Johnson v. Gibson ( 2016 )

624 March 3, 2016 No. 7
IN THE SUPREME COURT OF THE
STATE OF OREGON
Emily JOHNSON,
Plaintiff,
v.
Scott GIBSON
and Robert Stillson,
Defendants.
(US Court of Appeals Ninth Circuit 1335087;
SC S063188)
On certified questions from the United States Court of
Appeals for the Ninth Circuit; certification order dated April
24, 2015; certification accepted June 4, 2015.
Argued and submitted November 13, 2015.
Thane W. Tienson, Landye Bennett Blumstein LLP,
Portland, argued the cause and filed the brief for plaintiff.
With him on the brief was Christine N. Moore.
Harry Auerbach, Chief Deputy City Attorney, Portland,
argued the cause and filed the brief for defendants. With him
on the brief was Denis M. Vannier, Deputy City Attorney.
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for amicus curiae Oregon Trial Lawyers Association.
With her on the brief was Shenoa L. Payne, Haglund Kelley
LLP, Portland.
Thomas W. McPherson, Mersereau Shannon, LLP,
Portland, filed the brief for amici curiae League of Oregon
Cities, Association of Oregon Counties, Citycounty Insurance
Services, Oregon School Boards Association, Special
Districts Association of Oregon, and The International
Municipal Lawyers Association.
Janet M. Schroer, Hart Wagner LLP, Portland, filed
the brief for amicus curiae Oregon Association of Defense
Counsel.
Cite as 358 Or 624 (2016) 625
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer and Nakamoto, Justices.*
WALTERS, J.
The certified questions are answered.
Case Summary: The Ninth Circuit certified two questions to Oregon Supreme
Court: (1) Whether individual employees responsible for repairing, maintaining,
and operating improvements on City-owned recreational land made available to
the public for recreational purposes are “owners[s]” of the land under the Oregon
Public Use of Lands Act, ORS 105.672 to 105.700, and therefore immune from
liability for their negligence; and (2) if such employees are “owner[s]” under the
Act, whether the Act, as applied to them, violates the remedy clause of Article I,
section 10, of the Oregon Constitution. The Supreme Court held that because the
individual employees did not have authority to control and exclude from the land,
and because the court has consistently recognized that the liability of a local
government as landowner is distinct from the liability of employees and agents of
the government, the employees were not “owner[s]” of the land. The court did not
reach the second certified question.
The certified questions are answered.
______________
*  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
626 Johnson v. Gibson
WALTERS, J.
This case is before the court on two certified ques-
tions from the United States Court of Appeals for the Ninth
Circuit. See ORS 28.200 - 28.255 (providing for certifica-
tion of certain questions of Oregon law from specified fed-
eral courts and appellate courts of other states to Oregon
Supreme Court). As framed by the Ninth Circuit, the ques-
tions are (1) whether individual employees responsible for
repairing, maintaining, and operating improvements on
City-owned recreational land made available to the pub-
lic for recreational purposes are “owner[s]” of the land, as
that term is defined in the Oregon Public Use of Lands
Act, ORS 105.672 to 105.700,1 and therefore immune from
liability for their negligence; and (2) if such employees are
“owner[s]” under the Act, whether the Act, as applied to
them, violates the remedy clause of Article I, section 10, of
the Oregon Constitution.2 We conclude that the individual
employees in this case do not qualify as “owner[s]” under
the Act, and that we need not address the second certified
question.
This case arose when plaintiff, who is legally blind,
was injured when she stepped into a hole while jogging in
a public park in the City of Portland (the City). Plaintiff
filed a complaint against the City and defendants Gibson
and Stillson. Defendant Gibson had created the hole to fix
a malfunctioning sprinkler head; he was a park technician
with primary responsibility for maintenance of the park.
Defendant Stillson was the maintenance supervisor for all
westside parks in the City.
1
ORS 105.672(4), which defines “owner” for purposes of the Act, was
amended in 2009, and those changes went into effect January 1, 2010. Or Laws
2009, ch 532, § 1. Plaintiff alleges that her injuries occurred in July 2009. We
therefore assume, as do the parties, that the Ninth Circuit’s questions refer to
the version of the statute in place at the time plaintiff’s injuries occurred. That
statute is ORS 105.672(4) (2007).
