Stapilus: It may take legislative action to avert local park closures

About the writer: Randy Stapilus is a longtime journalist and author based in Carlton, where he operates the Ridenbaugh Press book-publishing business. He hosts columns of his own and a stable of other writers on his website, found at ridenbaugh.com.

If you take your dog for a walk from your home, walking some distance to a local park and then back, you’re engaging in recreation.

But does your recreation begin when you leave your house, en route to the park, or only after you actually get there? Or does it begin, at least in the eyes of the law, only when you reach some designated part of the park?

What difference does it make? Well, it could end up deciding whether cities around Oregon close off some or all of their park and recreation areas in the months ahead.

That could be averted, but it would take action by the Oregon Legislature to clean up a vague section of state law that is, as things currently stand, putting cities, courts and citizens in a bind.

The issue erupted last year with the case of Nicole Fields v. City of Newport. It was decided in Fields’ favor by the Oregon Court of Appeals, and the Oregon Supreme Court opted to let the ruling stand.

Fields was walking her dogs along the ocean to Agate Beach in Newport with a friend. When she reached a wooden bridge on the trail, she slipped and fell, breaking her leg.

The slipperiness of the bridge seems clear, because members of a rescue team who came to get her slid around on the bridge themselves, as did one of their vehicles.

Newport manages the area, and Fields sued the city for damages. The city’s defense was “recreational immunity,” which is described this way in state law: “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 … by limiting their liability toward persons entering thereon for such purposes.”

A little more specifically, the law says, “The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes … and is not affected if the injury … occurs while the person entering land is engaging in activities other than the use of the land for recreational purpose.”

The shield against liability, then, applies if you’re using the property for “recreational purposes” — as Newport argued that Field was – but not if you’re using it for some other purpose. Field’s argument was that she was using the bridge simply to get to Agate Beach, and her intent was to recreate there in the company of her dogs and friend.

Oregon law lists some activities that can specifically be considered as recreation, but others could be included as well.

All of this put the courts in the position of deciding what “recreation” is and isn’t, and because of a specific provision in the immunity statute, deciding whether a specific spot was an “unimproved, nonrecreational” trail. Though it weighed in on Fields’ side, the court seemed to struggle with the vagueness in the statute itself.

So why does this matter outside of Newport?

At least one plaintiff’s attorney suggests the impact is not likely to be large, as some of the facts at issue are specific to the Newport case, and the trail’s oceanside location has a specific connection to the state’s law on liability.

Private property owners and units of local governments, which often work in tandem in providing recreational access, are less sure. And for good reason, it would seem.

CIS Insurance Services, which insures many Oregon local governments, warned the Court of Appeals decision effectively ends recreational immunity for improved trails: “Public and private landowners of improved trails are no longer protected from lawsuits,” a CIS lawyer maintained.

CIS even advised local governments to close improved trails used to access recreational areas, saying, “This especially includes trails, walkways and stairs used to access bodies of water, such as the ocean, lakes, rivers, streams and reservoirs.”

That warning has been heard.

The Port of Garibaldi and cities of Waldport and Oceanside have responded by shutting down trails near the ocean, and other trail plans have been put on hold. Other cities, including many far from the coast, are weighing their options, which may include shutting down park access as well, at least on a selected basis.
The uncertainty over immunity grows out of the peculiar phrasing of the state’s recreational immunity law, which was crafted at the Oregon Legislature and could be revised there to provide greater clarity. The issue is likely to come up during February’s short session, which usually takes up only a limited number of non-financial issues.

If lawmakers don’t act, and lots of constituents this spring and summer find their access to local parks curtailed, they may wish they had.