Johnson v. Gibson et al

Filing 64

OPINION and ORDER - Defendants' motion 32 to substitute the City as the sole defendant is DENIED. Johnson's motion 39 for judicial notice of Judge Jones's rulings in the First Action is DENIED as moot. Defendants' motion 34 for summary judgment based on immunity provided by the Act is GRANTED. Dated this 14th day of January 2013, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

EMILY JOHNSON,

Case No.: 3:11-CV-432-AC
Plaintiff,

OPINION AND ORDER

v.
SCOTT GIBSON and ROBERT
STILLSON,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Emily Johnson (“Johnson”) filed this action asserting a single negligence claim
against defendants Scott Gibson and Robert Stillson (collectively “Defendants”) for injuries she
sustained when she fell while jogging in Tom McCall Waterfront Park (the “Park”). Defendants
move for summary judgment and seek substitution of the City of Portland (“City”), owner of the
Park and Defendants’ employer, as the sole defendant under OR. REV. STAT. 30.265. Johnson asks
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the court to take judicial notice of opinions entered by Judge Jones in her previous action filed in this
court in February 2010 (the “First Action”).
The court finds that Defendants are proper defendants1 in this action and denies the motion
to substitute the City.2 Because Johnson’s request for judicial notice is related primarily to
Defendants’ motion to substitute, and the court is ruling in Johnson’s favor on that motion,
Johnson’s request for judicial notice is denied as moot. Defendant are properly characterized as
“owners” under Oregon’s recreational use statute, which Oregon courts have held to be constitutional
as applied to individual landowners, and they are entitled to the immunity provided landowners
therein. Accordingly, Defendants are immune from Johnson’s negligence claim and are entitled to
summary judgment.
Preliminary Procedural Matter
For the second time in the ongoing litigation between these parties, Defendants move to
substitute the City as sole defendant relying on the Oregon Tort Claims Act (OR. REV. STAT.
30.260-30.300)(the “OTCA”). The version of the OTCA in effect at the time of Johnson’s accident
on July 16, 2009, and at the time this action was filed on April 6, 2011, provided, in pertinent part,
that:
Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to
action or suit for its torts and those of its officers, employees, and agents acting
within the scope of their employment or duties, whether arising out of a

1

While the court questions whether the allegations of the operative complaint adequately
allege a negligence claim against defendant Stillson, for the purpose of analyzing whether
Defendants are entitled to immunity, the court assumes, without deciding, that Stillson is a proper
defendant in this action.
2

The parties have consented to jurisdiction by magistrate in accordance with 28 U.S.C.
§ 636(c)(1).
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governmental or proprietary function . . . . The sole cause of action for any tort of
officers, employees or agents of a public body acting within the scope of their
employment or duties and eligible for representation and indemnification under ORS
30.285 or 30.287 shall be an action against the public body only. The remedy
provided by ORS 30.260 to 30.300 is exclusive of any other action or suit against any
such officer, employee or agent of a public body whose act or omission within the
scope of the officer’s, employee’s or agent’s employment or duties gives rise to the
action or suit. No other form of civil action or suit shall be permitted. If an action
or suit is filed against an officer, employee or agent of a public body, on appropriate
motion the public body shall be substituted as the only defendant.
Judge Jones denied Defendants’ motion to substitute the City as the sole defendant in the
First Action under this version of the OTCA. Johnson v. City of Portland, CV No. 10-117-JO (D.
Or. Feb. 10, 2010). Judge Jones acknowledged the language of the OTCA appeared to mandate the
substitution of the City as the sole defendant but then held that such substitution would ultimately
violate the “remedy clause” found in Article I, section 10, of the Oregon constitution (“Remedy
Clause”). Id.
First, Judge Jones found that because cities were immune from tort liability with regard to
their governmental functions under common law and Oregon courts consider the creation and
maintenance of parks to be a governmental function, Johnson could not bring an action for
negligence against the City for injuries she received while jogging in the Park. Id. at 3-4 (quoting
Schlesinger v. City of Portland, 200 Or. App. 593, 599 (2005)).

Accordingly, he dismissed

Johnson’s negligence claim against the City, with prejudice.
Judge Jones then addressed the question of whether substitution of the City for the
Defendants, which would effectively eliminate any recovery by Johnson for her injuries, violated the
Remedy Clause. The Remedy Clause provides that “every man shall have remedy by due course of
law for injury done him in his person, property, or reputation.” The Oregon courts have construed