The current version of ORS 105.672(4) provides: “ ‘Owner’ means the posses-
sor of any interest in any land, such as the holder of a fee title, a tenant, a lessee,
an occupant, the holder of an easement, the holder of a right of way or a person in
possession of the land.”
2
The remedy clause provides: “[E]very man shall have remedy by due course
of law for injury done him in his person, property, or reputation.” Or Const, Art 1,
§ 10.
Cite as 358 Or 624 (2016) 627
Plaintiff filed her complaint in federal district
court, invoking federal claim and supplemental jurisdiction.
Plaintiff alleged, under federal law, that the City had vio-
lated Title II of the American’s with Disabilities Act (ADA),
42 USC sections 12131 to 12165, and, under state law, that
all three defendants were liable for negligently causing her
injuries. The City filed two motions: A motion to substitute
itself as the sole defendant, pursuant to the Oregon Tort
Claims Act (OTCA), ORS 30.260 to 30.302; and a motion for
summary judgment.
The district court denied the City’s motion for sub-
stitution. Johnson v. City of Portland, CV No 10-117-JO
(D Or Feb 10, 2010) (“Johnson I”). The court reasoned that
substitution of the City would violate the remedy clause in
Article I, section 10, of the Oregon Constitution, because
the City was immune from liability under the Public Use
of Lands Act. Had the court substituted the City as the sole
defendant in the case, the only defendant would have been
immune and entitled to dismissal, leaving plaintiff without
a remedy for her injury. Id.The district court granted the City’s motion for
summary judgment, in part. The court granted the City
summary judgment as to plaintiff’s federal ADA claim, leav-
ing plaintiff’s negligence claim as her only remaining claim.
The district court declined to retain supplemental jurisdic-
tion over that state law claim and dismissed the case. Id.Plaintiff then filed a new complaint in federal court
invoking diversity jurisdiction. Plaintiff again alleged a
state law negligence claim against defendants Gibson and
Stillson, and those defendants again filed a motion to sub-
stitute the City as the sole defendant under the OTCA. In
Johnson II, the district court agreed with the prior ruling in
Johnson I that substitution of the City was not appropriate.
Johnson v. Gibson, 918 F Supp 2d 1075, 1082 (D Or 2013).
Then, the individual defendants filed a motion for summary
judgment, contending that they were immune from liability
under the Public Use of Lands Act. Id. at 1083. The district
court agreed, reasoning that employees who maintain land
qualify as “owner[s]” under that Act, and that defendants
Gibson and Stillson were therefore immune from liability.
628 Johnson v. Gibson
Id. at 1085. The court also held that the Public Use of Lands
Act does not violate the remedy clause. Id. at 1088. The
court granted defendants’ motion for summary judgment.
Id. at 1089. Plaintiff appealed to the United States Court of
Appeals for the Ninth Circuit, and the Ninth Circuit certi-
fied to this court the two questions now before us.
We begin with the first question posed and the text
of the Oregon Public Use of Lands Act, which provides, in
part:
“Except as provided by subsection (2) of this section,
and subject to the provisions of ORS 105.688, an owner of
land is not liable in contract or tort for any personal injury,
death or property damage that arises out of the use of the
land for recreational purposes * * * when the owner of land
either directly or indirectly permits any person to use the
land for recreational purposes * * *. The limitation on liabil-
ity provided by this section applies if the principal purpose
for entry upon the land is for recreational purposes * * *.”
ORS 105.682(1). “Land” is defined as “all real property,
whether publicly or privately owned.” ORS 105.672(3).
“Owner” is defined as follows:
“ ‘Owner’ means the possessor of any interest in any
land, including but not limited to possession of a fee title.
‘Owner’ includes a tenant, lessee, occupant or other person
in possession of the land.”
ORS 105.672(4) (2007).
From that definition of “owner,” defendants make a
three-step argument: First, that the definition of the term
“owner” is ambiguous and is not limited to those with a legal
interest in the land; second, that, considered in its proper
context, the term includes owners’ employees and agents;
and third, that as City employees, defendants are entitled to
recreational immunity.
