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Brewer v. Department of Fish and Wildlife5/10/2000
l immunity onto entities that were not employers. Kilminster, 323 Or at 627.
Although the court did not clarify exactly what was wrong with this "piggy backing," we must conclude that it was something about the nature of the relationship between employers and employees as set forth within the workers' compensation scheme that made it permissible for the legislature to abolish a right for parents to recover under the wrongful death statute for the death of children covered by workers' compensation law. We believe that the distinction the court must have had in mind was that the legislature made a legitimate policy choice to substitute one right, the right to participate in the no-fault workers' compensation scheme, for another right, the right to be compensated for certain injuries to the extent permitted by the wrongful death statute. See also Evanhoff v. State Industrial Acc. Com., 78 Or 503, 154 P 106 (1915) (recognizing the legitimacy of the legislature's choice to substitute the no-fault workers' compensation scheme for common law tort liability). By comparison, the Neher defendants, being neither employers nor employees that participated in the trade-off represented by the workers' compensation scheme, were mere "piggy backers" onto the employers' immunity, seeking to reap a benefit from a bargain to which they were not parties.
On balance, we conclude that the Act at issue here more resembles the type of permissible trade-off of rights that the legislature is entitled to make, like the trade-off represented by the workers' compensation scheme, than it does the impermissible "piggy backing" of the immunity of public defendants at issue in Neher. The Act contains the following policy statement:
"The Legislative Assembly hereby declares it 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, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, woodcutting or the harvest of special forest products." ORS 105.676.
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 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. This Act does not permit the "piggy backing" that the court disapproved in Neher because it extends its protections and benefits only to those who are legitimate participants in the trade-off--the owners of the land who open their land under the terms of the Act and the users of the land who use the land for the purposes stated in the Act.
This reasoning comports with a number of earlier cases as well. In Hale, the court concluded that a legislative scheme that provided similar trade-offs passed constitutional muster by striking a "new balance * * * between municipal corporations and those to whom certain of those corporations could, under limited circumstances, formerly have been liable[.]" Hale, 308 Or at 523. The legislation at issue in Hale permitted suits against municipal corporations for torts, whether arising out of a governmental or proprietary function, but placed limitations on
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