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the Remedy Clause to guarantee a remedy for any injury that existed in common law. Id. at 3
(quoting Jensen v. Whitlow, 334 Or. 412, 418 (2002)). Therefore, the legislature may not abolish
a common law remedy without simultaneously providing a “constitutionally adequate substitute
remedy.” Id.
Judge Jones recognized that “at common law, city employees who negligently performed
their job duties did not enjoy . . . immunity” and could be held liable for such negligence under
common law. Id. at 4. He then explained that if he substituted the City for the Defendants, as
apparently required under the OTCA, Johnson “would have no remedy in tort, emasculated or
otherwise, for the injuries she suffered as a result of the individual defendants’ alleged negligence”
and that such action would “violate the remedy clause of Article I, section 10.” Consequently, he
denied Defendants’ motion to substitute the City as the sole defendant and allowed Johnson to
proceed on her negligence claims against the Defendants. Id. at 5.
The current version of the OTCA, which became effective on January 1, 2012, and was in
effect when Defendants filed their motion to substitute on April 5, 2012, provides, in pertinent part,
that:
(1) Subject to the limitations of ORS 30.260-30.300, every public body is subject to
civil action for its torts and those of its officers, employees and agents acting within
the scope of their employment or duties, whether arising out of a governmental or
proprietary function . . . .
(2) The sole cause of action for a tort committed by officers, employees or agents of
a public body acting within the scope of their employment or duties and eligible for
representation and indemnification under ORS 30.285 or 30.287 is an action under
ORS 30.260 to 30.300. The remedy provided by ORS 30.260 to 30.300 is exclusive
of any other action against any such officer, employee or agent of a public body
whose act or omission within the scope of the officer’s, employee’s or agent’s
employment or duties gives rise to the action. No other form of civil action is
permitted.
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(3) If an action under ORS 30.260 to 30.300 alleges damage in an amount equal to
or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole cause
of action for a tort committed by officers, employees or agents of a public body
acting within the scope of their employment or duties and eligible for representation
and indemnification under ORS 30.285 or 30.287 is an action against the public
body. If an action is filed against an officer, employee or agent of a public body, and
the plaintiff alleges damages in an amount equal to or less than the damages allowed
under ORS 30.271, 30.272 or 30.273, the court upon motion shall substitute the
public body as the defendant. . . .
(4) If an action under ORS 30.260 to 30.300 alleges damages in an amount greater
than the damages allowed under ORS 30.271, 30.272 or 30.273, the action may be
brought and maintained against an officer, employee or agent of a public body,
whether or not the public body is also named as a defendant. An action brought
under this subsection is subject to the limitations on damages imposed under ORS
30.271, 30.272 or 30.273, and the total combined amount recovered in the action may
not exceed those limitations for a singled accident or occurrence without regard to
the number or types of defendants named in the action.
OR. REV. STAT. 30.265 (2012).
OR. REV. STAT. 30.272, which limits liability for local public bodies for personal injury and
death provides, in pertinent part, that:
(1) The limitations imposed by this section apply to claims that:
(a) Are subject to ORS 30.260 to 30.300;
(b) Are made against a local public body, or against an officer, employee or
agent of a local public body acting within the person’s scope of employment
or duties;
(c) Arise out of a single accident or occurrence; and
(d) Are not claims for damage to or destruction of property.
(2) The liability of a local public body, and the liability of the public body’s officers,
employees and agents acting within the scope of their employment or duties, to any
single claimant for claims described in subsection (1) of this section may not exceed:
(a) $500,000 for causes of action arising on or after July 1, 2009, and before
July 1, 2010.
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OR. REV. STAT. 30.272 (2012). The impetus for the revisions to the OTCA were two cases in
which the Oregon courts held that requiring substitution of a government body as the sole defendant
in a negligence action against government employees violated the Remedy Clause by entirely
eliminating a cause of action against the individuals and depriving the plaintiff of a constitutionally
adequate remedy for their injuries, Clarke v. Oregon Health Sciences Univ., 343 Or. 581, 585 (2007),
and Ackerman v. OHSU Medical Group, 233 Or. App. 511, 533 (2010).
In Clarke, the Oregon Supreme Court addressed the issue of “whether the Oregon Tort
Claims Act . . . , specifically ORS 30.265(1) and ORS 30.270(1), as applied to this case, violates the
Remedy Clause of Article I, section 10, of the Oregon Constitution.” Clarke, 343 Or. at 585. The
parents of an infant who suffered brain damage as the result of negligent treatment by individuals
employed by a hospital filed an action on the infant’s behalf against the hospital and the individuals
who treated the infant. Id. at 586. The trial court granted the defendants’ motion to substitute the
hospital as the sole defendant in the action pursuant to OR. REV. STAT. 30.265, and then limited
the plaintiff’s recovery to $200,000, the maximum allowed under OR. REV. STAT. 30.270(1) for an
action against the state. Id. at 586-87. The plaintiff appealed, challenging the trial court’s
substitution of the hospital and limitation of damages as violating plaintiff’s right to a remedy. Id.
at 587. The appellate court found that the limitation of damages in an action against the state
prevented plaintiff from meaningfully pursuing her negligence claims against the individuals, which
existed at common law, and therefore, violated the Remedy Clause. Id. at 587-88. The appellate
court remanded the action to the trial court with directions to reinstate the claims against the
individual defendants. Id. at 588. The defendants then appealed to the Oregon Supreme Court. Id.
The Oregon Supreme Court affirmed the appellate court, finding that “the application of
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ORS 30.265(1) and ORS 30.270(1) in this case violates Article I, section 10.” Id. at 586. The court
applied the two-part test it created in Smothers v. Gresham Transfer, Inc., 332 Or. 83 (2001)3, and
found that because the hospital was an instrumentality of the state and would have been immune
from liability at common law, the legislature had the authority to limit the amount of damages a
plaintiff could recover from the state without violation the remedy clause. Clarke, 343 Or. at 610.
However, the requirement in OR. REV. STAT 30.265 that all actions against public employees be
brought against the public body, and subject to the $200,000 cap, effectively eliminated a plaintiff’s
preexisting right to obtain full recovery for their injuries from those who negligently caused their
injuries in violation of the Remedy Clause. The court explained that:
the elimination of a cause of action against public employees or agents in ORS
30.265(1), as applied to plaintiff’s claim against the individual defendants, violates
the Remedy Clause of Article I, section 10, because the substituted remedy against
the public body, as specified in ORS 30.270(1), is an emasculated version of the
remedy that was available at common law.
Id.
The Ackerman court relied heavily on Clarke and held that capping a plaintiff’s recovery to
the $400,000 available under the OTCA violated the Remedy Clause when viewed in light of the fact
that the jury awarded the plaintiff $1,412,000 in damages at trial. Ackerman, 233 Or. App. at 533.
In Ackerman, the plaintiff filed an action against a physician who performed surgery to repair a disc
injury in plaintiff’s neck, as well as the medical group and hospital that employed the physician,