Defendants’ argument focuses on the second sen-
tence of the definition of “owner.” Defendants recognize that
they do not qualify as “owner[s]” under the first sentence
of that definition because they do not have legal title to, or
a legal right in, the property where plaintiff was injured.
However, they contend, the second sentence in the definition
Cite as 358 Or 624 (2016) 629
is broader, and it includes both persons who have a legal right
in property—specifically, “tenant[s]” and “lessee[s]”—and
those who do not—specifically, “occupant[s]” and those who
are “in possession of the land.” Id. According to defendants,
the dictionary definitions of those latter terms demonstrate
that “owner[s]” include persons without legal or equitable
title to, or interest in, land.
A “possessor” is “one that possesses: one that occu-
pies, holds, owns, or controls.” Webster’s Third New Int’l
Dictionary 1770 (unabridged ed 2002). A “possessor” is also
“one that holds property without title—called also naked
possessor; contrasted with owner.” Id. (emphasis in original).
“Possession” means “the act or condition of having in or tak-
ing into one’s control or holding at one’s disposal”; “actual
physical control or occupancy of property by one who holds
for himself and not as a servant of another without regard
to his ownership and who has legal rights to assert interests
in the property”; “something owned, occupied, or controlled.”
Id. “Occupy” means “to hold possession of”; “to reside in as
an owner or tenant.” Id. at 1561. An “occupant” is “one who
takes the first possession of something that has no owner”;
“one who occupies a particular place or premises”; and “one
who has the actual use or possession of something.” Id. 1560.
Like defendants, we surmise, from those definitions,
that the terms “occupant” and “person in possession of the
land” may include persons without legal or equitable title
to, or interest in, the land. But that is not the only lesson
we take from those definitions. Like plaintiff, we conclude
that those terms describe persons who do more than take up
space on the land. Under those definitions, an “occupant,” or
a “person in possession of the land” must have some control
over the space, and, given the context in which those terms
are used, it is likely that the control that the legislature
intended is the ability to decide who may use the space or
what use may be made of it. The terms “occupant” and “per-
son in possession of the land” are used in the same sentence
as the terms “tenant” and “lessee.” ORS 105.672(4) (2007).
Tenants and lessees have the ability to decide who may use
the space that they control and for what purposes. Under
noscitur a sociis, a maxim of statutory construction that
630 Johnson v. Gibson
tells us that the meaning of an unclear word may be clari-
fied by the meaning of other words used in the same context,
it is likely that the legislature intended that “occupant[s]”
and “person[s] in possession of the land” have the same type
of control as tenants and lessees. See State v. McCullough,
347 Or 350, 361, 220 P3d 1182 (2009) (so describing nosci-
tur a sociis). Under that interpretation, only persons with
authority to control and exclude from the land qualify as
“owner[s]” of the land.
Further support for that interpretation is found in
the context in which the term “owner” is used in the Act. The
Legislative Assembly enacted the Public Use of Lands Act in
1971 “to encourage owners of land to make their land avail-
able to the public for recreational purposes by limiting their
liability toward persons entering thereon for such purposes.”
Or Laws 1971, ch 780, § 2, codified as former ORS 105.660
(1971), now codified as amended as ORS 105.676 (emphasis
added). The immunities provided by the Act apply only if
“[t]he owner makes no charge for permission to use the
land.” Former ORS 105.688(2)(a) (2007), renumbered as ORS
105.688(3) (2010) (emphasis added). An individual without a
right to exclude others from the land or to otherwise control
use of the land does not have the decision-making authority
that the statute contemplates—the authority to make the
land available to the public or to charge for permission to
use the land.
