Johnson v. Gibson

Under the Oregon Public Use of Lands Act, government employees or agents are not "owners" as defined by ORS 105.672(4), and are consequently not subject to recreational immunity from tort lawsuits.

The Court addressed two questions certified by the United States Court of Appeals for the Ninth Circuit: (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land under ORS 105.672-105.700; and (2) if such employees are “owner[s]”, whether the Oregon Public Use of Lands Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution. Plaintiff is legally blind, and, while jogging in a public park in Portland, was injured when she fell into a hole dug by Defendant Gibson to fix a sprinkler. Plaintiff filed against both Gibson and Stillson—the maintenance supervisor in federal court. The district court granted Defendant’s motion to dismiss based on recreational immunity, arguing that “owners” of public land under ORS 105.672(4) are immune from tort liability, and that as employees and agents of the city, they are equally entitled to recreational immunity. Plaintiffs argued that Defendants were not “owners” under the statute, but should rather be merely considered “possessors” or “occupants”. The Court determined that the legislature did not intend to extend immunity to governmental employees and agents under the Oregon Public Use of Lands Act. Accordingly, the Court answered only the first certified question in the negative, holding that such employees and agents are not “owners”.