3

Smothers set forth a framework for determining when a legislative action violates the
Remedy Clause. The first consideration is whether the plaintiff alleged a claim that was recognized
in Oregon under common law for an injury to an absolute right. If such a claim was alleged and the
legislature abolished the common law claim, the legislature must have provided a constitutionally
adequate substitute remedy for the injury to avoid violation of the Remedy Clause. Smothers, 332
Or. at 124.
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asserting that the physician’s negligence resulted in plaintiff’s severe injury. Id. at 514. After trial,
the trial court entered judgment in favor of plaintiff for the full amount of the $1,412,000 jury
verdict, but specifying that as a public body, the hospital was only liable for $200,000 of that amount
under the OTCA. Id. at 513. On appeal, the appellate court found that the medical group was an
instrumentality of the state that would have been protected by sovereign immunity at common law.
As such, the legislative limitation on recovery from the medical group under the OTCA to $200,000
did not offend the Remedy Clause. Id. at 526. The court then addressed defendants’ motion to
substitute the hospital for the negligent physician as required under OR. REV. STAT 30.265.
The court recognized the physician clearly fell within the scope of the OTCA’s substitution
and cap statutes and that plaintiff would have had an uncapped remedy against the physician at
common law. Id. The issue then became whether application of the OTCA provisions with regard
to the physician violated the Remedy Clause. The court found that the $400,000 available to plaintiff
from the hospital and the medical group was not constitutionally adequate in that it did not
sufficiently compensate plaintiff for his $1,412,000 loss. In reaching this conclusion, the court
considered the amount of the award available to the plaintiff under the OTCA, the ratio between the
jury award and the capped amount, and the amount of the difference between the jury award and the
capped amount. Id. at 529-30. Consequently, the application of OTCA to the physician in this
instance violated the Remedy Clause. Id. at 533. The court denied the defendants’ motion to
substitute the hospital for the negligent physician and found that the hospital was liable for $200,000,
the medical group liable for $200,000, and the physician liable for $1,012,000. Id.
The legislative history for the current version of the OTCA contains many references to
Clarke and Ackerman. Roy Pulvers, an attorney speaking to the Senate and House Judiciary
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Committees in support of SB 397, the bill amending the OTCA to eliminate the required substitution
in cases that exceeded the caps, explained that:
The purpose of this bill is twofold: 1) to conform the statutes under the Oregon Tort
Claims Act (“OTCA”) to the apparent practice in the courts following the Oregon
Supreme Court’s decision in Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007); and
2) to address the constitutional concern articulated by the Oregon Supreme Court in
Clarke that the so-called “substitution” amendments to the OTCA in 1991, which
provided that the sole cause of action was against the public body and that the body
could be substituted in for a named individual as a defendant, had completely
eliminated the asserted historic right of an injured person to sue the individual who
caused the harm. Along with the substantial raise in the tort claim limits adopted by
the 2009 Legislative Assembly, SB 397 will further the legislature’s underlying goal
of enacting a tort claims cap that may prove most responsive overall to the
constitutional concerns raised by the Oregon Supreme Court in Clarke v. OHSU.
***
The court in Clarke concluded that the 1991 change had entirely eliminated a cause
of action against the individual and that this was relevant to its decision that the
OTCA, which since 1991 only provided for a limited claim and only against the
government body, violated the remedy clause by not giving the injured plaintiff a
constitutionally adequate remedy against the individual who had cause the harm.
In order to rectify that problem, the Oregon Supreme Court in Clarke, and the
Oregon Court of Appeals thereafter in Ackerman v. OHSU (another case under the
old, pre-2009 cap limits), concluded that a remedy against the individual was
required in cases in which the limited remedy against the government was not
adequate. Thus in Ackerman, for example, judgment for the amount of the judgment
above the cap was entered against the individual defendant.
SB 397 would return the law to its status prior to the 1991 OTCA
amendments, for cases in which the amount of damages alleged exceeds the OTCA
cap limits. This would address the Supreme Court’s apparent concern about the
adverse constitutional effect of the 1991 amendments by restoring a remedy against
the individual. SB 397 also would recognize that, as a practical matter after Clarke
and Ackerman, we are given to understand that courts reasonably enough are
reluctant or unwilling to remove individuals as defendants if the amount of the
damages claimed exceeds the OTCA cap limits.
(Tienson Decl. Ex. C at 1-3, Ex. D at 1-3.)