Defendants do not point us to any statutory con-
text or legislative history that indicates that the legislature
understood the terms “occupant” or “person in possession of
the land” in ORS 105.672(4) (2007) to support the unbounded
meaning that defendants ascribe to those terms.3 In fact, a
case that defendants cite for a different proposition supports
3
Defendants do argue that the main sponsor of the bill that led to the current
version of the Act stated that it was “designed to be very broad” and to “guarantee
[landowners] that they [would not] be paying out of pocket for * * * allowing their
property to be used.” Tape Recording, House Committee on Natural Resources,
Subcommittee on Agriculture and Forestry, HB 2296, Jan 30, 1995, Tape 4, Side
A (statement of Rep Kevin Mannix). However, we do not find that general state-
ment of purpose to be of assistance in determining the meaning of defined terms
in the statute. See State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (“[I]t
is not the intent of the individual legislators that governs, but the intent of the
legislature as formally enacted into law[.]”).
Cite as 358 Or 624 (2016) 631
plaintiff’s narrow interpretation of those terms. In Elliott v.
Rogers Construction, 257 Or 421, 433, 479 P2d 753 (1971),
the court considered the standard of care that applied to
a contractor that was building a road for its principal. In
discussing that issue, the court observed that “[c]ases from
other jurisdictions and legal writers do not treat a contrac-
tor as an occupier of land.” Id. at 432. In that case, the court
was not interpreting the definition of “owner” in the Public
Use of Lands Act, but its observation about the legal mean-
ing of the word “occupant” is consistent with our interpreta-
tion of that word as being limited to individuals with a right
to control and exclude from the land.
In this case, defendants do not argue that they had
a right to exclude others from the land or to otherwise con-
trol the use of the land. Rather, they argue that the defini-
tion of “owner” is so ambiguous that it requires us to look
beyond the words of the definition to the context surround-
ing ORS 105.682, particularly the pre-existing common law.
See Fresk v. Kraemer, 337 Or 513, 520-21, 99 P3d 282 (2004)
(context includes pre-existing common law). Defendants
contend that an examination of that pre-existing common
law shows that the legislature must have intended “owner”
to include persons who are employed by, or are agents of,
persons who are more classically denominated as owners.
Defendants argue that where land and property
are concerned, the common law rule has long been that
employees and agents have the same privileges and immu-
nities as their principals. Defendants contend that, inso-
far as the legislature enacted and amended the Act in the
context of that common law rule, it intended that that rule
apply. Consequently, defendants assert, the legislature was
not required to say explicitly what the common law already
provides.
For the common law rule on which they rely, defen-
dants point to two Oregon cases—Herzog v. Mittleman, 155
Or 624, 632, 65 P2d 384 (1937); and Elliott, 257 Or at 432-33.
In the first of those cases, Herzog, the court examined a
guest passenger statute that provided that a guest in a vehi-
cle would have no cause of action against the owner or oper-
ator for damages unless the accident was “intentional on the
632 Johnson v. Gibson
part of [the] owner or operator or caused by his gross negli-
gence or intoxication or his reckless disregard of the rights
of others.” Id. at 628. The question presented was whether
a vehicle owner’s guest, who was operating the vehicle in
question at the owner’s invitation, would be protected by
the same rule on the theory that he was acting as the own-
er’s agent while driving the vehicle. The court looked to
the Restatement (First) of Agency (1933) for assistance and
began with section 343, which provides:
“An agent who does an act otherwise a tort is not relieved
from liability by the fact that he acted at the command of
the principal or on account of the principal, except where he
is exercising a privilege of the principal, or a privilege held
by him for the protection of the principal’s interest.”
Id. at 631 (internal quotation marks omitted). The court also
looked to section 347 of the Restatement, which provides: “An
agent who is acting in pursuance of his authority has such
immunities of the principal as are not personal to the prin-
cipal.” Id. (internal quotation marks omitted). Finally, the
court quoted comment a to that section:
“a. Persons may have a personal immunity from liability
with respect to all persons and for all acts, as in the case of
a sovereign, or for some acts, as in the case of an insane per-
son, or as to some persons as in the case of a husband to a
wife. * * * Unlike certain privileges such immunities cannot
be delegated. On the other hand where an immunity exists
in order to more adequately protect the interests of a per-
son in relation to his property, the agent may have the prin-
cipal’s immunity. Thus, the servant of a landowner while
acting in the scope of his employment is under no greater
duties to unseen trespassers than is the landowner[.]”
