Argued and Submitted March 4, 2015.
Appeal from the United States District Court for the District of Oregon. D.C. No. 3:11-cv-00432-AC. John V. Acosta, Magistrate Judge, Presiding.
CERTIFICATION REQUESTED; SUBMISSION VACATED.
Certification to Oregon Supreme Court
The panel certified two questions to the Supreme Court of Oregon:
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" of land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700, and therefore immune from liability for their negligence?
2. If such employees are " owners" under the Public Use of Lands Act, whether the Act, as applied to them, violates the remedy clause of the Oregon Constitution, Article I, section 10?
Thane W. Tienson and Christine N. Moore (argued), Landye Bennett Blumstein LLP, Portland, Oregon, for Plaintiff-Appellant.
Harry Auerbach, Chief Deputy City Attorney, Office of City Attorney, Portland, Oregon, for Defendants-Appellees.
Before: Raymond C. Fisher, Richard A. Paez and Sandra S. Ikuta, Circuit Judges.
ORDER CERTIFYING QUESTIONS TO THE OREGON SUPREME COURT
Richard A. Paez, United States Circuit Judge, Presiding
Pursuant to the parties' joint motion, we certify two questions to the Oregon Supreme Court. Plaintiff Emily Johnson filed this state law negligence action against Scott Gibson and Robert Stillson, two park maintenance employees of the City of Portland, after she fell and was injured while jogging in Portland's Tom McCall Waterfront Park. This appeal raises two questions that may be determinative of Johnson's cause of action: (1) whether city maintenance workers are " owners" of the park and hence entitled to immunity under the Oregon Public Use of Lands Act, ORS 105.672 to 105.700; and (2), if so, whether the Public Use of Lands Act violates the remedy clause, Art. I, section 10, of the Oregon Constitution. Because it appears to this court that there is no controlling precedent on these questions in the decisions of the Oregon Supreme Court and the Oregon Court of Appeals, we respectfully certify them to the Oregon Supreme Court.
I. Factual and Procedural History
The following facts are undisputed. See W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 364-65, 811 P.2d 627, 630 (1991). Waterfront Park is owned by the City of Portland and maintained through the City's Parks and Recreation Bureau. It is generally open to the public for recreational use.
At all relevant times, defendant Scott Gibson was an employee of the City, employed as a park technician for the Parks and Recreation Bureau. As part of his duties, Gibson repaired and performed maintenance in City parks, including Waterfront Park. Waterfront Park was Gibson's primary responsibility. On July 15, 2009, while working at Waterfront Park, Gibson noticed a broken sprinkler head located near the Salmon Springs Fountain. To diagnose the problem with the sprinkler, Gibson dug a hole approximately a foot deep and 18 inches wide. After determining that the sprinkler head would have to be replaced with a part he did not have in stock at the location, Gibson placed a single cone on top of the sprinkler head to serve as a warning and left the site. At the time, Gibson expected to return with a replacement part the next day, but he did not do so. Gibson would have used a more permanent barricade to mark the hole if he had anticipated the delay in completing the repair.
At all relevant times, defendant Robert Stillson was an employee of the City working as a maintenance supervisor with the Parks and Recreation Bureau. As part of his duties, Stillson supervised a crew of park maintenance workers, including Gibson. Stillson testified that workers had
three means for securing a temporary hole -- a cone, a piece of plywood to cover the hole and a barricade, such as a sawhorse. He testified that the hole created by Gibson should have been marked at least by a cone. Stillson provided his employees no formal training about how best to mark a hazard like the one Gibson created on July 15.
In the middle of the day on July 16, 2009, plaintiff Emily Johnson was jogging in Waterfront Park when she stepped in the hole that Gibson had created and fell. The hole was not marked, by a cone or otherwise, at the time of Johnson's accident. Johnson alleges ...