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Similarly, Amy Wayson, Vice President and General Counsel of Oregon Health & Science
University testified before both committees and stated that the reason for the proposed changes to
the OTCA was:
to respond to the apparent concerns of the Oregon Supreme Court in its decision in
Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007) that because the substitution
provision completely eliminates an injured person’s ability to sue an individual, (a
right that generally existed before the adoption of the Oregon Constitution) in very
high damages cases, that provision may leave the claimant with an inadequate
remedy in violation of the Oregon Constitution. You will recall that the Supreme
Court in Clarke found that, in that very high damages case, the then very low OTCA
cap limits of $200,000 per claim and $500,000 per occurrence were not adequate to
provide Jordaan Clarke with an adequate remedy. It was in response to the Supreme
Court’s emphasis on the great disparity between those low cap amounts and the
damages suffered by Jordaan Clarke that the 2009 Legislature very substantially
raised the amounts of the OTCA caps to today’s limits.
In addition to emphasizing the damages versus cap amounts, however, the
Clarke court expressed concern about the complete elimination of the right to sue the
individual. Passage of SB 397 would respond to this concern of the Supreme Court,
and further establish that the current OTCA caps are consistent with the Oregon
Constitution.
(Tienson Decl. Ex. E at 2, Ex. G at 2.)
Finally, the Staff Measure Summary prepared for the Senate Judiciary Committee by
Cheyenne Ross, Committee Counsel, represents that the “[m]easure continues to make [the] OTCA
consistent with [the] holding in [the] Clarke case.” (Tienson Decl. Ex. B.) Ross further explains
that “Senate Bill 397 A is the legislature’s further response to the Court’s concern about the
elimination of the cause of action against the individual. It allows a plaintiff to proceed against a
named individual or individuals when the amount of damages alleged exceeds the cap, without
relieving the public body of its obligations to indemnify.” (Tienson Decl. Ex. B.)
The case law, statutes, and legislative history discussed above make it clear that as of

