More than a century ago, Oliver Wendell Holmes observed, “the life of the law has not been logic; it has been experience.” I wonder what Justice Holmes would think of the matter these days when cases come down the pike which seem to run counter to both logic and experience.
For a case in point, consider a report from the Oregonian recently describing how a lawsuit against Washington County for the drowning deaths of four family members at Haag Lake was dismissed pursuant to the state’s “recreational use statute”. The drownings occurred in an area of the lake containing a steep drop off that is not visible to waders in the area. The lawsuit alleged that although this dangerous condition was known to the County as a result of several prior drownings in that area of the lake, the County did nothing to warn swimmers of the danger. Even so, the court dismissed the suit, finding that Washington County had no liability under such alleged facts.
Recreational use statutes are not unique to Oregon; every state has some version of such a law. The statute’s purpose is to encourage landowners to make their land available for public use free of charge by immunizing the landowner from injuries that occur during such use. One can appreciate that landowners are more likely to make their properties available for recreational users if they are protected from lawsuits brought by those who avail themselves of free use of the property. However, application of the same statute can result in some odd results depending on the circumstances involved.
For example, a recent case from our court of appeals held that the recreational use statute did not apply when a jogger sued Washington County for injuries sustained when the jogger tripped and fell over a public sidewalk that was “pitched upward”. The jogger alleged the county failed to inspect or maintain the sidewalk and failed to warn pedestrians of the hazard. Although the trial judge dismissed the case on the basis of the immunity provided by the recreational use statute, the court of appeals reversed that ruling and reinstated the lawsuit. The appellate court did so because, in its view, the statute’s immunity did not apply to an ordinary sidewalk that was already available for general use. The court said because the sidewalk was not land made available for public use, that there was no immunity against the jogger’s suit. 
So, the recreational use statute does not bar a lawsuit by a jogger who falls over a plainly visible sidewalk “defect”, but does bar a lawsuit arising out of four drownings as a result of a condition which was not visible to the victims but known to the landowner. These results, I would suggest, run counter to experience, which teaches that we are [or, at least, should be] responsible for our own safety when we fail to see hazards in plain view, but not when the hazard is one of which we are unaware. In these two cases, though, neither logic nor experience seem to have influenced the outcomes. In each instance, it seems the law had it backwards.
© 5/10/2017 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.
 Landis v. Limbaugh, 282 Or App 284 (2016).