The City of Bandon is considering closing its trail system. In an agenda report for the Jan. 9 council meeting, City Attorney Shala Kudlac noted that “local municipalities have been advised by its insurance provider … to close City-owned and maintained improved trails as a precaution and to avoid potential liability.”
Bandon isn't the only local government to discuss such drastic measures as municipalities across Oregon are faced with increasing levels of legal risk when accommodating recreation users.
The issue started in 2019 when a woman named Nicole Fields fell while crossing a bridge owned by the City of Newport. Fields sued, but the city claimed “recreational immunity” in its defense.
That law protects landowners who don’t charge a fee to access their property for things like hiking. It only applies to land improved for recreation and is meant to encourage landholders to develop their property for public use.
If someone is accidentally injured while using the area for recreation, the owners aren’t liable for damages. But in the case Fields v. City of Newport, the injured woman said she wasn’t using the bridge for recreation. And in 2023 Oregon’s Court of Appeals upheld her argument.
Scott Winkels, a lobbyist with the League of Oregon Cities, says local governments are trying to determine whether keeping trails open is worth the new risk created by the precedent in the Newport case.
“It blows a pretty big hole in our understanding of what our liability was prior to this ruling,” Winkels said.
He says the court’s decision puts more weight on the mindset of the person using the land than the intent of the property owner.
“A trail that was built for a recreational purpose but is used by somebody walking to work instead of driving – is that recreational?” he said.
City/County Insurance Services Oregon, which insures many local governments in the state, including Bandon, has recommended their clients close trail systems. So far, some cities have. The City of Waldport closed the Waziyata Trail and Tillamook County closed the Tire and Short Beach trail in Oceanside. City officials in Ashland say they’re currently keeping the Southern Oregon town’s trail system open.
Winkels hopes the state Legislature will provide guidance on the issue during the February legislative session. If not, he says, more could close this summer.