Id. at 631-32 (internal quotation marks omitted) (omission
in original).
Reasoning from those provisions, the court
explained that although “it is well settled that an agent who
violates a duty which he owes to a third person is answer-
able for the consequences thereof,” if the agent is “acting
within the authority, and pursuant to the direction of the
principal, the agent is entitled to the same immunities as
the principal would be had the principal done the same act
Cite as 358 Or 624 (2016) 633
under the same circumstances and such immunities were
not personal to the principal.” Id. at 632. Applying that legal
authority to the facts at hand, the court concluded that the
standard of care set out in the statute was not personal to
the principal—the car owner—but that it also extended to
the agent—a guest that the owner had authorized to drive
the car. Id. at 633. The court further concluded that the
plaintiff could not recover from the defendant-agent without
a showing that the defendant-agent was grossly negligent.
Id.In the second of the Oregon cases that defendants
cite, Elliott, the court considered whether a contractor work-
ing on a landowner’s property had the same limited duty of
care to trespassers and licensees as did the landowner. 257
Or at 431-33. In that case, an employee of a construction
company that was building a road for the State Highway
Department accidentally injured a pedestrian who was
crossing a portion of the road that had not yet been opened
to the public. Id. at 424. The court explained that, “[b]eing
‘clothed with the rights of the owner,’ [the construction com-
pany] was only under a duty to the plaintiff’s decedent to
abstain from inflicting injury willfully or by active negli-
gence.” Id. at 433. Because the plaintiff had alleged that
the company’s employee had acted with wanton misconduct,
however, the court held that the lawsuit could proceed. Id.
at 434-35. Thus, without discussing the issues in the same
terms used in the Restatement (First) of Agency, the court
implicitly concluded that the standard of care applicable to
the landowner was not personal to the landowner, but that
it also extended to the landowner’s agent.
In this case, defendants’ reliance on Herzog and
Elliott is misplaced. Defendants draw general conclusions
from the results in those cases without recognizing the dis-
tinction that is explicit in Herzog and implicit in Elliott—
that is, the distinction between immunities that are personal
to the principal and those that may extend to a principal’s
agent. Immunities provided to a principal may, but do not
always, extend to the principal’s agents. That is clear not
only from the comment to the Restatement quoted above, but
also from a line of Oregon cases to which plaintiff calls our
634 Johnson v. Gibson
attention. In those cases, this court considered whether the
sovereign immunity of governmental landowners preclud-
ing their liability for defective conditions on their streets
extends to agents responsible for the repair of those streets.
The first case in which the court contemplated that issue
was Mattson v. Astoria, 39 Or 577, 65 P 1066 (1901).
In Mattson, the plaintiff was injured as a result of
the city’s failure to keep a public street in repair and suit-
able for travel. Id. at 578. The plaintiff challenged a clause
of the city charter that exempted the city and members of its
council from liability for such failure. Id. The court said the
following:
“That it is within the power of a legislature to exempt a
city from liability to persons receiving injuries on account
of streets being defective or out of repair, is unquestioned.
* * * But in such case the injured party is not wholly without
remedy. He may proceed personally against the officers to
whom the charter delegates the duty of keeping the streets
in repair, and from whose negligence the injury resulted.”
Id. at 579. Since Mattson, the court has consistently recog-
nized that the liability of a local government as landowner
is distinct from the liability of employees and agents of the
government. For instance, in Gearin v. Marion County, 110
Or 390, 396-97, 223 P 929 (1924), the court explained:
“The constitutional guaranty that ‘every man shall
have remedy by due course of law for injury done him in
his person, property or reputation’ we think is self-execut-
ing and operates without the aid of any legislative act or
provision. * * * It has, however, no application to an action
sounding in tort when brought against the state or one
of the counties of the state. In strict law neither the state
nor a county is capable of committing a tort or lawfully
authorizing one to be committed. Counties, as well as the
state, act through their public officials and duly authorized
agents. The officers, agents, servants and employees of the
state or a county, while in the discharge of their duties, can
and sometimes do commit torts, but no lawful authoriza-
tion or legal justification can be found for the commission
of a tort by any such officer, agent, servant or employee.
