Schlesinger v. City of Portland7/13/2005
Argued and submitted August 24, 2004.
Before Wollheim, Presiding Judge, and Edmonds, Judge, and Deits, Judge pro tempore.
Affirmed.
Plaintiff was injured on a path in a public park in the City of Portland. She filed a complaint naming the city as the sole defendant, alleging that the city was negligent in constructing and maintaining the path. The city moved to dismiss the complaint under ORCP 21 A(8), contending that it was immune under the Public Use of Lands Act, ORS 105.672 to 105.700, which provides that an owner of land is not liable for a personal injury that arises out of the use of the land for recreational purposes. The trial court agreed with the city and dismissed the complaint. Plaintiff appeals from the ensuing judgment. We review for errors of law, City of Keizer v. Lake Labish Water Control Dist., 185 Or App 425, 428, 60 P3d 557 (2002), rev den, 336 Or 60 (2003), and affirm.
For the purposes of this appeal, the critical factual allegations are as follows: In June 2000, plaintiff was walking her dog on a gravel path in Albert Kelly Park, a park maintained by the Bureau of Parks and Recreation of the City of Portland. As plaintiff was standing on the path, the gravel on the path became unstable and began to slide downhill. Plaintiff was injured as a result. Because we are reviewing the dismissal of a complaint under ORCP 21 A(8), we accept those allegations as true. See, e.g., Boise Cascade Corp. v. Board of Forestry (A79626), 131 Or App 538, 540, 886 P2d 1033 (1994), aff'd in part and rev'd in part on other grounds, 325 Or 185, 935 P2d 411 (1997). Plaintiff served a tort claim notice on the city and subsequently initiated this negligence action. Plaintiff's complaint names a single defendant: the "City of Portland, through the Bureau of Parks and Recreation of the City of Portland."
As noted, the city moved to dismiss the complaint, contending that it was immune from liability. The city relied on ORS 105.682, sometimes referred to as Oregon's "recreational use statute," Waggoner v. City of Woodburn, 196 Or App 715, 717, 103 P3d 648 (2004); Conant v. Stroup, 183 Or App 270, 280, 51 P3d 1263 (2002), rev dismissed as improvidently allowed, 336 Or 126 (2005), and on Brewer v. Dept. of Fish and Wildlife, 167 Or App 173, 2 P3d 418 (2000), rev den, 334 Or 693 (2002), in which we rejected arguments that ORS 105.682(1) was unconstitutional under the remedy clause of Article I, section 10, of the Oregon Constitution. ORS 105.682 provides, in part:
" n owner of land is not liable in contract or tort for any personal injury * * * that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes[.]"
According to the city, because plaintiff's injuries arose out of the recreational use of its park, her claim was barred by ORS 105.682.
At the hearing on the motion to dismiss, plaintiff conceded that, looking at the "surface" of ORS 105.682, the city was immune. However, plaintiff argued that applying ORS 105.682 to her negligence claim would violate the remedy clause of Article I, section 10. First, plaintiff contended that her complaint stated a common-law cause of action, which the legislature could not constitutionally eliminate. She further contended that her situation was distinguishable from the situation in Brewer. In plaintiff's view, Brewer established a "balancing of benefits and detriments" approach to remedy clause questions involving the recreational use statute. In the circumstances of Brewer, according to plaintiff, application of the recreational use statute balanced the detrim
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