What is Recreational Immunity?
Recreational immunity is a law that encourages landowners to open lands to the public for recreational use by protecting the landowner if a recreational user seeks damages after an injury. Recreational immunity is important to both public land owners and parks providers as well as land trusts and private landowners who open their lands to the public through trail easements or other allowances.
Access to nature and outdoor recreation provides so many benefits to individuals and communities. However, recreating in constantly changing outdoor environments also carries possible risk of injury. Without recreational immunity, landowners fear the real risk of expensive lawsuits and cannot afford to keep their trails and lands open to the public.
All fifty states in the U.S. have enacted statutes that confer some degree of liability protection to landowners who allow the general public to use their land for recreational purposes. Oregon’s Statute is ORS 105.682.
What Happened in Oregon?
If Oregon has a recreational immunity statute, what’s the problem?
In Fields v. Newport, a woman slipped on a wooden footbridge on an improved trail accessing a beach, and filed a lawsuit against the City. She alleged the City was negligent in maintaining the bridge and not putting up warning signs. Newport responded that it was immune from suit because Fields was using the Ocean to Bay Trail for a recreational purpose. The trial court agreed with the City, ruling that recreational immunity protects landowners from a lawsuit when they open their property to the public for recreational purposes without a fee.
Plaintiff Fields appealed the trial court’s ruling, arguing that the trial court could not conclude that her “principal purpose” (as required under state law) was recreational. The Court of Appeals held that the trial court needed to hold a jury trial to determine whether the plaintiff’s principal purpose on the trail was recreational. On October 5, 2023, the Oregon Supreme Court officially declined to review the Court of Appeals’ decision in Fields. This action, called “review denied” upholds the Oregon Court of Appeals’ decision striking down recreational immunity for paths to recreational areas.
The Consequences
In November 2023, CityCounty Insurance Services issued a memo advising local governments to close improved trails used to access recreation areas, “particularly trails, walkways and stairs used to access bodies of water, such as the ocean, lakes, rivers, streams and reservoirs” and to “consider closing unimproved trails, because the subjective intent of the user can now nullify recreational immunity, which means if someone is injured on an unimproved trail, the city or county may find itself facing a costly jury trial to determine the injured person’s intent in using the trail.”
Some local governments have proceeded to begin closing trails, and other land managers are scrambling to decide how to address this new level of liability.
The Solution
The recreation community agrees with Oregon’s land trusts, cities, counties, and park districts that the solution required by current circumstances is a legislative fix during the 2024 legislative session to restore recreational immunity to Oregon.
Oregon Trails Coalition is helping lead the charge by working with our partners across Oregon under the Protect Oregon Recreation banner to bring attention to the issue and encourage law makers to Protect Oregon Recreation by restoring recreational immunity in Oregon with new language that provides clear protections for land managers that open their lands to the public.
What You Can Do Now
We will be sharing opportunities in the coming months to connect with lawmakers and let them know how critical open trails are for health, wellness, and strong Oregon communities.
There are actions you can take right now:
Donate to support our work with Protect Oregon Recreation to build a strong presence in Salem to defend Oregon's trails.
Help us show the widespread support for restoring recreational immunity by joining the list of Protect Oregon Recreation partners.
Learn more about the Recreational Immunity issue in a lunch hour webinar we're hosting on January 30th.
Email your legislators to let them know you want to see a fix to Oregon’s recreational immunity law in 2024 that clearly provides protections for all land managers that open their lands to the public for recreation free of charge and that clearly applies to both improved and unimproved trails.
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