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December 28, 2007, the date Clarke was filed, the law in Oregon was that when a plaintiff asserts
a claim against a public body and a negligent agent or employee of that public body and the damage
claim measurably exceeds the OTCA cap for the public body, the plaintiff must be able to proceed
against the negligent individual to avoid a violation of the Remedy Clause. This court finds no
reason in this case to vary from the clear tenets of the Oregon courts and legislature.
Johnson’s cause of action arose on July 16, 2009, the date she fell while jogging the Park.
The version of the complaint in effect at the time Defendants filed their motion to substitute (the
“Amended Complaint”) specifically alleges that “the amount in controversy exceeds the sum of
$75,000” for jurisdictional purposes but then generally seeks “economic and noneconomic damages
in amounts to be proven at trial.” (Am. Compl. ¶¶ 6, 13.) In the Amended Complaint, Johnson
describes herself prior to the fall as “a young woman, who despite being legally blind due to macular
degeneration in her eyes, was a very physically active person who participated in collegiate sports”
and her resulting injuries as “severe, permanent, and disabling which have prevented her from
working, participating, and/or enjoying her normal and customary daily activities, interfered with
her enjoyment of life, and caused her severe physical, mental, and emotional distress.” (Am. Compl.
¶¶ 2,12.) Considering Johnson’s age, her activities before the fall and the injuries caused by the fall,
and viewing the allegations in Johnson’s favor, the Amended Complaint alleges damages that could
reasonably exceed the $500,000 limit set forth in OR. REV. STAT. 30.272. This view is supported
by Johnson’s Second Amended Complaint filed on November 1, 2012, with Defendants’ consent
and leave of the court (the “Current Complaint”), which specifically alleges that the “amount in
controversy exceeds the sum of $500,000” and seeks “the sum of $250,000 for past and future
economic damages and $750,000 in noneconomic damages.” (Second Am. Comp. ¶¶ 6, 13.)
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Consequently, Johnson’s claim alleges damages in an amount greater than $500,000, clearly
allowing her to maintain an action against Defendants under the current version of the OTCA.
Similarly, under the teachings of Clarke and Ackerman, Johnson should be allowed to pursue her
claims against Defendants under the prior version of the OTCA as Johnson’s ability to recover
against the City is limited by the cap and her claim for damages far exceeds the cap, thereby making
the substitute remedy offered her under the OTCA not constitutionally adequate. This court agrees
with Judge Jones’s prior ruling that substitution of the City for the individual defendants in this case
is not appropriate.
Defendants’ motion to substitute the City as the sole defendant is denied. Johnson is entitled
to proceed against the Defendants in this action. Johnson’s Request for the Court to Take Judicial
Notice of Judge Jones’s ruling in the First Action is denied as moot. Johnson offered those rulings
primarily in support of her argument that Defendants’ motion to substitute the City as sole defendant
should be denied. In light of the fact that the court has ruled in her favor on those issues without the
need to take judicial notice of Judge Jones’s previous rulings and considered them merely for their
precedential value, the court need not decide whether such rulings are appropriate for judicial notice
in this action. Accordingly, Johnson’s request for judicial notice is denied as moot.
Legal Standard
Summary judgment is appropriate where the “movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a) (2012). Summary judgment is not proper if material factual issues exist for trial. Warren v.
City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of
a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint, or with unsupported conjecture or
conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summary judgment should be entered against “a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell
v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to
the existence of a genuine issue of fact should be resolved against the moving party. Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn,
summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140
(9th Cir. 1981).
However, deference to the nonmoving party has limits. A party asserting that a fact cannot
be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV.
P. 56(c) (2012). The “mere existence of a scintilla of evidence in support of the [party’s] position
[is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotations marks omitted).

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Discussion
Defendants move for summary judgment asserting they are entitled to immunity under the
Public Use of Lands Act (OR. REV. STAT. 105.672 - 105.696) (the “Act”). Johnson concedes the
City is immune from liability under the Act but argues that Defendants do not qualify as “owners”
under the Act and, therefore, are not entitled to protection under the Act. Alternatively, Johnson
asserts that the Act, as applied to Defendants, violates the Remedy Clause.
I. Who is an “Owner” under the Act?
The Act provides, in relevant part, that:
an owner of land is not liable in contract or tort for any personal injury, death or
property damage that arises out of the use of the land for recreational purposes,
woodcutting or the harvest of special forest products when the owner of land either
directly or indirectly permits any person to use the land for recreational purposes,
woodcutting or the harvest of special forest products. The limitation on liability
provided by this section applies if the principal purpose for entry upon the land is for
recreational purposes, woodcutting or the harvest of special forest products, and is
not affected if the injury, death or damage occurs while the person entering land is
engaging in activities other than the use of the land for recreational purposes,
woodcutting or the harvest of special forest products.
OR. REV. STAT. 105.682(1) (2007).4 The limitation on liability applies only if the injury or damage
is unintentional and the owner makes no charge for permission to use the land. OR. REV. STAT.
105.688 (2007). The term “owner” is defined in the Act as “the possessor of any interest in any land,
including but not limited to possession of a fee title” and includes “a tenant, lessee, occupant, or
other person in possession of the land.” OR. REV. STAT. 105.672(3)(2007). The term “land” is
defined as “all real property, whether publicly or privately owned.”

OR. REV. STAT.

4

Both parties reference and rely on the version of the Act in effect when Johnson suffered her
injuries on July 16, 2009. As the current version of the Act is not different in any way relevant to
this action and the parties apparently concede that the 2009 version applies to this action, the court
will reference the statutes in effect in 2009 in this Opinion.
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105.672(4)(2007). The legislature explained the Act was enacted to further:
the public policy of the State of Oregon to encourage owners of land to make their
land available to the public for recreational purposes, for woodcutting and for the
harvest of special forest products by limiting their liability toward persons entering
thereon for such purposes and by protecting their interests in their land from the
extinguishment of any such interest or the acquisition by the public of any right to
use or continue the use of such land for recreational purposes, woodcutting or the
harvest of special forest products.
OR. REV. STAT. 105.676 (2007).
Johnson was jogging in the Park when she was injured. Jogging has been identified as a
recreational activity for the purposes of the Act. Conant v. Stroup, 183 Or. App. 270, 282
(2002)(plaintiff, who was injured while jogging on defendant’s land, was using defendant’s land for
recreational purposes). There is no dispute the Park is land covered by the Act or that Johnson was
not charged for her use of the Park. The only question before the court is whether Defendants
qualify as “owners” for the purposes of the Act.
Johnson alleges that the City “owned, operated, and maintained” the Park and that
Defendants “were and are employees of the City of Portland and were responsible for maintenance
and/or repair of the sprinkler system” in the Park at the time of her injury. (Second Am Compl. ¶¶
1, 5). At least one Oregon court has held that those who maintain and operate improvements on land
covered by the Act qualify as “owners” under the Act.
In Brewer v. Dept. of Fish and Wildlife, 167 Or. App. 173, 176 (2000), plaintiffs filed a
wrongful death action against various state agencies, including the Oregon Fish and Wildlife
Commission

