From the Desk of Josh Hayward:
Recreational immunity was created to promote the opening of land for recreational use by the public. The goal is to allow landowners to let the public use their land for recreation without fear of being liable for personal injury, death, or property damage that may occur on their land. This immunity can be lost if the landowner charges a fee to use the land. But what is considered a charge for permission to use the land?
The Oregon Appellate Court was faced with the question of whether the state lost its immunity by requiring the plaintiff to have a permit to operate his ATV in order to use the state’s recreational ATV trails. The Court held that the ATV permit fee was not a quid pro quo exchange for the permission to use land, and thus the state still had recreational immunity.
Stedman v. State, 316 Or App 203 (2021).
Plaintiff, owner of an ATV, bought an ATV operating permit from the Oregon Parks and Recreation Department (OPRD). On August 19, 2017, plaintiff went to the Beaver Dam Stockpile area of the Tillamook State Forest. He did not pay anything on that day to go into the area. This area had trails designed for recreational ATV use. Plaintiff took his ATV past a gravel pile that was “coned off” and then up another gravel pile that was not “coned off”. He was unable to stop at the top of the gravel pile and fell 15 to 20 feet, seriously injuring his shoulder. Plaintiff then filed suit alleging that the state was negligent in failing to warn, “cone off”, or close the area. The state filed a motion for summary judgment based on recreational immunity under ORS 105.682(1). Plaintiff argued that the state was not immune because the fee he paid for the permit constitutes a charge for permission to use the land under ORS 105.672(1) therefore rendering immunity inapplicable under ORS 105.688(3). After a hearing, the Court determined that the ATV permit was not a “charge” to use the land for recreational purposes but merely a permit to operate the ATV.
ORS 105.682(1) provides immunity to owners who open their land up for recreational use. In relevant part, it provides “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…when the owner of land either directly or indirectly permits any person to use the land for recreational purposes…” There is an exception to this immunity within ORS 105.688(3), which provides “the immunities provided by ORS 105.682 do not apply if the owner makes any charge for permission to use the land for recreational purposes…” The term “charge” is defined in ORS 105.672 as “the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.” (Emphasis added).
ORS 390.580 is the statute that requires an ATV operating permit. The statute provides: “(1)(a) An all-terrain vehicle off-road operating permit issued under this section is a decal that authorizes use of the all-terrain vehicle for which it is issued on trails and in areas designated for such use by the appropriate authority.”
The Oregon Court of Appeals examined the text of these relevant statutes to determine whether the fee for the permit to use an ATV can be characterized as a “charge” in return for permission to go onto the land where plaintiff was injured.
The Court disagreed with the plaintiff’s contention that the ATV permit fee was a charge for permission to use the land because the Oregon Department of Forestry, which owns lands opened to ATV use, receives funds from an OPRD ATV account. The Court held, in short, that the ATV fee only serves a set of statewide purposes that is larger than an “admission price or fee” paid “in return” for a particular landowner’s “permission” to “go upon the owner’s land.” See ORS 105.672(1) (defining “charge”). The Court highlighted that ORS 390.580 does not describe the particular lands where the permits apply but is written broadly and applies to wherever an “appropriate authority” opens its land for ATV access.
Continuing their analysis, the Court compared the ATV permit fees to motor-vehicle registration and small noncommercial watercraft registration. The Court observed that although payment is involved in a motor-vehicle registration fee, it would not be characterized as an “admission price or fee” paid “in return for the permission” to go upon “the owner’s land.” See ORS 105.672(1) (defining “charge”). Additionally, while the same registration scheme exists for noncommercial small watercraft for use “on the waters of this state,” it would also not be considered a fee paid “in return for the permission” to use the waters. See ORS 830.775 (small watercraft registration).
The Court found that the language of the applicable immunity statutes calls for a quid pro quo exchange and does not require particular land to be involved. If the permit was an exchange of money for permission to use the Tillamook State Forest, then it could be considered a “charge”. In this case, the state did not “request or expect” an “admission price or fee” which is “in return” for “permission” to use “the land”. Rather, plaintiff was charged a fee for an ATV permit for the potential use anywhere an ATV is permitted by any appropriate authority. Thus, the Court concluded that the exception to recreational immunity does not apply to the ATV permit fee.
The Big Picture:
It is important to determine whether a permit or registration fee reflects a quid pro quo arrangement or pertains to a specific area of land. This determination can make or break the defense of recreational immunity under ORS 105.682(1).