BAKER CITY — A pedestrian’s slip more than four years ago on a bridge leading to an Oregon beach could potentially cause at least temporary closures of city- and county-owned trails and other recreation sites in Northeast Oregon and across the state.

The incident likely will result in new signs being installed, including on trails that remain open.

And cities and counties might also need to adopt ordinances that aim to establish liability protection under a state law.

The implications of that tumble in 2019 on the Ocean to Bay Trail in Newport involve what’s known as “recreational immunity.”

An Oregon law, ORS chapter 105, includes provisions which protect cities, counties and state agencies, as well as owners of private property, from liability when people are injured while using a “trail or structures in public easement or right of way.”

(The legal tussle stemming from the 2019 fall in Newport, which centers around the state law, does not appear to affect land managed by federal agencies, including the U.S. Forest Service and Bureau of Land Management, said Larisa Bogardus, public affairs officer for the BLM’s Vale District, and Walter Lowell, public affairs officer for the Wallowa-Whitman National Forest.)

According to the League of Oregon Cities and CIS Oregon, the latter of which provides liability insurance to cities and counties, recreational immunity can protect landowners, both public and private, when their land is used for recreational purposes and at no cost.

But that protection is in legal limbo due to the Newport case, said Steph Noll, director of the Oregon Trails Coalition, a group that advocates for public access to trails.

The issue could have wide-ranging effects due to the popularity of trails managed by cities, counties and the state, Noll said.

In a recent survey of Oregonians, 74% of respondents said they use local trails, she said.

“Right now there’s just a lack of clarity,” Noll said. “We really want to remove that uncertainty that exists, so landowners know where they stand.”

She hopes the Oregon Legislature, which convened Monday, Feb. 5, in Salem, will amend the state law to alleviate concern among officials in cities and counties that leaving trails open could result in expensive lawsuits.

Scott Winkels, a lobbyist for the League of Oregon Cities, agreed.

“Cities are really looking forward to the Legislature providing some clarity,” he said. “I think a lot of cities are waiting to see what the Legislature does.”

The lawsuit

Nicole Fields sued the city of Newport in October 2020. In January 2019 she slipped on a wooden bridge the city owns, and broke her leg.

The city’s attorneys filed a motion in July 2021 seeking summary judgment — in effect, asking to have Field’s complaint dismissed.

Newport’s attorneys cited ORS 105.682, which reads in part that a landowner, whether public or private, “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, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.”

Another section of the law, 105.672, defines “recreational purposes” as including, but not limited to, “outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.”

Fields, however, contended that she was using the city-owned bridge not for recreational purposes, but to get to and from the beach. She sought $345,000 in damages — $250,000 in non-economic damages, $80,000 for medical expenses and $15,000 for lost wages.

In October 2021, Lincoln County Circuit Court Judge Marcia Buckley granted the city’s motion to dismiss the complaint based on the recreational immunity law.

Fields appealed the judge’s ruling in November 2021, and in July 2023 the Oregon Court of Appeals overturned the trial court’s ruling. The appeals court judges concluded that a question existed as to whether or not Fields was using the bridge for recreational purposes. Given the uncertainty, the appeals court ruled, the city’s defense based on recreational immunity was a matter to be decided at trial rather than by summary judgment.

The city’s attorneys subsequently asked the Oregon Supreme Court to review the appeals court ruling, a request the League of Oregon Cities supported.

But on Oct. 5, 2023, the Supreme Court declined to review the appeals court’s decision.

The result, according to CIS Oregon, is that recreational immunity, as previously understood, is no longer in effect.

“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,” according to a fact sheet on the CIS Oregon website.

The legal case hasn’t concluded, however.

Lawyers representing Newport on Jan. 25 filed a second motion for summary judgment, citing a different part of ORS Chapter 105.

The motion reads in part: “The Court of Appeals decision established for the first time that objective evidence of a plaintiff’s recreational purpose may be disputed by plaintiff’s subjective purpose. Given that this analysis was a novel approach to the statute, it was not briefed in the City’s previous motion for summary judgment. The City now requests the Court grant it immunity under an alternative statute — ORS 105.668.”

