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Liberty v. State7/20/2005
En Banc
Argued and submitted October 7, 2004. Resubmitted en banc June 15, 2005.
Before Brewer, Chief Judge, and Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Schuman, Ortega, and Rosenblum, Judges.
Affirmed.
ORS 105.682 provides that, when an owner of land permits any person to use the land for "recreational purposes," the owner is not liable for personal injury , death, or property damage that arises out of the use of the land for such purposes. At issue in this case is the scope of that statutory immunity.
The owner of land--the state--permitted plaintiffs to use its land for access to an adjacent parcel of privately owned land, where plaintiffs went swimming. On the way back from their recreational activity, while on the state's land, plaintiffs were injured. They initiated actions for personal injury against the state, which were later consolidated. The state invoked the immunity conferred by ORS 105.682, arguing that plaintiffs, by using the state's land to access the swimming area located on the adjacent parcel of private property, used the land for recreational purposes. Plaintiffs argued that ORS 105.682 does not apply because they used the state's land not for recreational purposes, but merely for access to another parcel of land that they intended to use for recreational purposes. The trial court concluded that, as a matter of law, such access to other lands for recreational purposes is itself a "recreational purpose" within the meaning of the statute. We agree and affirm.
The relevant facts are not in dispute. Willamette Industries and Kenneth Fan Rad own property on the north side of a portion of the Wilson River known as the "Fisherman's Bridge" area. That property includes a "beach" area that both owners permit the public to use for swimming, fishing, and other recreational purposes. The state owns land on the opposite side of the river, which runs parallel to state Highway 6. The state has created a paved turnout area at the side of the highway and an "asphaltic concrete" path that runs from the turnout area along the highway for a short distance before veering down a short but steep vegetated slope to a footbridge that crosses the Wilson River and leads to the private beach area. According to the state, the path is "a walkway for recreational users of the Wilson River that allows them access to the bridge." The state does not charge for the use of the path. A map of the area, based on a hand-drawn exhibit--not drawn to scale--, is as follows:
Map
Plaintiffs and their families drove down Highway 6, parked in the paved turnout area, walked down the asphaltic concrete path along the highway and down to the footbridge. They crossed the footbridge and entered the beach area of the private land on the other side of the river, where they swam and played on the beach. When it was time to leave, plaintiffs and their families left the private property, crossed the footbridge, and followed the state's concrete path back to the highway. At the top of the path, the pavement broke, and plaintiffs fell down the slope approximately 40 feet, injuring themselves in the fall.
Plaintiffs initiated personal injury actions against the state, alleging that the state was negligent in maintaining the asphaltic concrete path. The state answered, asserting that it is immune pursuant to ORS 105.682, and eventually moved for summary judgment on the same ground. In support of its motion, the state argued that ORS 105.682 confers immunity when a person enters land for a recreational purpose. According to the state, when plaintiffs used the state-owned asphaltic concrete path, it was for the recreati
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