(“Commission”),

and

the

Swackhammer

Ditch

Improvement

District

(“Swackhammer”), for damages related to the deaths of two individuals who drowned while
swimming below a fish migration dam. Plaintiffs alleged the defendants were negligent in building
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and maintaining the dam in such a manner that it created a dangerous undertow in which the
decedents were caught, causing injuries which resulted in their death. Id. All of the defendants
moved to dismiss the action claim immunity under the Act. Id. at 177. The trial court granted the
motion and dismissed the case. Plaintiffs appealed asserting that not all of the defendants fell within
the protection of the Act. Id. Plaintiffs conceded the state agency that owned the land on which
the dam was located was covered by the Act but argued that the Commission, who constructed and
owned the dam, and Swackhammer, who maintained and operated the dam, were not “owners” of
the land, therefore, not entitled to protection under the Act. Id.
The appellate court, noting that the definition of “owner” in the Act had not yet been
interpreted by the courts, relied on the case of Denton v. L.W. Vail Co., 23 Or. App. 28, 30-341
(1975), in which the court found that contractors constructing a road on behalf of the federal
government and on land owned by the federal government were “persons in possession of the land”
and, therefore, owners under a previous version of the Act.5 Brewer, 167 Or. App. at 179. The
court then explained that:
[a]lthough the scope of the Act has changed since Denton was decided, the key
language of the definition of “owner” has not. In Denton, we found that those who
were constructing improvements on land were “owners” within the meaning of the
definition found in the Act. If those who merely construct improvements on land
qualify as owners, certainly those who maintain and operate improvements on land
also fall within the scope of that definition. The trial court correctly concluded that
ODFW and Swackhammer come within the ambit of the Act for purposes of
immunity.
Id.

5

The definition of “owner” considered by the court in Denton provided that “‘owner’ means
the possessor of a fee title interest in any land, a tenant, lessee, occupant or other person in
possession of the land.” Brewer, 167 Or. App. 179 n.1.
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Here, Johnson alleges that Defendants were responsible for the maintenance and/or repair
of the sprinkler system in the Park. Accordingly, Defendants are in the same position as
Swackhammer, who maintained and operated the dam. Under the teachings of Brewer, it is evident
that Defendants fall within the scope of the definition of “owner” as defined in the Act and are
entitled to immunity.
Johnson contends that Brewer is distinguishable in that the courts held that state agencies,
not individual employees, were owners under the Act. First, the court identified the defendants as
“numerous state agencies (state defendants) and the Swackhammer Ditch Improvement District
(Swackhammer)”. Id. at 176. The court distinguished Swackhammer from the state agencies,
thereby establishing, at least by implication, that Swackhammer was not a state agency.
Furthermore, the court later noted that Swackhammer does not argue it is an instrumentality of the
state and refuses to express an opinion on whether or not Swackhammer “is, in fact, the type of entity
that may share the state’s immunity.” Id. at 181 n.2. Second, the fact that the court did not
specifically address the issue of whether an individual employee tasked with maintaining land
owned by their employer qualify as an “owner” under the Act does not equate to a finding that such
individuals are not “owners”. The language used in Brewer – “those who maintain and operate
improvements on land also fall within the scope of that definition” – can reasonably be construed
to include the entity charged with maintenance as well as the employees specifically performing such
maintenance. This interpretation is further supported by the fact that the maintenance of land owned
by an entity may only be accomplished through the use of employees and failure to extend immunity
to an owners’ employees defeats the provision of immunity envisioned by the Act.
Johnson also argues that a finding by this court that Defendants are “owners” under the Act
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effectively overrules Judge Jones’s decision on this issue.

