Since 1971, Oregon has encouraged private landowners to open their land to the public by offering immunity from liability if someone is injured while using the land for recreational purposes. In 1995, Neil Bryant, a Bryant, Lovlien & Jarvis partner, played a key role in the passage of the Oregon Public Use of Lands Act, which expanded this immunity to public landowners as well. This policy is codified in Oregon Revised Statute (ORS) 105.682 and is commonly referred to as “recreational immunity.” It protects landowners who allow public use of their land by shielding them from liability from a person that is injured on their land while engaging in “use of the land for recreational purposes.”
Recently, the application of recreational immunity has experienced some disruption and uncertainty following the 2023 Oregon Court of Appeals opinion in the case Fields v. City of Newport. The recreational immunity statute, ORS 105.672, provides a non-exhaustive list of “outdoor activities” to designate when land is being used for “recreational purposes.” The court in Fields determined that “walking” does not qualify as use of land for “recreational purposes” under ORS 105.672. In addition, the court ruled that recreational immunity is only provided for the use of unimproved trails and trails that are on land adjacent to the land that the person intends to use for recreational purposes. The court reasoned that if a landowner improves their property, the duty of reasonable care and foreseeability are implicated, and immunity is therefore waived. These two rulings in Fields v. City of Newport were aimed to curtail the protections of recreational immunity for landowners from those that may be commuting rather than recreating. However, the court’s ruling effectively excluded a large class of users that could objectively be considered recreational users.
Critically, the court in Fields, further ruled that it could not determine that the “principal purpose” of a person was recreational or not as a matter of law. The court held that a person’s subjective intent for using land is a question of fact that should be determined by a jury. This ruling weakens the efficacy of recreational immunity because it stands for the proposition that recreational immunity cannot be provided at the summary judgment stage of litigation. The result is that landowners that are sued by property owners will be forced to defend a lawsuit all the way to trial causing them to incur much greater costs in time and legal fees. The threat of greater liability created by Fields put pressure on insurers to require landowners to close their properties.
The Oregon Legislative Assembly has undertaken efforts to remedy the weakening of recreational immunity by the court’s rulings in Fields v. City of Newport. This office has been involved in the legislature’s efforts. In 2024, the Oregon Legislature passed Senate Bill 1576 which temporarily amended ORS 105.672 to include walking, biking, and running in the definition of “recreational purposes” and expanded the application of recreational immunity to both improved and unimproved trails. That Bill is set to sunset on January 2, 2026; however, during the 2025 legislative session Senate Bill 179 was passed to make the temporary changes under Senate Bill 1576, permanent. Senate Bill 179, which will go into effect on January 1, 2026.
Recreational immunity provides a compromise for landowners and recreational users. The essential element of that policy is to limit liability for landowners. When that protection is weakened, the landowners take on a risk and expense that they did not bargain for and ultimately, less outdoor recreational options will be available. Senate Bill 179 is intended to rebalance the aims of the thirty-year-old policy and keep Oregon’s recreational spirit alive. Although the legislative changes help to address the issues of walking as a recreational activity and expanding the application to unimproved trails, the issue of the subjective intent of the user as a matter of fact and not a matter of law is still an outstanding issue for landowners.