The city’s lawyers note in their new motion that the Oregon Legislature adopted that section of Chapter 105 in 2011. The lawyers claim lawmakers did so to extend immunity from liability to certain trails even when they’re used for purposes other than recreation.

Newport’s Ocean to Bay Trail and the bridge on which Fields slipped qualify for legal immunity based on ORS 105.668, the city’s lawyers contend in the motion.

“The Oregon Legislature adopted ORS 105.668 to extend immunity to improved trails and bridges used for transportion — exactly the circumstances we have with Plaintiff’s version of the facts in this case,” the Jan. 25 motion for summary judgment states.

Cities and counties respond

While the legal maneuvers continue on the Fields v. Newport case, the League of Oregon Cities and CIS Oregon have recommended cities and counties consider taking action to protect themselves from liability if someone gets hurt on their trails.

Those recommendations include closing improved trails used to access a recreational area, as well as closing unimproved trails.

On the coast, Tillamook County has closed two trails, both of which are in need of repairs.

Chris Havel, deputy director of government relations and policy for the Oregon Parks and Recreation Department, said on Wednesday, Jan. 31, that the state is following the Fields case closely but has not closed any trails as a result and does not intend to do so.

Havel noted that state agencies are self-insured, with legal representation through the Oregon Department of Justice, while cities and counties are privately insured, typically through CIS Oregon.

The legal uncertainty stemming from the Fields case could potentially affect the public paths that several cities have built in Northeast Oregon.

In Baker City, that path is the Leo Adler Memorial Parkway, a roughly 2-mile paved trail that follows the Powder River through town and is open to pedestrians and bicyclists.

Joyce Bornstedt, the city’s public works director, said she has no intention of closing the path or restricting access to it.

“We’re still researching it,” she said. “I will be monitoring what these other cities are doing. I don’t see closing trails as a viable option.”

Bornstedt noted, though, in reference to the central aspect of Fields’ lawsuit — that she was not using the Newport trail for recreation — that this could potentially be a relevant issue for other cities and counties.

Bornstedt said she knows many Baker City residents who use the Leo Adler Memorial Parkway as a route to work, not strictly for recreation.

Bornstedt said she is considering applying for a grant from CIS Oregon, which is the city’s insurance company. CIS announced in January that it is offering grants of up to $5,000 for cities and counties to improve trails, install signs or help with drafting and passing an ordinance that could protect jurisdictions from liability while the validity of recreational immunity as a defense to lawsuits is uncertain.

She concedes that the wording on the signs the city might install “sounds silly.” Such signs would state that the riverside path is for recreational purposes only, and that people using it for other purposes would do so at their own risk.

As for an ordinance, that has to do with wording in ORS 105.668 — the same section of Chapter 105 that Newport’s attorneys cited in their recent motion seeking to dismiss Fields’ lawsuit.

That section of the law, which the Legislature adopted in 2011, provides immunity from liability for cities with a population of 500,000 or more. In Oregon, only Portland meets that threshold.

But the law also states that other cities and counties can qualify for the same immunity by passing an ordinance or resolution.

Newport’s city council had approved such an ordinance prior to Fields’ injury in 2019.

Neither Baker City nor Baker County has such an ordinance.

In a recent posting on its website, CIS Oregon wrote that “we are optimistic that (Newport’s) ordinance will have a favorable influence on the continued efforts challenging the appellate court ruling.”

Doni Bruland, Baker County’s parks director, said she plans to install signs at the county’s Hewitt and Holcomb parks, on Brownlee Reservoir near Richland, this spring. The signs will emphasize that walkways in the parks are for recreational purposes.

Bruland said county officials have also discussed the possibility of adopting an ordinance similar to Newport’s.

But for now, she said, the county is waiting to see if the Legislature takes action regarding recreational immunity during its session that starts Feb. 5.

