Monday, March 15, 2010

Duties to others on your land can differ, even if you claim they are trespassing.

Below, I have pasted a section from a brief I filed a couple of years ago concerning the duties a landowner owes to others on their land. Here, the landowner had strung barbed wire up across a known ATV path that crossed her property, specifically to deter ATV use. My client attempted to use the ATV trail, as he had done for years. The barbed wire caught him by the arm, resulting in very nasty injuries. Indeed, he is quite lucky to be alive.

From day one, the landowner argued that my client was a trespasser, and as such, she owed him no duty whatsoever. She filed a motion to dismiss the case based on that position. I filed a cross motion to keep her in the case, and won. It ultimately settled shortly after I won the motion to keep the case intact.

In any event, I figured that I would post the legal analysis below. Note: for those that don't know me, I have a very concise style of writing, and choose not to beat issues to death. The courts tend to prefer this style of writing, so I stick with my natural tendencies.

The legal portion of the motion follows (I included the summary of facts, as it helps put the legal issues into context):


COMES NOW Plaintiff, and in response to Defendant’s Motion for Summary Judgment, hereby moves this Court for an Order granting partial summary judgment in his favor as to Defendant’s First and Third Affirmative Defenses on the ground that there is no genuine issue as to any material fact and that the Court should rule as a matter of law that Plaintiff was not a trespasser, and that ORS 105.682 does not apply to this case.

This motion is based on ORCP 47, the pleadings, the points and authorities below, the Declaration of Tim Williams, and exhibits filed therewith.


This action arises out of an all terrain vehicle (ATV) incident that took place on July 22, 2006 in the Three Rivers Community on Lake Billy Chinook. Plaintiff was riding an ATV on a trail (“the trail”) known by Defendant to have ATV traffic. The trail is on Defendant’s property. Without warning, and two years after she had purchased the property, Defendant decided to string barbed wire across the trail. Plaintiff struck the barbed wire while riding his ATV, causing severe injury.

Defendant purchased the property in 2004. (Deposition of Carol Devencenzi, 9:13). She visited her property roughly once per month thereafter. (Depo. Devencenzi, 13:1). Defendant’s property line apparently begins approximately 50-60 feet outside of her main gate. (Depo. Devencenzi, 21:1-3). This is in the foreground of the photos of the main gate, submitted by Defendant’s expert in his affidavit. (Depo. Devencenzi, 21:7; Affidavit of Robert R. Povey submitted by Defendant, Exhibit C). As one is looking at her main gate, the trail at issue was closer to the camera, and to the right of the gate (Aff. Povey with Exhibits A-C).

The Three Rivers Community is an ATV community. (Deposition of Brock Blacklaw, 30:2). Defendant was aware that there was much ATV riding in the community, particularly in the spring and summer. (Depo. Devencenzi, 11:21-12:7). Prior to Mr. Blacklaw’s injury, Defendant personally observed ATVs using the trail on her property. (Depo. Devencenzi, 32:5). Defendant was aware that ATVs frequently passed between the three posts from which the offending barbed wire was strung, and had observed additional and frequent ATV tracks in this area. (Depo. Devencenzi, 32:9-12; 33:9-12). She was also aware that ATVs had used a connecting trail from the area where the offending barbed wire was strung to get to her neighbor’s property. (Depo. Devencenzi, 36:10-15).

Defendant was particularly aware of the ATV use on her property in the handful of months preceding Plaintiff’s injury. (Depo. Devencenzi, 34:13-17). She had a berm built to divert water on her property, and was aware that ATV riders were breaking down the berm. (Depo. Devencenzi, 36:20-23). She had spoken to a couple of neighbor kids she observed riding over the berm in early May 2006. (Depo. Devencenzi, 36:25-37:6). She returned to the property at the end of May 2006, and was aware that people were still riding in the area, evident from further breakdown of the berm, as well as tracks. (Depo. Devencenzi, 37:10-15).

As a result, in May 2006, Defendant strung barbed wire between a number of posts, including two posts on either side of the trail at issue, the photographs of which are attached as Exhibit 1 to the Declaration of Tim Williams filed with this motion. (Depo. Devencenzi, 38:7; 50:21; 40:20-42:2, Deposition exhibits 6-8). She did not warn her neighbors of the newly strung wire. (Depo. Devencenzi, 53:11). This was old, rusty wire she and a friend found wrapped around one of the posts. (Depo. Devencenzi, 40:4-6). She strung the wire approximately three feet off the ground. (Depo. Devencenzi, 42:6-7).

Defendant claims to have placed approximately six strips of wire hanging across the two expanses of the wire as markers. (Depo. Devencenzi, 42:11-22; 44:18-45:2). The morning after Mr. Blacklaw was injured, Defendant recalled seeing only three or four of these markers still on the wire. (Depo. Devencenzi, 44:17). A photo of one of the markers she claimed to have placed on the wire is included. (Depo. Devencenzi, 45:21, Exhibit 8). This is the same size as when she initially put the marker up, though perhaps a little faded. (Depo. Devencenzi, 46:7-8). There were no other warnings to indicate the wire had been newly strung across the trail, though Defendant did have the ability to make the wire more obvious. (Depo. Devencenzi, 48:20-49:9).

