Media

On February 2, the Oregon Court of Appeals issued its decision in Hill v. Kralman, A140040, upholding the immunity defense raised by a landowner who had granted an easement to a snowmobile group to use his property. The easement ran perpendicular to the landowner’s private access road to the highway. Plaintiff Randall Stewart, now deceased, had sued the landowner after Mr. Stewart ventured off the snowmobile trail and onto Mr. Kralman’s access road. Apparently because of either the depth of the snow or the speed of the snowmobile (the opinion is unclear why), Mr. Stewart unfortunately struck a heavy cable stretched across the access road (meant to exclude trespassers from the adjoining highway), and severely injured himself. The cable was not marked, and no warnings were posted, but it appears clear that the cable was not located on the easement.

Oregon has a recreational landowner immunity statute that provides blanket immunity where the use of recreational land leads to injury to recreational users, and does not arise from the landowner’s intentional conduct. ORS 105.682(1) (“Except as provided by subsection (2) of this section [excluding intentional acts from immunity], and subject to the provisions of ORS 105.688, 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”). Alternatively, under Oregon law, a landowner owes no duty to a trespasser to warn of dangerous conditions. Hansen v. Cohen et al, 203 Or 157, 161, 276 P2d 391, on reh'g, 278 P2d 898 (1955) (“the owner of the premises owes no duty to a bare licensee or a trespasser other than to avoid injuring him willfully or wantonly”).

In a concise ruling, the Court of Appeals held that “Defendant's driveway was either open or closed to the public; there is no third choice.” Either the recreational immunity statute, or the common law limitation on a duty to a trespasser, prevent the lawsuit against the landowner. There simply is no viable third option. The complaint was properly dismissed.

However, it is important to note that the Court of Appeals did not discuss (and the opinion does leave open) the question of whether the Association has a duty to its members or the public to either mark the boundaries of its easement, or post warning to stay on the trail. See Fuhrer v. Gearhart-By-The-Sea, Inc., 306 Or 434, 439, 760 P2d 874 (1988) (“[e]ven if there is no relationship between the parties, if the risk is great, either in likelihood or magnitude, and the cost is minimal, the reasonableness of the action should be determined by the factfinder”).