sovereign could not be sued in its own courts--was universally adopted in the various states, including Oregon. Article IV, section 24, of the Oregon Constitution permits the legislature to waive its immunity by way of general legislation but not by way of special legislation, such as authorizing a particular action by a particular plaintiff. 308 Or at 517. The Oregon Tort Claims Act is general legislation partially waiving the state's sovereign immunity. Id. In Hale, the court held that the plaintiff was not denied a "remedy in due course of law" in violation of Article I, section 10, against the Port of Portland, a part of the state's government, because the Port was immune to the same extent that the state was immune. Therefore, the court concluded, the plaintiff never had a right to recover against the Port by virtue of the guarantee provided by Article I, section 10, of the Oregon Constitution. See also Gearin v. Marion County, 110 Or 390, 396, 223 P 929 (1924) (Article I, section 10, has "no application to an action sounding in tort when brought against the state"). In the view of the state defendants, under the rationale set forth in Hale and Gearin, plaintiffs have no right to recover against the state defendants for the deaths of the O'Connors that is guaranteed by Article I, section 10.
Plaintiffs respond that the argument is unpreserved, that it is not an "error of law apparent on the face of
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