The cliffs at Yaquina Head, near Newport, Oregon, on March 16, 2023. A 2019 lawsuit that originated in Newport has called Oregon's recreational immunity law into question, causing cities up and down the coast to close trails for fear of liability.
Jule Gilfillan / OPB
The Oregon Public Use of Land Act protects local governments from lawsuits if someone is injured while recreating on public land. But a 2019 lawsuit threw the “recreational immunity” law into question when a judge sided with a Newport woman who sued the city after slipping on a wet footbridge.
Since walking, running and bicycling aren’t explicitly included in the recreational activities protected by the law, cities and counties across the state have closed trails and bike paths to avoid liability. Senate Bill 1576-3 would fill the gaps in the law’s language to keep public spaces open.
Rep. David Gomberg, a Democratic state lawmaker whose district covers Lincoln County and parts of western Lane and Benton County, joins us with more details on the bill and what it could mean for Oregon’s public lands.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In 2019, a woman in Newport broke her leg after slipping on a trail bridge. That led to a lawsuit that slowly made its way through the courts. In July, the Oregon Court of Appeals released a ruling in the case that sent shockwaves throughout the state. Cities and counties say that it increased their legal liability, forcing them to close walking trails and bike paths. Lawmakers have jumped into action in response. They say that Senate Bill 1576 would fill in some newly created gaps in state law and make it so the public still has access to public spaces. David Gomberg is a Democratic state representative from Lincoln County and parts of Lane and Benton Counties. He joins us now. Welcome back to the show.
David Gomberg: Well, very pleased to be back with you and all of your listeners. And thanks for your interest in this important subject.
Miller: The issue at the heart of this is a phrase that I hadn’t heard of I don’t think, and probably many of our listeners haven’t as well: recreational immunity. What is this?
Gomberg: Well, Oregonians love their open spaces. They love the outdoors. And in order to protect access to our beaches, to our hiking trails, to our biking paths, Oregon adopted a statute that says that if you should be injured using one of these open spaces, you can’t sue the property owner if you’ve had an accident. And that’s intended to make sure that we keep these spaces open and available to Oregonians. And that’s called recreational immunity.
Miller: Is the basic idea that a city or county just doesn’t have the money to make these places so safe? Or maybe, in some cases, it’s physically impossible to make them 100% safe. But they don’t have the ability to make them so safe that no one will ever get injured, and they don’t have the money to defend themselves and to pay millions of dollars in lawsuits if people do get injured. Is it that simple that that’s where this immunity comes from?
Gomberg: Well, of course we want our trails, our beach accesses, our biking paths to be safe. We all want that. But if somebody should be injured, there is a huge liability in question, and that requires our counties, our cities, and private landowners to start making decisions about whether they’re going to make these spaces available. Imagine how many beach access points there are along 300 miles of oceanfront here in Oregon. And can we monitor and protect and safeguard all of them?
Well, this court case came down, and maybe we should talk a little bit about the case. The decision was that a woman was going out to walk her dog and was heading toward the beach and had this unfortunate accident on a bridge on her way to the beach. And the courts have now suggested that maybe she wasn’t recreating on her way to the beach, that maybe recreation began when she arrived at the beach. That’s what really threw the shockwaves through our entire outdoor community because now the suggestion is that every one of these situations needs to be adjudicated, needs to go to trial to find out whether a person was actually recreating when they had their accident. That’s a big deal.
Miller: And before the key point here, I should just take one step back. A trial court, first, did find that this woman who had the broken leg, could not bring suit because of the recreational immunity that covered the situation. And then the Appeals Court in July disagreed saying, “No, this can go forward.” And the Oregon Supreme Court did not choose to take this up. So the ruling from the Appeals Court stands. How did insurance carriers, the biggest ones in the state that offer insurance to a lot of cities and counties, interpret this ruling?
Gomberg: Well, they wrote to cities and counties and said, “We encourage you to start closing your trails.” And a lot of them did. According to the Oregon Coast Visitors Association, more than 20 trails have been closed to the public since this ruling came out. And the insurance carrier is saying that you’re open to liability. But even when that liability is not assured, we’ve still got the court costs to deal with. So rather than just simply dismissing a case outright, it’s going to have to go to trial to find out whether there was any recreation involved.
