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About Appeal tribune. (Silverton, Or.) 1999-current | View Entire Issue (Oct. 10, 2018)
Appeal Tribune ܂ WEDNESDAY, OCTOBER 10, 2018܂ 1B Sports Will court turn Oregon’s outdoors into ‘nanny state’? Zach Urness Salem Statesman Journal USA TODAY NETWORK On August 19, 2012, Benjamin McCor- mick walked onto a dock at Lake Billy Chinook, leaped into the air, and dove head-first into the water. Two feet below the surface, McCor- mick’s head slammed into a boulder, fracturing his skull, rupturing his spine and forever changing his life. A healthy 23-year-old from Redmond at the time of the accident, he’s been confined to a wheelchair ever since. McCormick sued the Oregon Parks and Recreation Department, which manages a state park at the lake, for more than $43 million. He claimed the agency created conditions leading to the accident and failed to provide ade- quate warning of rocks below the wa- ter’s surface. Initially, the case was dismissed based on the principle of recreational immunity — that you can’t sue the state for most injuries sustained while recre- ating outdoors. “We designed a system that’s as free and open as possible, where we’re not trying to manage how people play out- side,” OPRD spokesman Chris Havel said. “We managed that way assuming the risks people take are their own risks — their own personal decisions — and won’t come back to bite us.” But a series of decisions from the Oregon Court of Appeals, most recently in August, has thrown this concept into doubt, dealing a sweeping blow to the state’s concept of recreational immuni- ty, say officials. The decision could alter the way Ore- gon manages its wildest places, partic- ularly at lakes, rivers and the Oregon Coast. It could lead to “less personal freedom, if we’re having to worry about recreation in terms of legal cost,” Havel said. Could that mean closing the Oregon Coast at night? Giant billboards warn- ing people about every possible risk as- sociated with a swimming hole? Some legal experts don’t think so, and say the state’s concern is over- blown. They say the recent decisions simply open the door to people with a legitimate grievance. But all agree the decisions are having an impact and could tilt the balance to- ward more lawsuits. The best evidence yet is that McCor- mick, injured at Lake Billy Chinook, will get another shot in court. The Court of Appeals reversed the dismissal and or- dered the case to move forward. Others appear to be following. The question that arises is: Will this give individuals a fair shot in court, or turn Oregon’s outdoors into a nanny state? Signs warn people not to travel out on the sandstone bluff at Cape Kiwanda on the Oregon Coast. ZACH URNESS/STATESMAN JOURNAL FILE Hallman, a longtime lawyer in Pendle- ton who specializes in recreational im- munity. Oregon’s legislature adopted the first statute in 1971. The goal was to encour- age private landowners to open their land for recreation without the fear of lawsuits. It allowed timber companies that own vast swaths of forestland to open their lands to hunting, fishing and swimming without worrying about be- ing sued if a person got hurt. In 1995, the state legislature again took up the issue, and again the focus was protecting private landowners. But the legislature also extended the statute to apply to public landowners, including state agencies that manage public lands. That expansion was an important moment for the Oregon Parks and Rec- reation Department, Havel said. “The idea was to reduce the burden of providing free outdoor recreation to the public,” Havel said. “The fact that you can visit a place like the Oregon Coast and we don’t try to dictate how and when you play out there is really one of Oregon’s defining characteristics.” A shield from tragedy? What is recreational immunity? Every state has some form of recre- ational immunity. But the details and how it’s applied often differ, said Gene On June 30, 1996, Pamela O’Connor, her son, and her 9-year-old daughter Caitlin went with a neighbor to Cather- ine Creek near Union. They were headed to a swimming hole used for decades, as far back as pioneers passing on the Oregon Trail. Unknown to the family — because there was no warning signs or fencing — a new fish migration dam had been in- stalled upstream by the Oregon Depart- ment of Fish and Wildlife; it created a dangerous undertow. The dam “looked harmless but (it) trapped swimmers and spun them over and over like a rag doll in a washing ma- chine,” Hallman said. One of the children was caught in the undertow. Pamela O’Connor attempted to rescue the child, but was caught in the undertow herself. Then, 9-year-old Caitlin jumped in and attempted to res- cue her mother, but both died in the or- deal. The family sued the state, alleging they were at fault for not warning people about new dangers at a historically pop- ular swimming hole. The case was dis- missed, even before trial, based on rec- reational immunity. Hallman said the case illustrates how Oregon’s recreational immunity statute has denied families even the chance to argue for relief. “Historically, Oregon has one of the broadest and strictest interpretations,” Hallman said. “It provides immunity to more people and government agencies than just about any other state.” The recreational immunity statute remained a strong defense throughout the late 1990s and into the 2010s, when a combination of cases began to chip away at it. Walking on a sidewalk for recreation, or work? On September 21, 2011, Sheila Landis was jogging down Murray Boulevard in Beaverton when she tripped and fell on a sidewalk that was pitched upward. She fractured her elbow and needed multiple surgeries, according to court documents. Landis sued Washington County claiming it failed to “inspect and main- tain the sidewalk and had failed to warn pedestrians of the sidewalk’s condi- tion.” In its defense, the county successful- ly claimed it was exempt, once again, via recreational immunity. “The county concluded that, because plaintiff was jogging, and her jogging was recreation, the statute’s immunity should preclude her claim against the county,” said court documents. But upon appeal in 2016, something important changed. The Oregon Court of Appeals decided recreational immunity shouldn’t apply to places generally open to the public, like streets or a sidewalk. The law was designed to protect pri- vate landowners that opened their See OUTDOORS, Page 2B Tagging along with Bow and Arrow on the opening day of pheasant hunting Henry Miller Special to Salem Statesman Journal USA TODAY NETWORK CORVALLIS – It’s sort of humbling when your pheasant-hunting compan- ion outguns you, and does it on four legs, and with no shotgun. “My lab catches more birds than I do, sometimes,” said Bill Parks of Salem with a grin. Parks was out Monday for opening day of the fee pheasant hunt at the state’s E.E. Wilson Wildlife Area about 10 miles north of Corvallis along with his two female dogs, Bow, the 11-year-old black lab with a salt-and-pepper muz- zle, and Arrow, an 8-year-old shorthair pointer. “She’s actually caught two in the air,” Parks said about Bow during previous October hunts at Wilson. “She caught one once that was coming right towards me. I couldn’t shoot (for fear of hitting the dog). She got it right out of the air; she caught it in full flight. “And then she caught another one in mid-air.” Arrow got her nom de naissance be- cause of a triangle of white fur, point forward, square in the center of her brow. “She’s got an arrow on her forehead, so I know where the birds are,” Parks about the pointer on his, ahem, pointer. “So I’ve got a Bow and Arrow. She’s (Bow) my retriever, and she (Arrow), she’s my flusher.” Parks, an Oregon Pioneer License- holder, has been a hunter for “60-some- thing years” and been hunting at the 1,700-plus-acre Wilson Wildlife Area for about three decades. He said he appreciated the Oregon Department of Fish and Wildlife’s pheasant-stocking program, the season for which runs October 1 through 31. Licensed hunters with an upland See HUNTING, Page 2B Left to right, Ruby, Cody Carrier of Albany, Cameron Egan of Southern California, Thomas Veley of Portland, Sage, Austin Burnham of Salem and Tess. HENRY MILLER/SPECIAL TO THE STATESMAN JOURNAL
