2023 Changes to Recreational Immunity & Liability
Q: What happened to the recreational immunity defense regarding paths and trails, and what are the legal implications?
On July 6, the Oregon Court of Appeals issued an opinion in the
Fields v. City of Newport case, effectively ending recreational immunity for improved trails and striking it down as an “immunity” that protects public and private landowners from lawsuits. The City of Newport asked the Oregon Supreme Court to overrule the Court of Appeals and restore the portions of recreational immunity that were lost. On October 5, 2023, the Oregon Supreme Court officially declined to review the Court of Appeals’ decision in Fields. This action, called “review denied” functions as a de facto endorsement by the Oregon Supreme Court of the Oregon Court of Appeals’ decision striking down recreational immunity for paths to recreational areas. Read more about this case in our
Nov. 2023 issue of Real-Time Risk.
Q: What does the change with recreational immunity mean to local government?
Unless the Legislature steps in, from now on when a person suing the city claims that their subjective intent was not primarily to recreate, then recreational immunity does not apply at the beginning of a suit. Instead, the municipality (or private landowner) will have to defend the lawsuit all the way through a jury trial so the jury can decide what the plaintiff was thinking about their “primary intent.”
We encourage our members to reach out to their legislators and ask that they step in and restore this protection.
Q: Why is CIS recommending local government close trails? This will be unpopular and seems impossible.
CIS understands this recommendation will not be popular. Weighing many factors and with a focus on the solvency of the trust and our members, this recommendation was determined to be the best course of action.
The tasks required to close access ways to recreation areas might seem daunting. Once the Oregon Supreme Court’s decision was made, it was determined that less aggressive measures would fail to meet the goal of protecting the trust and our members.
We suggest our members use all avenues of communication to alert the community of changes with their paths and trails. Social media messaging will reach a broad community audience. Update entity website information about parks and trails with any changes you are making. Prioritize the installation of signs based on factors such as areas of higher risk, with the heaviest volume of users and where signs will have optimal visibility.
Discretionary Immunity
Q: We expect a lot of pushback if we close paths and trails; this is a last resort. Is there any way discretionary immunity can close the gap?
No, these are two distinctly different forms of protection, and discretionary immunity will not take the place of recreational immunity. Nevertheless, having your entity shore up its discretionary immunity position is always a prudent decision and may provide some shelter from liability claims. For effective use of discretionary immunity, we recommend an asset inventory, audit, a prioritized maintenance plan, activation of that plan, and periodic update and review of these steps. You can get started with the
CIS Discretionary Maintenance Plan and Audit.
Q: If the council doesn't explicitly approve a planned course of action, does discretionary immunity apply?
Discretionary immunity applies most clearly to a course of action, such as a street or park maintenance plan, when a governing body votes to approve or adopt the plan. However, discretionary immunity can also apply to a policy decision made by a department head — especially when there’s documented evidence that the department head is expressly authorized to make those policy decisions. If putting together a park maintenance plan is within the job duties of a public works director, for instance, then discretionary immunity should apply to any claim that the city or county should have adopted a different maintenance plan with different priorities.
Q: Any suggestions for how to get policymakers to understand the importance of approving deferred maintenance in a plan when they’re concerned about the political message it may send?
We recommend educating your elected officials on this subject. It’s understandable that elected officials are concerned about “the optics” of a maintenance plan that acknowledges there is not enough money to perform all the maintenance a city or county would like to get done. However, this plan could also be used to educate voters about where the maintenance dollars are being spent and demonstrate that additional revenues would be put to good use — keeping the community safe. There are positive “optics” to that message as well.
Maintenance, Inspection, and Documentation
Q: What constitutes an improvement? A bench? Cutting weeds?
CIS recommends leaving natural areas alone. If an entity has made an improvement, such as a bench, it should be inspected and maintained. Weed control and insect control are not protected by recreational immunity; the member should follow their written programs.
Q: What if the improvements were not done by the member but rather by the general public?