Miller: I want to read a statement from the Oregon Trial Lawyers Association. We asked if they wanted to come on the show. They declined to make someone available for the interview, but they did give us this statement:
“Recreational immunity further reduces the financial incentive for cities, counties and the state to keep our families and communities safe. They will now have no responsibility to maintain safe trails, bike lanes, and parks.This ultimately benefits insurance companies who don’t want to pay claims. For example, children harmed by poorly maintained playground equipment or bike riders injured on hazardous pathways will now have no way to be compensated for their medical bills or injuries due to shoddy maintenance or neglect. This bill is just another example of government shirking its duty to its citizens. Oregonians deserve better.”
I’d like to give you a chance to respond to some of these specific points here. For example, that there will be no way for people to hold, say, a city accountable if a child is harmed by poorly maintained playground equipment?
Gomberg: Well, you know, it’s interesting that my friends, the trial lawyers, submitted this statement to you when earlier today we had a hearing on this piece of legislation and they did not appear. But that being said, I think that cities do have a responsibility. The question here is whether they have legal liability. And that’s a different question. Cities have a responsibility to maintain playground equipment and bridges and hiking paths and trails. But legal liability? That creates a scenario where they have to start choosing which facilities to better maintain to that higher level of safety. And they’re going to start closing down the ones that they can’t maintain to that higher standard.
Miller: How do you enforce or get any city or county to live up to its responsibility without the threat of a lawsuit, without the legal liability? I mean, is it just a kind of honor system?
Gomberg: Well, honor is a good thing. But, you know, at the end of the day, we have these other things called elections. And we hold our city and county leadership accountable at elections for the decisions they make. I think that’s the standard we’re looking at in this case is that we expect cities and counties to do their jobs. But we’re not holding them to that higher standard where they can be sued and put our trails and beach access off limits if they don’t.
Miller: The trial lawyers have also said that cities are overreacting; that yes, insurance companies gave them this advice but they said the Appeals Court simply sent this back to the trial court and a jury could very well find for the city. What do you say to that? That this is putting the cart before the horse and let’s see how this case works out and it may be that nothing really effectively has changed?
Gomberg: Well, there’s that potential, but the message here is that each one of these different cases needs to go to court to decide whether it can move forward, rather than being dismissed outright before the expense of that trial. And my understanding is that since the case in Newport, there have been several different cases filed on similar sets of facts that are moving their way through the courts now.
Miller: I want to go back to what you were saying earlier about elections as the ultimate version of accountability in our system. Let’s say that someone didn’t slip on a footbridge, but that at some point in the future, there’s a bridge on a trail collapses and someone falls down and gets injured, falling into the stream. Would you say that that person shouldn’t have a right to sue the county that maintained that bridge? But their recourse is to vote out members of the county commission in two years?
Gomberg: Well, let’s start with this, Dave. I’m a legislator but I’m not an attorney. But that being said, my understanding is that there’s a difference between ordinary negligence and gross negligence. And should a bridge be maintained in such shoddy condition that it collapses, there’s a whole different legal standard that applies. And the recreational immunity is the standard we’re using for ordinary negligence, not gross negligence. Now again, that’s my understanding. And I say that from a layman’s point of view.
Miller: Just finally, my understanding is that this bill in this short session, there are only a few weeks left in it, that you and others have seen it as a kind of stop-gap. I mean, if I understand it correctly, it is adding words like “hiking” and “walking,” or “biking” to be included as recreation, to be under the definition specifically of recreation. What might you push for in a future session? I mean, what do you see as the principles of a fuller solution?
Gomberg: Well, you’re absolutely correct. This measure that’s working its way through the legislature, Bill 1576, is a stop gap measure. It basically reinstates recreational immunity through July of 2025. Why July of 2025? Because that’s when the next long legislative session ends. And what it’s doing is giving us time to really dive a little deeper and address the important question that you’ve raised today about how we protect public safety as well as public access to these really very important open spaces. We’re going to take the time to dive deeper to come back with the answers and pass legislation in 2025 for a longer term fix.
Miller: David Gomberg, thanks very much.
Gomberg: Pleasure.
Miller: David Gomberg is a Democratic State Representative from Lincoln County and parts of Lane and Benton Counties.
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