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Liberty v. State7/20/2005
or recreational purposes has the unlikely--indeed, according to plaintiffs, the "absurd"--consequence of extending statutory immunity to any public highway that is used for access to recreational areas. Plaintiffs are mistaken.
To begin with, any such consequence is not a result of our reading of the statute. Indeed, it would seem to flow from plaintiffs' reading of the statute as well. Even if "recreational purpose" were limited to the activities listed in ORS 105.672(5), that list includes "viewing or enjoying historical, archeological, scenic or scientific sites," all of which may be accomplished from motor vehicles on public roadways. The legislature, in fact, has declared that it is in the public interest to develop a "system of scenic roads to enhance recreational travel and sightseeing." ORS 390.010(3)(d). Thus, even under plaintiffs' proposed reading of the statute, using a state highway for recreational purposes would trigger the immunity provided in ORS 105.682.
As it turns out, however, the legislature apparently anticipated such concerns and expressly provided that the Oregon Transportation Commission and the Department of Transportation are responsible for the safe design, construction, and maintenance of the state's highways. ORS 366.205(1) provides, in part, that the Oregon Transportation Commission "has general supervision and control over all matters pertaining to the selection, establishment, location, construction, improvement, maintenance, operation and administration of state highways." Similarly, ORS 366.290 provides, in part, that "the construction, improvement, maintenance and repair of such roads shall be under the jurisdiction of the department [of Transportation]." In Little v. Wimmer, 303 Or 580, 585-86, 739 P2d 564 (1987), the Oregon Supreme Court construed those statutes to impose on the commission and the department the obligation of "continuous 'supervision and control' of maintenance and improvement of the state's highways," and held that the negligent performance of that obligation may result in liability in negligence.
Thus, whatever might be said of the broad scope of the immunity generally conferred on public owners of property by ORS 105.682, the fact remains that the legislature has more specifically provided that, where state highways are concerned, the State Transportation Commission and Department of Transportation remain accountable for the negligent performance of their statutory obligations. See, e.g., Bobo v. Kulongoski, 338 Or 111, 119, 107 P3d 18 (2005) (where statutes conflict, the more specific controls).
We therefore conclude that the trial court correctly determined that, when plaintiffs used the state's asphaltic concrete path for the purpose of gaining access to the private recreational area located on the opposite side of the Wilson River, they used the state's land for "recreational purposes" within the meaning of the statute. Accordingly, the state is immune from liability under ORS 105.682 for any injuries that arose out of their use of the land for that purpose.
That leaves plaintiffs' argument that, if ORS 105.682 does apply, it violates the remedies clause of Article I, section 10, of the Oregon Constitution. We rejected precisely the same argument in Brewer, 167 Or App at 190-91, and plaintiffs do not explain why we should reconsider our decision in that case. We reject plaintiffs' constitutional argument without further discussion.
Affirmed.
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