No Recreational Immunity = Higher Costs for Counties

Failure to restore recreational immunity will raise insurance costs and limit recreation options

The already-significant cost of liability insurance for Oregon’s counties will climb even higher, unless the Legislature votes this session to restore the protective powers of recreational immunity. Many counties and cities throughout Oregon have passed resolutions stating that they support the Association of Oregon Counties’ efforts to restore immunity to landowners, their employees and agents who provide free, recreational access to their properties.

In the past, when a person visiting a county park injured himself and then sued, recreational immunity would serve as a strong defense for both the county and the county’s employees. Courts would routinely dismiss the entire lawsuit because the statute protected both the employee and the county from being sued. However, after the Oregon Supreme Court’s decision in a Portland case, Johnson v Gibson, recreational immunity only applies to the county, and no longer protects employees.

So, the county itself may be protected, but who pays for a suit against a county employee? The county, which is required by statute to indemnify its employees. The outcome is just like the county being sued directly, as if recreational immunity had been completely overturned, except now the brunt of the publicity is born by individuals instead of only naming the county.

Costs are Significant

Currently, without full recreational immunity in place, a plaintiff still has the legal burden to prove that a county employee was negligent — and that the employee’s negligence caused the injury. This is not always easy to do. The defending county can bring forward evidence showing that they were not negligent, acted reasonably, and didn’t cause the injury.

But even if the county and its employee(s) win, there is still a significant cost to counties and their citizens. Insurance rates will go up because the cost of defense will go up from zero per case with full immunity, to at least $75,000 per case with a gross/negligence standard. And that figure assumes the local government prevails at the summary judgment stage. But, if there is a jury question, then the cost will be $150,000 to $200,000; and those are just the costs when local government demonstrates the person injured his or herself.

Based on estimates for 2017-18, five jury trials across the state, at $200,000 each a year — even if the counties win — would further raise already-increasing insurance rates for CIS members by more than 4 percent. Self-insured counties would most likely bear the costs directly.

What about a “gross negligence” standard?

Currently, without full recreational immunity in place, a plaintiff still has the legal burden to prove that a county employee was negligent — and that the employee’s negligence caused the injury. This is not always easy to do. The defending county can bring forward evidence showing that they were not negligent, acted reasonably, and didn’t cause the injury.

Some have suggested that making the bar for negligence higher — a “gross negligence” standard – would avoid lawsuits in all but the most egregious cases. This seems unlikely. Whether “negligence” or “gross negligence” is the standard, plaintiffs’ attorneys will simply allege as much in each and every case — much the same as plaintiff attorneys have targeted county employees in recreational injury claims if they can’t go after the county itself.

Plaintiffs Must Prove Negligence

Currently, without full recreational immunity in place, a plaintiff still has the legal burden to prove that a county employee was negligent — and that the employee’s negligence caused the injury. This is not always easy to do. The defending county can bring forward evidence showing that they were not negligent, acted reasonably, and didn’t cause the injury.

“To win these kinds of cases, it’s critical to have a good maintenance plan in place,” said CIS General Counsel Kirk Mylander. “You have to demonstrate that your recreational equipment is regularly inspected and maintained.”

Counties that can prove that their park equipment is checked and maintained on a regular schedule are in a much stronger position to defend lawsuits.

Discretionary Immunity Can Be Used as a Defense

Until we can restore the protection that recreational immunity provided, discretionary immunity is an alternative that can be used.

Discretionary immunity protects someone who’s acting in the course and scope of their authority, exercising the discretion that is an inherent part of their job. So, what does that mean? It means they can’t be sued for exercising their authority the wrong way.

For example, when a county commission votes to prioritize how to spend county money and learns that they don’t have enough funds to maintain every piece of park equipment, they are still protected if they prioritized the spending as part of a well-considered plan. The fact that they considered, and voted on, a prioritized park maintenance plan maximizes the likelihood that they’re covered by discretionary immunity.

 What about if a planned course of action isn’t approved by the county commission, does discretionary immunity apply?

According to Mylander, discretionary immunity applies most clearly to a course of action, such as a park maintenance plan, when a governing body votes to approve or adopt the plan.

However, discretionary immunity can also apply to policy decisions made by a department head — especially when there’s documented evidence that the department head is specifically authorized to make those policy decisions.

If putting together a park maintenance plan is within the job duties of a public works director, then discretionary immunity should apply to any claim that alleges that the county should have adopted a different maintenance plan with different priorities.

Learn More Online

CIS members can view two webinars about recreational immunity in the CIS Learning Center at learn.cisoregon.org. One webinar answers frequently asked questions, while the other highlights how to work through challenges by using Enterprise Risk Management (ERM).

For additional information, visit CIS’ Q&A at https://www.cisoregon.org/RecImmunity. The Q&A is based on questions generated during the webinars.

If you have other questions, please email Kirk Mylander at kmylander@cisoregon.org.

Lynn McNamara has served as CIS’ executive director since 2010. Beginning in the early 1990s, she worked in and with municipal government, including time at the League of Oregon Cities. In 2017, she received a national Award for Excellence in Leadership from AGRiP — and she is currently serving on the NLC Mutual Insurance Company board of directors.

Contributed by: Lynn McNamara, CIS Executive Director

 

 

 

2017-04-12T18:16:32+00:00 March 31st, 2017|Categories: Business Partner|