McCormick v. State Parks & Recreation Dept

"Except as provided in subsections (4) to (7) of this section, the immunities provided by ORS 105.682 (Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products) do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products." ORS 105.688(3).

After an injury at a state park, McCormick brought this negligence action against the State. The State raised the defense that McCormick’s presence at the park was unpermitted. On appeal, the Oregon Supreme Court determined that the State in fact “permitted” McCormick’s use. On this remand, the Court of Appeals examined the State’s alternative argument that they are entitled to “recreational immunity.” McCormick argued that there should be further discovery before the court reached that issue. Under ORS 105.688(3), the general rule is the State cannot avail itself of “recreational immunity” if they required “any charge for permission to use the land for recreational purposes.” The meaning of “charge,” however, does not include parking fees that fall below $15 per day. ORS 105.672(1)(c). The Court found that the parking fee that the State charged McCormick did not qualify as a “charge” because it amounted only to $5. Here, further discovery would be pointless because the purpose and manner of the fee collection do not bare on the plain meaning of a “parking fee.” Therefore, the Court held that the State may raise recreational immunity. Affirmed.