If the member did not make the improvements and there is no expectation that the member will maintain the improvements, then there is no duty to inspect or maintain. Except with the recent change to paths and trails, recreational immunity should apply.
Q: We contract the bulk of our maintenance. The parks department oversees the contract. How does this affect our liability?
If you contract your maintenance and that contract has solid hold harmless, indemnity, and insurance provisions, this would be an excellent way to transfer your risk.
Q: When we do inspections of equipment (playgrounds, swings, walkways, etc.), do we need to list everything and show what's good or bad, or can we list the equipment or structures that need maintenance?
The more documentation the better. It would be preferable to list each piece of equipment in the park, facility, or structure and the key maintenance parts. As a best practice, each piece of equipment or part is inspected. Those parts not passing are repaired or closed until repairs are made. We recommend inspection of each risk point on a routine basis.
Q: Our maintenance staff does not want to inspect or document in fear of being named in a lawsuit. Will not documenting inspection or maintenance avoid employees from being named in lawsuits?
The reality is employees will be named in lawsuits regardless of whether issues are documented or not. In a lawsuit, depositions will be taken of supervisors and employees. Any known and undocumented maintenance will make the case less defensible. The best defense is to show a pattern of documented inspection and repair to demonstrate a reasonable maintenance program.
If the city/county is insured with CIS, then even though the city is legally obligated to defend its employee, CIS will cover the cost of that defense.
Q: Must we enforce rules on signs?
You are not required to have enforcement staff to ensure sign compliance. A best practice is to have elected officials make a policy decision not to attempt to enforce sign warnings to provide discretionary immunity defense.
CIS Coverage
Q: What kind of defense will CIS provide if the employee is found to be negligent?
The CIS Liability Coverage Document provides defense coverage and pays any judgments for an employee’s negligence. The Oregon Tort Claims Act requires public entities to defend and indemnify employees for the employee’s negligence while acting in the course and scope of employment.
Q: Will contributions increase because of the loss of recreational immunity on paths and trails?
CIS is evaluating this exposure, and no decisions on rate increases have been made. The Board will make decisions regarding future increases, and it will likely depend on the frequency and severity of claims.
Additional Information
Recreational Immunity for Parks, Best Practices and Signage
Recreational immunity is still a defense for parks and other recreation areas. It’s best practice to have warning signs and an inspection and maintenance plan for parks. Having an inspection and maintenance plan approved provides a defense of discretionary immunity.
Appropriate signage is a best practice. Some phrases to consider:
- Oregon law (ORS 105) provides the landowner is not liable for injury, death, or property damage that arises out of the use of the land for recreational purposes (known as “recreational use immunity”).
- Falls at this location could result in severe injury or death
- Rough surface
- Watch for falling rock
- Water is stagnant and not tested for hazardous conditions
- No lifeguard present
- Possible dangerous conditions
- Entering a free recreational area
- Enter at your own risk — be warned of potential injury or death
- List possible dangerous conditions
Additional language for signs:
Until further notice, all paths, walkways, stairs, and any other improved or unimproved access ways to recreation areas are closed. Use of these areas is not permitted, and anyone using these areas does so at their own risk. (Include a note where the recreator can find additional information.)
Additional information to post on your entity's website and/or on social media:
Oregon law (ORS 105, known as recreational immunity) provides that a landowner is not liable for injury, death, or property damage when their land is used for recreational purposes at no charge. This statute provides some protection to owners of recreational land. Recent Court of Appeals and Oregon Supreme Court decisions have struck down some of the Legislature's recreational immunity statutes. Faced with the loss of this protection, recreational landowners have been forced to make difficult decisions. After seeking advice from professionals and considering different options, the (entity) has deemed it necessary to close paths and all other access ways to recreational areas. (Entity) resources are not available to physically close and block all access to recreational areas and enforce this notice. All users of (entity) must follow all posted rules.
We encourage everyone to contact their state representative and encourage legislative changes to restore recreational immunity.
