McCormick v. State Parks and Recreation Dept. ( 2020 )

220
Submitted on remand from the Oregon Supreme Court June 10, affirmed
December 30, 2020
Benjamin McCORMICK,
Plaintiff-Appellant,
v.
STATE OF OREGON,
by and through the Oregon
State Parks and Recreation Department,
Defendant-Respondent.
Jefferson County Circuit Court
14CV00131; A159931
482 P3d 187
Plaintiff sustained severe injuries while visiting The Cove Palisades State
Park and thereafter initiated a negligence action against the state. The state
moved for summary judgment, and the trial court granted it, concluding that the
state was entitled to recreational immunity under ORS 105.682. On review, the
Court of Appeals initially reversed the trial court’s grant of summary judgment
because it concluded that there was a dispute of material fact as to whether,
as required for immunity, the state “permitted” the use of the park within the
meaning of ORS 105.682. McCormick v. State Parks and Recreation Dept., 293
Or App 197, 200-01, 427 P3d 199 (2018), rev’d and rem’d, 366 Or 452, 466 P3d 10
(2020). The Supreme Court disagreed and concluded that the state had “permit-
ted” recreational use of the park within the meaning of the statute. It reversed
and remanded for the Court of Appeals to determine whether the state met the
other criteria for recreational immunity. On remand from the Supreme Court,
plaintiff assigns error to the trial court’s entry of summary judgment. He con-
tends that there are factual issues, and a need for further discovery, on the point
of whether the $5 fee that the state charged plaintiff and his family when they
entered the park by car was a parking fee, which would grant the state recre-
ational immunity, or a fee for the use of the park, which would bar recreational
immunity. Held: The trial court did not err in granting summary judgment.
There was no dispute that, by administrative rule, the fee to enter the park was
a parking fee. OAR 736-015-0030(1), (6).
Affirmed.
On remand from the Oregon Supreme Court, McCormick
v. State Parks and Recreation Dept., 366 Or 452, 466 P3d 10
(2020).
Gary Lee Williams, Judge.
Shenoa Payne and Haglund Kelley LLP filed the opening
brief for appellant. On the reply brief were Shenoa Payne
and Shenoa Payne Attorney at Law PC.
Cite as 308 Or App 220 (2020) 221
Ellen F. Rosenblum, Attorney General, Paul L. Smith,
Deputy Solicitor General, and Peenesh Shah, Assistant
Attorney General, filed the brief for respondent.
Kathryn H. Clarke filed the brief amicus curiae for
Oregon Trial Lawyers Association.
Before DeHoog, Presiding Judge, and Lagesen, Judge,
and Aoyagi, Judge.
LAGESEN, J.
Affirmed.
222 McCormick v. State Parks and Recreation Dept.
LAGESEN, J.
This case is before us on remand from the Supreme
Court. McCormick v. State Parks and Recreation Dept., 366
Or 452, 466 P3d 10 (2020) (McCormick II). At issue is the
state’s entitlement to recreational immunity under ORS
105.682 in this negligence action for severe injuries sus-
tained by plaintiff when, while visiting The Cove Palisades
State Park, he dove into Lake Billy Chinook and hit his head
on a submerged boulder. See McCormick v. State Parks and
Recreation Dept., 293 Or App 197, 199, 427 P3d 199 (2018)
(McCormick I), rev’d and rem’d, 366 Or 452, 466 P3d 10
(2020). Initially, we reversed the trial court’s grant of sum-
mary judgment to the state, concluding that there were dis-
putes of material fact as to whether the state “ ‘permit[ted]’
the recreational use of Lake Billy Chinook within the
meaning of ORS 105.682,” so as to entitle it to recreational
immunity. McCormick I, 293 Or App at 200-01 (brackets in
original). Interpreting the statute differently than we had,
the Supreme Court reversed our decision on that point, con-
cluding that the state had “permitted” recreational use at
The Cove Palisades State Park in a way that could entitle
it to recreational immunity if it met all other criteria for
immunity. McCormick II, 366 Or at 474. It then remanded
the case to us to address plaintiff’s alternative argument
for reversal: that there were factual issues, and a need for
further discovery, on the point of whether the $5 fee that the
state charged plaintiff and his family when they entered the
park by car was a fee for the recreational use of the park—
something that would bar recreational immunity—or a
parking fee, which would not. See id. On consideration of
that issue, we conclude that the trial court did not err in
granting summary judgment to the state. We therefore
affirm.
