Portland's First Mountain-Bike Park Could Be Crippled by a Court Decision

For more than a decade, Linda Robinson worked to turn 25 acres of surplus state land into a park that would draw visitors to a long-neglected chunk of Northeast Portland.

After Robinson, a retiree, and fellow volunteer Ted Gilbert, a local businessman, settled on the idea of converting the Gateway neighborhood land into the city's first dedicated mountain-biking park, they persuaded Metro and the city of Portland to chip in $3 million. Now the opening of the park to be known as Gateway Green is just months away.

"We were trying to think of something that would give people a reason to come to Gateway," Robinson says.

Robinson's reward for all those years of unpaid labor? Because of a court ruling last year, she and the other volunteers building the park's bike trails can be sued if a visitor to the park gets hurt.

That legal liability casts a shadow over the park, among the biggest added to the city in two decades.

Gateway Green and other parks across the state where Oregonians pursue adventure sports face inflated insurance bills and even closure following a 2016Oregon Supreme Court decision that lawmakers are racing to address.

"The employees and volunteers who've built Gateway Green now have liability if something goes wrong," says Scott Winkels, a lobbyist for the League of Oregon Cities. "That's a big problem."

Last March, the Oregon Supreme Court handed down a ruling that overturned a key premise of a 45-year-old law referred to as the Oregon Public Use of Lands Act.

The law, passed in 1971, said that if someone got hurt while engaging in recreational activities—say hunting, fishing, hiking or running—the landowners couldn't be held legally responsible. The idea was to make more of Oregon's natural beauty open to everyone and grant landowners, public and private, so-called "recreational immunity."

In 2009, a city parks worker dug a hole in Portland's Tom McCall Waterfront to fix a sprinkler. He was called away and left the hole uncovered. A blind woman named Emily Johnson was jogging in the park and stepped in the hole, resulting in serious injuries.

In its ruling on Johnson's case last year, the state Supreme Court departed from the historical interpretation of "recreational immunity" instead, and found the city parks worker and his supervisor could be held personally liable because landowners' employees and agents were not explicitly granted immunity by law. (On Jan. 30, the city of Portland agreed to pay Johnson $250,000 on behalf of its parks workers.)

In other words, while landowners remained safe from lawsuits, employees and volunteers who worked on that land were not. The ruling opened what the League of Oregon Cities and private landowners say is a major legal risk because while landowners are still legally immune, they are likely to have to cover the legal liabilities of employees and volunteers.

The little-noticed ruling soon had major effects.

In 2015, for instance, the city of Redmond opened a climbing wall on part of a city bridge. The wall was designed by a world-class rock climber, Ian Caldwell, whose feats climbing in nearby Smith Rock State Park led locals to dub him "The Mayor of Smith Rock." The park was an immediate hit—it even made the February 2016 cover of Climbing magazine.

But after the Supreme Court decision, the city of Redmond's insurance company delivered bad news, according to City Manager Keith Witcosky: Even though the park's safety record was spotless, the company would no longer insure it.

The city scrambled to find coverage, looking as far afield as Lloyd's of London. Witcosky says the price for new insurance—$157,000—was more than 30 times the previous cost, and the deductible doubled from $50,000 to $100,000. The park closed in July 2016.

"You go and do something really innovative and step out of the bureaucratic box, and then you get smacked because of people who'd place lawsuits over individual responsibility," Witcosky says.

Other Oregon towns with public parks that host high-risk activities are sharing Redmond's pain.

The town of Pilot Rock, for instance, owns a motocross track called "The Bike Pit," where people ride motorcycles.

"The only forward-moving thing we have going on right now is the Bike Pit," says Teri Porter, city manager of the town of 1,542 people 15 miles south of Pendleton. "The ruling jeopardizes that."

Lawmakers this session will attempt to come to the rescue.
Cities hope the legislature will explicitly extend recreational immunity to employees, agents and volunteers. That's the concept embodied in Senate Bill 327, a bill high on the city of Portland's legislative agenda.

"It's not just Gateway Green," says Elizabeth Edwards, the city's lobbyist. "We've got recreational areas across the city."

There is, however, significant opposition to the fix. The Oregon Trial Lawyers Association thinks recreational immunity covers too many sins.

The trial lawyers oppose SB 327 and a similar House version. In fact, they've proposed legislation that would give park users even more power to sue: Senate Bill 504 eliminates recreational immunity for public landowners, such as parks and school districts.

OTLA lobbyist Arthur Towers uses the example of a public playground with a poorly maintained swing set. Towers says people who are injured because of the negligence of a parks department should be allowed to sue that department, which recreational immunity currently prohibits.

"You as the injured person would have to demonstrate that the city or the county is actually negligent," Towers says. "People are up in arms about lead in the water pipes—negligence on a playground is exactly analogous."

Towers says the trial lawyers aren't trying to shut down parks like Gateway Green. Mountain bikers or wall-climbers are taking more risks than typical park users, and that's fine. What's not OK, Towers says, is giving public landowners a pass when their failure to maintain property causes injury.

Robinson says she was unaware of the Supreme Court ruling and hopes it won't undo 10 years' worth of effort at the edge of Interstate 205.

"This land's been empty for so long," she says. "We just wanted to do something nice for the neighborhood."