A careful reading of Judge Jones’s

decision, and the briefing on the motion before Judge Jones, make it clear that Judge Jones addressed
only the question of whether substitution of the City as the sole defendant under OR. REV. STAT.
30.265(1) violated the Remedy Clause. Judge Jones briefly mentioned the City’s immunity under
the Act as support for his finding that such substitution would leave Johnson without a remedy in
tort, but did not specifically consider whether Defendants would be considered “owners” under the
Act. Accordingly, Judge Jones’s prior ruling is not relevant to nor effected by this court’s ruling.
Finally, Johnson also argues that Brewer is no longer good law in light of the fact it was
issued before Smothers and the acknowledgment in Schlesinger v. City of Portland, 200 Or. App.
593, 600 n.4 (2005), that the operative portions of a number of cases relied on in Brewer have been
“disavowed by the Supreme Court.” The court in Smothers addressed the issue of whether the
exclusive nature of the workers’ compensation remedy violated the Remedy Clause. The question
of who qualifies as an “owner” under the Act was not at issue in Smothers. Similarly, the
Schlesinger court, while considering the issue of whether the immunity provided to the City under
the Act violated the Remedy Clause, did not consider whether the plaintiff had a right to pursue a
negligence claim against the city employees who negligently designed and maintained a park owned
by the City. In fact, the court refused to address the issue because the plaintiff had not named the
city employees as defendants. Neither Smothers nor Schlesinger raise any doubt about the
precedential value of Brewer on the issue of whether employees responsible for maintaining and
operating improvements on land for their employer are properly considered “owners” under the Act.
II. Does Act Violate Remedy Clause?
Having determined that Defendants are entitled to immunity as “owners” under the Act, the
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court must now address Johnson’s argument that such immunity violates the Remedy Clause.
Johnson again argues that because she would have had a cause of action at common law against
Defendants for their negligence in maintaining the Park, the immunity provided under the Act, which
deprives her of any remedy against Defendants, violates the Remedy Clause. Defendants rely on
Brewer to support their contention that the Act does not violate the Remedy Clause.
In Brewer, the court considered the question of whether the Act, which appears to abolish
a right of action against individual landowners for injuries incurred as a result of recreational use of
the individual’s land, violates the Remedy Clause in this scenario. The court first found that the
Act, as applied to public bodies, did not violate the Remedy Clause as the public bodies already
enjoyed sovereign immunity with regard to claims of this nature. Brewer, 167 Or. App. at 183. It
then applied the rule in existence at that time – that the legislature could not “abolish a remedy and
at the same time recognize the existence of a right” without violating the Remedy Clause – and
found that the Act as applied to individual landowners also did not violate the Remedy Clause. Id.
at 183, quoting Hale v. Port of Portland, 308 Or. 508, 519 (1989). The court relied on the policy
statement offered in OR. REV. STAT. 105.676 in reasoning:
[t]he trade-off represented by this policy is manifest. The owner of land opened for
recreational use in accordance with the Act gives up exclusive enjoyment of the land
and, in return, is insulated from certain types of liability for injuries that may occur
there. The users of recreational lands opened in accordance with the Act give up
their rights to sue land owners for certain types of injuries but gain the benefit of
using land for recreation that otherwise would not be available to them.
Brewer, 167 Or. App. at 188-89.

The court held that the legislative choice of “permitting

recreational landowners to limit their liability in the event that they choose to open their lands to the
public for recreational purposes without charge . . . strikes an acceptable balance, by conferring

