Bills would protect schools from lawsuits by users of their lands
Friday, April 7, 2017
The legal and technical wrangling around “recreational immunity” boils down to making public lands and facilities open to residents without sending insurance costs into the stratosphere.
The fate of the recreational immunity bill was tightly wound with a bill on non-economic damage caps in lawsuits, so Senate Bills 327 and 737 were both heard Thursday before the Senate Judiciary Committee. Recent court decisions raised questions about both issues, and the bills represented negotiated compromises.
The Oregon Public Use of Lands Act encourages public and private owners of land, including school districts, to make their land available to the public for recreational purposes by providing landowners immunity from tort liability. However, in Johnson V. Gibson, the Oregon Supreme Court ruled that the act intended only to immunize the actual landowner and never intended recreational immunity to protect employees or agents acting on behalf of the landowners.
The Johnson ruling dramatically undermined landowner recreational immunity from tort liability because public employers are statutorily required to indemnify their employees, which could have meant districts having to choose between severely limiting public access to all facilities or dramatic increases in insurance costs. SB 327, which was amended and moved on, would provide immunity to lawsuits for owners of land as well as all employees and agents of the landowner when they are acting in the capacity of the landowner, nullifying the Johnson ruling.
During the same hearing, the committee also amended and moved SB 737, which would remove damage limits for tort claims, a.k.a. “tort caps.” The bill was a response to the Oregon Supreme Court ruling in Horton v. OHSU that affirmed the legality of caps.
OSBA was monitoring the bill, but because the bill includes an exemption for those already operating under tort caps created by a different law, the Tort Claims Act, schools and school districts should not be affected by the bill.
OSBA will monitor both bills and will be actively lobbying in favor of SB 327. Both bills are headed to the Senate floor for a vote by the full membership.
