Court ruling raises new liability risks for schools
December 9, 2016
By GORDON OLIVER
A legally blind runner’s injury-inducing stumble into an unmarked sprinkler repair hole in a Portland park seven years ago has triggered a long-running legal fight that’s created new liability risks for Oregon schools and community colleges.
In the case of Johnson v. Gibson, the Oregon Supreme Court’s decision opened a crack in state law that shields school entities and other landowners from legal liability claims over injuries when property is open for free public use. While the so-called recreational immunity law remains intact, legal experts say that injured runner Emily Johnson’s successful strategy of suing two Portland employees, rather than the city itself, opens a path for lawsuits that will hit property owners indirectly.
By suing employees instead of the property owners specifically covered by the immunity law, “trial lawyers can make an end run around recreational immunity and go forward with cases that were completely blocked prior to Johnson v. Gibson,” said Lisa Freiley, OSBA’s staff counsel and PACE administrator, in a recent email to school and community college officials.
“It is quite possible that we will see a sharp increase in lawsuits filed against PACE member employees who operate, maintain or repair recreational areas,” Freiley wrote.
PACE, which stands for Property and Casualty Coverage for Education, is an insurance pool administered by OSBA in conjunction with the Special Districts Association of Oregon. Members include most of Oregon’s school districts, community colleges, charter schools and education service districts.
The possibility of new legal actions has raised concerns among facility and risk managers for cities, counties, schools and community colleges. Because employers insure their workers against legal claims, they would still be held liable indirectly for legal actions against their employees. Volunteers also could be targeted in a lawsuit.
“We just need to be on top of this. We don’t know where it’s going to go,” said Phil Wentz, the Tigard-Tualatin School District’s facilities manager, and chairman of the PACE Board of Trustees. “The potential is not good. When I talk to other school districts they say the same thing.”
Already, one highly visible closure has resulted: the city of Redmond’s nationally acclaimed recreational climbing route on the underside of the Maple Avenue Bridge, spanning a dry riverbed. The city closed climbing access in Dry Canyon Park this fall after Citycounty Insurance Services (CIS) withdrew its coverage as a direct result of the court ruling.
“It’s the only facility we have closed,” said Scott Moss, property and casualty trust director at CIS, which insures city and county facilities statewide. “We were concerned about its appropriate use. Without a change in legislation we won’t cover it.”
Annie McVay, Redmond’s parks and recreation manager, said the city hopes to reopen the climbing area next fall if the Legislature amends the statute or, barring a change in state law, by securing insurance from a different source.
Lobbyists for school entities and local governments say they’ll be looking to the Legislature for a “fix” to the litigation opening created by the Oregon Supreme Court. They acknowledge that it may not be easy.
Indeed, the Oregon Trial Lawyers Association, which filed a legal brief in support of Emily Johnson’s lawsuit, is expected to oppose a restoration of the strong shield previously provided by the recreational immunity statute.
Kathryn H. Clarke, a Portland attorney who argued the trial lawyers’ brief before the State Supreme Court, said the statute has been stretched far beyond its original intent at the time of its 1995 adoption.
“Recreational immunity as originally envisioned was just fine,” she said. “It was literally about opening the outback so people could cross private property to get to the Pacific Crest Trail.”
School properties and parks that are intended to serve the public and students should be held to a high standard of maintenance and safety, Clarke said.
Emily Johnson was injured while jogging in Portland’s showcase Waterfront Park, where a maintenance worker had dug a 6-inch hole for a sprinkler repair that was not covered at the time of the accident.
Kirk Mylander, general counsel for CIS Oregon, said it was “patent nonsense to suggest that attorneys and courts broadened the provision’s use beyond its original intent when in fact the Legislature over time expanded the law’s applicability.
“If they want, they can fight it out in the Legislature,” Mylander said of the trial lawyers’ association. “I anticipate the Legislature will address it.”
A long case history
The winding sequence of events leading to the Supreme Court ruling began in the summer of 2009 when Johnson tripped in the sprinkler hole. The Vancouver woman badly injured her knee, causing a permanent disability despite multiple surgeries. Workers said the hole had been marked initially by an orange cone, but that the cone had been removed before Johnson ran through the park.
Johnson originally sued the City of Portland, but the city asserted that it was protected by the recreational liability protections in the Oregon Public Use of Lands Act. The judge dismissed the suit but Johnson’s lawyers refiled, this time naming maintenance worker Scott Gibson and his supervisor Robert Stillson as defendants.
That suit also was dismissed. On appeal, the Ninth Circuit Court of Appeals sent the case to the Oregon Supreme Court for a ruling on whether employees should be considered “owners” protected by recreational immunity. The court ruled that the employees are not “owners,” which allowed Johnson’s case to go forward. Importantly, public agencies insure employees against personal liability, so ultimately the liability still rests with school districts and other public property owners.
PACE and other statewide public and private entities are preparing to ask the Legislature to expand the definition of “owner” to include employees, volunteers and agents, Freiley has informed PACE members. But even if the Legislature makes that change, it might not go into effect immediately.
In the immediate future, both PACE and CIS are asking those insured to reduce risks by making overdue repairs, establishing regular maintenance schedules, and installing cautionary signs at playgrounds and other recreational facilities.
“We want them to eliminate the easy stuff off the top,” said Freiley. She worries about whether school officials fully realize the increased liability they face in light of the state Supreme Court ruling.
Wentz, of Tigard-Tualatin, agrees.
“I don’t think anyone ever takes this (risk) seriously enough because people like me are calling out that there’s a wolf running around,” he said. “This is a real wolf, not a pretend one.”
The playground at Irvington Elementary School in Northeast Portland is open to the public in non-school hours and is used for many community and recreational activities, including after-school soccer classes.