A trail near Boiler Bay on the Oregon Coast. (Photo: Jonathan Maus/BikePortland)
A law that was created to shield land managers and property owners from liability claims is under fire and public trail access — including bike trails — across Oregon could be in jeopardy. That’s the state-of-play due to a decision in July 2023 by the Oregon Court of Appeals in a case that hinged on the legal concept of, “recreational immunity.”
Oregon’s recreational immunity law (ORS 105.682) states, “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.” The idea behind this law is to encourage landowners (government entities or private companies/individuals) to keep trails open to the public without fear of being sued if someone is hurt using them.
Challenges to this law have happened before, but one if its biggest tests yet began when a woman slipped on a trail and broke her leg while walking near Agate Beach on the Oregon Coast in 2019 and sued the City of Newport for damages, saying the law shouldn’t apply because she wasn’t recreating at the time of her fall. Nicole Fields claimed the city was negligent because they failed to maintain a footbridge on a trail that led to the beach. Her lawyers argued their client was using the trail as an access route to her recreation — and was not technically recreating — when she fell. A local judge didn’t accept that argument and ruled in favor of the City of Newport. But last summer, the decision was reversed by the Court of Appeals. When the Oregon Supreme Court refused to hear an appeal to the case in October, it raised questions about how to apply this important law.
Some cities and land managers are confused and worried that they will no longer be shielded from lawsuits if they keep trails open. According to the Salem Statesman Journal, several coastal cities have already closed trails and paused trail projects already. The Journal also reports that some legal experts feel closures are an overreaction, spurred by insurance industry scare tactics.
While the issue is debated and everyone waits for clarity from the Oregon Legislature, trail advocates are not sitting on their hands.
The Oregon Trails Coalition, a statewide nonprofit, sent an action alert to members last month that warned, “Oregon’s trails are under threat!” The organization’s top priority for the 2024 short session is to seek a legislative fix. “Oregon Trails Coalition is helping… to bring attention to the issue and encourage lawmakers to Protect Oregon Recreation by restoring recreational immunity in Oregon with new language that provides clear protections for land managers that open their lands to the public,” reads an OTC blog post published December 15th.
Observers say a fix to the law is imminent in the 2024 session that begins Monday, February 5th. If a bill is introduced, stay tuned for opportunities to testify. You can also make plans to join OTC and other advocates at their Trails Day at the Oregon Capitol event on February 12th.
