Court case could affect public access to trails to recreational sites

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, start en route to the park or only after you get there, or does it start after you’ve reached some designated part of the park?

Determination of that issue may decide whether a bunch of Oregon cities will be closing part or all of their park areas to recreation in the months ahead. But that could be averted if the Oregon Legislature changes a vague section of a law that puts courts, local governments and recreating citizens in a bind.

The law is not new but the issue erupted last year with the case of Nicole Fields v. City of Newport, decided by the Oregon Court of Appeals in July, with some questions returned for consideration to a lower court. (The state Supreme Court has declined to review it.) 

Fields was walking her dogs, with a friend, along the ocean to Agate Beach at Newport. When she reached a wooden bridge on the trail, she slipped and fell, and her leg was broken. The slipperiness of the bridge seems clear, because a rescue team who came to get her, and even one of their vehicles, also slid around the bridge. 

The city of Newport manages the area, and Fields sued it for damages. The city’s defense was “recreational immunity,” which is described 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, with her dogs and friend, there. 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. The Court of Appeals weighed in on Field’s side, but its decision seemed to struggle with the vagueness in the statute.

A trial on some of the facts, ordered as a followup by the Court of Appeals, is expected this year. 

Does this matter outside of Newport?  

At least one plaintiff’s attorney suggests the impact is not likely to be large, that the facts are specific enough to the Newport case; the fact that the trail was adjacent to the ocean also has a specific connection to the state’s law on liability. 

Property owners, including local governments, are less sure. CIS Insurance Services, which insures many Oregon local governments, warned that the Court of Appeals decision effectively ended recreational immunity for improved trails: “Public and private landowners of improved trails are no longer protected from lawsuits,” a CIS lawyer said.

CIS even advised local governments to close improved trails used to access a recreational areas: “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 cities of Waldport and Oceanside and the Port of Garibaldi have shut 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.

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 creaste greater clarity. The issue is likely to come up at the February 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.