When a tort is thus committed, the person committing it
is personally liable for the injury resulting therefrom. The
Cite as 358 Or 624 (2016) 635
wrongful act, however, is the act of the wrongdoer and not
the act of the state or county in whose service the wrong-
doer is then engaged. For the damages occasioned by the
wrong thus committed it is within the power of the legisla-
ture to impute liability against the state or the county in
whose service the wrongdoer is then engaged, or to exempt
the state or county from such liability, but in either event
the wrongdoer is himself personally responsible. It is the
remedy against the wrongdoer himself and not the remedy
which may or may not be imposed by statute against the
state or county for the torts of its officers or agents to which
the constitutional guarant[y] applies.”
See also Rankin v. Buckman, et al., 9 Or 253, 259-63 (1881)
(city employees liable even when city is not).
From those cases, it appears that whether a princi-
pal’s immunity is personal to the principal or may extend to
an agent is a matter of legislative choice subject to constitu-
tional bounds. We presume that the legislature was aware
of that existing law. Blachana, LLC v. Bureau of Labor and
Industries, 354 Or 676, 691, 318 P3d 735 (2014). In addition,
the Restatement (Second) of Agency section 347(1) (1958),
which had been published by the American Law Institute
when the Legislative Assembly enacted the Oregon Public
Use of Lands Act in 1971, is in accord. It provides that “[a]n
agent does not have the immunities of his principal although
acting at the direction of the principal.” Id. Restatement sec-
tion 347 comment a clarifies: “Immunities exist because of
an overriding public policy which serves to protect an admit-
ted wrongdoer from civil liability. They are strictly personal
to the individual and cannot be shared.” Subject to constitu-
tional limitations, the legislature must determine as a mat-
ter of public policy how broadly to extend immunities.
Consequently, we conclude that when the Legislative
Assembly enacted the Public Use of Lands Act, legislators
would not necessarily have assumed that granting immunity
to landowners would also grant immunity to their employ-
ees and agents. The legal principles that the court had pre-
viously applied, as well as the common law rules reflected in
the restatements, recognized that the grant of immunity to
a principal, particularly to a governmental principal, would
not necessarily extend to the employees and agents of the
636 Johnson v. Gibson
principal. Whether a court would imply such an extension
could depend, for instance, on whether the court considered
the grant of immunity personal to the principal, or whether
extension of immunity to an agent would eliminate a rem-
edy that the Oregon Constitution requires.
In this case, in deciding whether to imply an
extension of the immunity granted to “owner[s]” of land to
their employees and agents, we first consider the statute’s
text. Significantly, that text indicates that the legislature
intended to extend the immunity of those who hold legal
title to land to some others who stand in their stead—the
owners of other lesser interests in land, including tenants
and lessees, and those who qualify as “occupant[s]” or “per-
son[s] in possession” of the land. The text does not, however,
disclose a legislative intent to extend the immunity of own-
ers to additional persons who stand in their stead, such as
employees and non-employee agents.
Second, we look to the statute’s context and legis-
lative history and note that, when it was originally enacted
in 1971, the Act was supported by owners of forestland who
wished to open their lands to the public for recreational uses
such as hunting and fishing. Testimony, Senate Committee
on State and Federal Affairs, SB 294, March 1, 1971 (writ-
ten statement of Sam Taylor, a proponent of the bill). When
originally enacted, the Act provided that “[a]n owner of land
owes no duty of care to keep the land safe for entry or use by
others for any recreational purpose or to give any warning of
a dangerous condition, use, structure or activity on the land
to persons entering thereon for any such purpose.” Or Laws
1971, ch 780, § 3. Thus, it appears that the legislature’s orig-
inal intent was to relieve those who control the use of their
land from responsibility to take affirmative steps to make
their property safe for use by others; the legislature did
not express an intent to benefit those who do not have the
ability to make decisions about the use of land, or to relieve
non-owners who commit negligent acts from responsibility
for injuries caused by such acts.