Under ORS 105.688, the state would not, in general,
be entitled to recreational immunity under ORS 105.682 if
the state “ma[de] any charge for permission to use the land
for recreational purposes.” ORS 105.688(3). A “charge,” how-
ever, “[d]oes not include the fee for a winter recreation park-
ing permit or any other parking fee of $15 or less per day.”
ORS 105.672(1)(c). So, if the $5 fee that the state charged
Cite as 308 Or App 220 (2020) 223
plaintiff was a parking fee, then the fact that the state
charged plaintiff that fee does not deprive the state of recre-
ational immunity.
Below, in opposing the state’s motion, plaintiff
argued that he should be permitted additional discovery
into the purposes for which the fee was used and that, in all
events, the record evidenced factual disputes as to whether
the $5 fee was a parking fee or a charge for using the park.
The trial court rejected those arguments, concluding that
the undisputed facts showed that the $5 fee was for parking,
and, thus, was not an immunity-precluding charge under
ORS 105.688.
On appeal, plaintiff reiterates the arguments he
made below. He asserts that the trial court abused its dis-
cretion by ruling on the state’s summary judgment motion
without allowing plaintiff additional time for discovery in
“how the fee was used.” He also argues that, even without
additional discovery, the record reflects disputes of fact as to
whether the fee was for the use of the park, rather than for
parking. Thus, plaintiff argues, the state was not entitled to
summary judgment on its recreational-immunity defense.
We disagree. First, the trial court did not abuse its
discretion by not waiting for plaintiff to conduct additional
discovery on the uses that the parking fee was put to because,
as the state notes, that evidence likely would be irrelevant
to the question of whether the fee was a parking fee. Absent
indications of a contrary legislative intention, we give com-
mon words their ordinary meanings. State v. Corcilius, 294
Or App 20, 23, 430 P3d 169 (2018). The ordinary meaning
of the phrase “parking fee” in ORS 105.672(1)(c), in our
view, is a fee charged for the privilege of parking. See, e.g.,
Webster’s Third New Int’l Dictionary 833 (unabridged ed
2002) (defining “fee” pertinently as “a charge fixed by law
or by an institution * * * for certain privileges or services”).
Evidence of how collected fees ultimately are used would not
likely bear on what the fee was charged for, that is, what
privilege the fee payer obtained in exchange for paying the
fee, or so the trial court permissibly could conclude in deter-
mining whether to exercise its discretion to await further
discovery.
224 McCormick v. State Parks and Recreation Dept.
As for the existence of factual disputes about the
nature of the $5 fee, on the summary judgment record
before the trial court, all reasonable factfinders would have
no choice but to conclude that the state charged the fee for
the privilege of parking. See Wieck v. Hostetter, 274 Or App
457, 470, 362 P3d 254 (2015) (where party that would have
burden of proof on a particular point at trial seeks summary
judgment on that point, “our task on appeal, as circum-
scribed by our standard of review, is to determine whether
the uncontroverted evidence presented by [the party] in sup-
port of [the] motion for summary judgment is such that all
reasonable factfinders would have to find in” that party’s
favor on the point). Indeed, as the state points out in its
brief, by law—an administrative rule—the fee is for the
privilege of parking and not for the recreational use of the
park. OAR 736-015-0030(1), (6) (providing that the fee for a
day use parking permit at The Cove Palisades State Park,
among other specified state parks, “is a parking fee and not
a charge for recreational purposes under ORS 105.672 to
ORS 105.696”). Thus, the trial court correctly concluded
that there were no disputes of material fact as to whether
the state’s $5 fee was a charge for the recreational use of
The Cove Palisades State Park, and correctly granted sum-
mary judgment to the state.
Affirmed.