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benefits and certain detriments on both the landowners involved, and on the recreational users of that
land. We conclude that the Act does not violate Article I, section 10, of the Oregon Constitution.”
Id. at 190-91.
Johnson argues that Brewer is no longer good law, relying on the more recent cases of
Schlesinger, Smothers and Storm. In Schlesinger, the Oregon Court of Appeals considered a claim
against the City for injuries suffered by a pedestrian while walking her dog in a public park. The
court found that the City, as owner of the park, was entitled to immunity under the Act and that the
Act, as applied to the City, did not violate the Remedy Clause because a negligence action against
a city for injuries received in a park was not recognized at common law. Schlesinger, 200 Or. App.
at 599. The court characterized this holding as consistent with Brewer on the liability of the state
defendants, but refused to consider the “detriment/benefit calculus” applied in Brewer with regard
to Swackhammer, which did not enjoy the same immunity as the state defendants under common
law. Id. at 600 n.4. Instead, the court called such analysis into question, considering it was based
on cases subsequently disavowed by the Supreme Court in Storm v. McClung, 334 Or. 210 (2002),
and Smothers.
Both Smothers and Storm addressed the issue of whether the exclusivity of Oregon’s workers
compensation statutes violated the Remedy Clause. The Oregon Supreme Court expressed concern
that it “had not developed a consistent body of law interpreting the remedy clause of Article I,
section 10” and then engaged in an extensive discussion of the history of the Remedy Clause, the
purpose behind it, the proper interpretation of it, and the case law surrounding it. Smothers, 332 Or.
at 90. The court explained the basic purpose of the Remedy Clause “is to protect absolute commonlaw rights respecting person, property, and reputation, as those rights existed when the Oregon
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Constitution was drafted in 1857.” Id. at 118. Consequently, the court disavowed its prior holdings,
“beginning with Perozzi, that the legislature can abolish or alter absolute rights respecting person,
property, or reputation that existed when the Oregon Constitution was drafted without violating the
remedy clause in Article I, section 10.” Id. at 119. Similarly, the court later stated :
If the legislature constitutionally cannot abolish or alter those rights directly, then it
cannot abolish them indirectly by defining narrowly what constitutes an injury to
those rights. We disavow the holding in Sealy that the legislature constitutionally is
authorized to define what constitutes an injury to absolute rights respecting person,
property, and reputation that are protected by Article I, section 10.
Id. at 123. In Storm, the Supreme Court again recognized the lack of clearly established and
consistent case law regarding the Remedy Clause identified in Smothers and specifically rejected the
absence of a distinction between rights existing at common law and those legislatively created.
Storm, 334 Or. at 221. The Storm court explained that:
In Neher, the court, relying on Hale and Noonan, assumed that Article I,
section 10, afforded protection to any cause of action regardless of whether that cause
of action existed at common law or was legislatively created. As the foregoing
analysis demonstrates, that assumption was incorrect. The holding in Neher that the
immunity provision in ORS 30.265(3)(a) that barred plaintiff’s statutory wrongful
death action denied the plaintiff a remedy in violation of Article I, section 10, was
error and is disavowed.
Storm, 334 Or. at 222-23.
The Oregon Supreme Court did not specifically disavow, or even reference, Brewer or the
detriment/benefit calculus applied in Brewer in either Smothers or Storm, despite the fact that the
courts engaged in detailed discussions of the Remedy Clause and other Oregon cases that incorrectly
analyzed claims of various legislative acts violating the Remedy Clause. Additionally, the
Schlesinger court, while noting that the “operative portions of many of the case that we relied on in
our analysis of the plaintiff’s claims against defendant Swackhammer Ditch Improvement District
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have been disavowed by the Supreme Court”, also acknowledged that “[t]he Supreme Court denied
review in Brewer and so Brewer remains good law.” Schlesinger, 200 Or. App. at 600 n.4. In fact,
the Supreme Court denied review of Brewer on October 1, 2002, after it specifically disavowed
portions of cases relied on by Brewer court in Smothers, decided May 10, 2001, and Storm, decided
June 7, 2002. Brewer v. Dept. of Fish and Wildlife, 334 Or. 693 (2002). Had the Supreme Court
been concerned about the ultimate rulings in Brewer, including the detriment/benefit calculus applied
to Swackhammer to support the finding that the Act, as applied to a private landowner, did not
violate the Act, it clearly could have addressed those rulings in Smothers or Storm or by granting
review in the appeal of Brewer. The fact that the Oregon Supreme Court has seen fit to allow the
rulings in Brewer to remain unquestioned in at least two cases in which it expressed concern with
some of the tangential issues addressed in Brewer, and denied review of the ultimate rulings in
Brewer after discussing the Remedy Clause in detail, supports a conclusion that the detriment/benefit
calculus on which the Brewer court relied in finding that the application of the Act to a private
landowner does not violate the Remedy Clause is still good law.
This conclusion is further supported by the reference to, and reliance on, Brewer in two
appellate court decisions rendered after Smothers and Storm. In Conant v. Stroup, 183 Or. App. 270
(2002), the Oregon appellate court relied on Brewer’s discussion of the purpose of the Act and the
trade made by private landowners making their lands available to the general public in exchange for
immunity for liability resulting from use of that property in finding that the Act provided immunity
to private landowners against a claim of negligence filed by an individual injured while jogging on
the landowner’s property held open to the public. Similarly, in Liberty v. Oregon, 200 Or. App. 607,
620 (2005) rev’d on other grounds, 342 Or. 11 (2006), decided en banc after Schlesinger, the court
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rejected out-of-hand the plaintiff’s argument that the Act violated the Remedy Clause relying on
Brewer and the balance of interests, or “ legitimate trade-off” discussion contained therein.
The Oregon courts have clearly and consistently determined that the Act, as applied to private
landowners, permissibly alters a right of action based on a legitimate balancing of competing
interests in which certain benefits and detriments are conferred on both landowners willing to hold
their property open for recreational use and on the recreational users of such property. Accordingly,
the Act, as applied to both public and private landowners, does not violate the Remedy Clause.
Defendants are properly characterized as “owners” under the Act and are, therefore, entitled to the
immunity offered by the Act. Accordingly, Defendants are entitled to summary judgment on
Johnson’s claims for negligent maintenance and repair of the Park. Because the court has found that
Defendants’ are entitled to immunity under the Act, it need not, and will not, address the merits of
Johnson’s claim against Defendants.
Conclusion
Defendants’ motion (#32) to substitute the City as the sole defendant is DENIED. Johnson’s
motion (#39) for judicial notice of Judge Jones’s rulings in the First Action is DENIED as moot.
Defendants’ motion (#34) for summary judgment based on immunity provided by the Act is
GRANTED.
DATED this 14th day of January, 2013.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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