The legislature amended the Act in 1995 to make
it expressly applicable to public landowners. Or Laws 1995,
ch 456, § 1. However, neither that change nor other changes
Cite as 358 Or 624 (2016) 637
in the wording of the statute disclose an intent to change
the purpose of the statute or to benefit additional classes
of persons. Importantly, the legislature did not materially
change the definition of owner in 1995. The 1971 Act pro-
vided that an “owner” is “the possessor of a fee title interest
in any land, a tenant, lessee, occupant or other person in
possession of the land.” Or Laws 1971, ch 780, § 1. In 1995,
the legislature broke the definition into two sentences and
changed the phrase in the first sentence from “possessor of
a fee title interest in any land” to “possessor of any interest
in any land.” Or Laws 1995, ch 456, § 1. However, the leg-
islature did not change the categories of persons to whom
it granted immunity; in 1995, the legislature exempted the
same persons from liability that it had exempted in 1971.
When the legislature made the Public Use of Lands Act
expressly applicable to public landowners in 1995, it did not
demonstrate an intent to broaden the Act to benefit those
who do not have the ability to make decisions about the use
of land, or to relieve non-owners who commit negligent acts
from responsibility for injuries caused by such acts.
Defendants argue, however, that other statutory
context points in that direction. Defendants call our atten-
tion to the fact that just four years earlier, in 1991, the leg-
islature had amended the OTCA to provide that a claim
against a public body is the sole remedy for the torts commit-
ted by employees of that public body. Or Laws 1991, ch 861,
§ 1. Defendants contend that, in light of that amendment,
the Public Use of Lands Act must be read to shield govern-
mental employees and agents; otherwise, the immunity it
grants to governmental landowners would mean nothing.
We disagree. The Public Use of Lands Act applies not only
to public landowners, but also to private landowners. Just
as it did before the amendment of the OTCA, the Public Use
of Lands Act protects all “owner[s]” from liability in their
capacity as “owner[s].” Just like private owners, public own-
ers are exempt from liability for their own acts. The fact
that public owners are not, in addition, exempt from liabil-
ity for the acts of their employees or agents does not make
the immunity granted by the Public Use of Lands Act illu-
sory. The fact that public owners, like private owners, are
not shielded from liability if they employ non-owners who
638 Johnson v. Gibson
cause injury to others in the negligent performance of their
duties does not mean that the Public Use of Lands Act has
no purpose.
The legislature knows how to extend immunity to
governmental employees and agents when it chooses to do
so. See ORS 368.031 (immunizing counties and their officers,
employees, or agents for failure to improve or keep in repair
local access roads); ORS 453.912 (immunizing the state and
local government and their officers, agents and employees
for loss or injury resulting from the presence of any chemical
or controlled substance at a site used to manufacture ille-
gal drugs); ORS 475.465 (immunizing the state, DEQ, EQC,
and their officers, employees, and agents from liability to a
person possessing chemicals at alleged illegal drug manu-
facturing site).4 The legislature did not make that express
choice in the Public Use of Lands Act. Should the legislature
wish to extend the immunity provided to “owner[s]” to gov-
ernmental employees and agents, it is free to do so, within
constitutional bounds. However, we are unwilling to insert
into the definition of “owner” in ORS 105.672(4) (2007) terms
that the legislature did not include. See ORS 174.010 (office
of judge is to ascertain what is contained in statute, not to
insert what was omitted or to omit what was inserted).
We answer the Ninth Circuit’s first certified ques-
tion as follows: Individual employees responsible for repair-
ing, maintaining, and operating improvements on City-
owned recreational land made available to the public for
recreational purposes are not “owner[s]” of the land, as that
term is defined in the Oregon Public Use of Lands Act. They
are therefore not immune from liability for their negligence.
We do not reach the second certified question concerning
Article I, section 10, of the Oregon Constitution.
The certified questions are answered.
4
Another example, although enacted after the Public Use of Lands Act, is
a 2011 statute that grants immunity relating to public trails. ORS 105.668(2)
immunizes a “city with a population of 500,000 or more” and its “officers, employ-
ees, or agents” from liability for injury or damage resulting from the use of a trail
or structures in a public easement or an unimproved right of way.