“It’s hard to know these days, with litigation, what’s going to happen,” Bruland said.

Legislative remedy

Noll, director of the Oregon Trails Coalition, said she believes the Legislature changing wording in Section 105 is the key to restoring recreational immunity and avoiding potential trail closures.

Such wording is part of a civil omnibus bill that she hopes will be introduced before lawmakers gather next week in Salem.

“Our goal for this legislative session is to see language that clearly provides protection for both public and private land open to recreational use free of charge,” Noll said.

She believes an amendment to ORS Chapter 105 is needed even if Newport ultimately prevails in the Fields lawsuit.

Without such a change, Noll said she fears that cities and counties, as well as private landowners, will be “reluctant” to allow recreation or to build or improve trails.

Noll said that although she understands why CIS Oregon is offering grants to help cities and counties protect themselves from liability, she would prefer that local governments use their limited budgets not to post signs or draft ordinances, but to improve existing trails and potentially build new ones.

Pendleton/ Umatilla County

Liam Hughes, director of Pendleton’s Parks, Recreation and Cemetery Commission, said the current situation isn’t the first in which lawsuits have threatened recreational immunity.

Hughes referenced a Portland case in which a jogger fell in a hole and was hurt. Although the jogger sued the person who dug the hole rather than the city, Hughes said the case effectively nullified recreational immunity until the Legislature closed a loophole to protect individuals from such suits.

The Fields v. Newport case is different, though, Hughes said, because it challenges Chapter 105 based on the notion that a trail user who is injured can sue if the person’s purpose wasn’t recreation, as Fields claimed.

Hughes is skeptical of that interpretation.

“But I’m a layperson,” he said. “I’m not an attorney. But I think 90% of the general public would read the law the same way that I do that none of those challenges that we’ve now seen to recreational immunity ever existed. But the courts have allowed (Fields’) suit to continue based on those challenges, which again basically puts recreational immunity in limbo and it really doesn’t exist right now.”

Hughes said changes to the law are the obvious remedy. He said the Oregon Parks and Recreation Association, of which he is a member, is advocating for the Legislature to take action.

“We’re kind of watching very closely to see what happens at the Legislature this year and what happens with the lawsuit as it progresses,” he said.

In the meantime, the legal limbo is a concern in Pendleton, which has more than 25 miles of trails, including the popular Pendleton River Parkway on the levee on the south side of the Umatilla River, Hughes said.

He’s also concerned that the same legal claims Fields made in the Newport case could be applied to “other recreational amenities.”

Hughes said another potential option for Pendleton is to amend the city’s parks ordinance “to make it clear that our parks and recreation facilities are provided for the purpose of recreation.”

Umatilla County Commissioner Dan Dorran said a legislative fix to the recreational immunity issue is a priority for the Association of Oregon Counties.

“If it were to stand as it is now, I think that you would see municipalities and counties closing the trails, and none of us wants to do that,” Dorran said.

He said there are few county-owned trails, but county officials have discussed possible trails along the Umatilla River and at Harris Park, on the south fork of the Walla Walla River about 14 miles southeast of Milton-Freewater.

Wallowa County

Wallowa County Commissioners Susan Roberts, Todd Nash and John Hilllock intend to discuss the Fields case, and its potential implications for recreational immunity, during a future meeting.

Commissioners mentioned the issue during their Jan. 17 meeting.

Nash said he’s concerned about possible effects on a rural county such as Wallowa.

“Do you shut your fairgrounds down? Do you shut down other things? I don’t know,” he said. “I can’t live my life reacting to bad news.”

But he said the entire board will have to discuss the matter.

La Grande

La Grande has not closed any trails, according to Stu Spence, the city’s parks and recreation director. He said that city officials have decided to wait and see what comes out of the Legislature during the short session starting Feb. 5.

Spence said the city is planning an expansion to the Riverside Park greenway in the spring, so workers might put up additional signage along the route in conjunction with that project.