On July 22, 2006, Mr. Blacklaw was a guest at the community. He was at Defendant’s neighbor’s house (Brian Brophy), waiting for his friend to come up from the lake. (Depo. Blacklaw, 47:24-25). Concerned over how long it was taking his friend to appear, he hopped on an ATV to seek out his friend. (Depo. Blacklaw, 47:25-48:1). He rode on the road through Defendant’s property, out her gate, and further down the road to look for his friend, and once his friend’s vehicle was spotted, he turned the ATV around. (Depo. Blacklaw, 57:10-25). As he approached Defendant’s gate, he downshifted into first gear, and proceeded to the right of the gate on the trail. (Depo. Blacklaw, 58:9-18). The trail led back to the Brophy house, and served as an alternative route. (Depo. Blacklaw, 60:6-8; 59:20-24). As he proceeded between the two posts, he struck the barbed wire and was injured. (Depo. Blacklaw, 58:12).

Mr. Blacklaw was injured by the wire that is stretched between the two posts shown in the lower photograph of Exhibit B of the Affidavit of Robert R. Povey (the wire is difficult to see). (Depo. Blacklaw, 36:21). The barbed wire was rusty in color, and was not marked or otherwise flagged. (Depo. Blacklaw, 68:12-22; 69:3). Mr. Blacklaw never saw the wire prior to hitting it. (Depo. Blacklaw, 63:23-25).


In her Motion for Summary Judgment, Defendant seeks summary judgment on two grounds: 1) that Mr. Blacklaw was a trespasser and she owed him no duty, and 2) that she is immune from liability under ORS 105.682. Each of those positions is without merit.

1. Mr. Blacklaw was not a trespasser on Defendant’s property.
The Court should rule as a matter of law that Mr. Blacklaw was not a trespasser, as: 1) he was on an easement; and 2) he had implied consent to use Defendant’s property.

     a. Mr. Blacklaw was lawfully riding on an easement on Defendant’s property.
Mr. Blacklaw was travelling on land included in a travel easement at the time of his injury. (Aff. Povey, Exhibit A). The easement specifically allows for motor vehicle travel. Defendant was aware of a travel easement on her property, including the area outside of her main gate, which she believed to have extended 50 feet beyond her gate, and including the spot where she strung the barbed wire. (Depo. Devencenzi, 22:4-11; 23:22; Aff. Povey with Exhibits A-C). Mr. Blacklaw was also aware of the easement. (Depo. Blacklaw, 42:23). Because Mr. Blacklaw, as a guest of the Three Rivers Community, was rightfully travelling within a marked easement, he cannot be considered a trespasser.

     b. Mr. Blacklaw had implied consent to use the trail.
Defendant never objected to Plaintiff’s use of her property for ATV riding. A failure to object to another person’s entry may be a sufficient indication of consent, if the possessor knows of the other’s intention to enter. Denton v. L. W. Vail Co., 23 Or App 28, 36 (1975) (quoting RESTATEMENT (SECOND) OF TORTS, 172 §220 comment c (1965)).

Mr. Blacklaw previously lived next to Defendant’s property. (Depo. Blacklaw, 13:20-21; 14:11-14). During that time, he rode an ATV on and around her property. (Depo. Blacklaw, 25:21-23). He had been riding ATVs in Three Rivers for 10 years. (Depo. Blacklaw, 29:6-9; 47:6). It was understood that, unless a piece of private land was marked “No Motorized Vehicles,” other association members were free to ride upon it. (Depo. Blacklaw, 28:4-7). Mr. Blacklaw regularly rode ATVs on the trail. (Depo. Blacklaw, 42:14-16). Never in his 10 years of riding had a property owner told him that he cannot ride upon their property. (Depo. Blacklaw, 30:15).

As indicated above, Defendant was aware of the riding for roughly two years prior to the incident. Mr. Blacklaw recalls nothing posted to indicate that he was not allowed to ride in that particular area. (Depo. Blacklaw, 43:11). If Defendant had changed her mind as to consenting to the riding of ATVs on her property, she should have done more than string barbed wire across the trail with little to no warning of the new danger. Without more, Mr. Blacklaw had implied consent to continue to use the property. Thus, the Court should grant partial summary judgment in Plaintiff’s favor in regard to Defendant’s First Affirmative Defense.

2. Even if Mr. Blacklaw were considered a trespasser, Defendant breached her duty.

     a. If Mr. Blacklaw was a trespasser, he was a “known trespasser.”
An exception to the rule of restricted liability for trespassers exists when a possessor of land knows, “or from facts within [the possessor’s] knowledge should know, that persons constantly and persistently intrude upon some particular place within the land.” Dento, supra., 23 Or App at 36 (quoting RESTATEMENT (SECOND) OF TORTS, 183 §334 comment d (1965)). In such a case, a possessor is subject to liability for physical harm caused by carrying on an activity involving a risk of death or serious bodily harm without exercising reasonable care for the safety of others. Id.

Here, Defendant admits that she was well aware that her property was continuing to be used by ATV riders, evident from the deterioration of her dirt berm. The law is clear that she cannot lay a trap for such known trespassers to fall prey. Therefore, if the court were to determine that Mr. Blacklaw was a trespasser, he was a known trespasser, and there is a material issue of fact as to whether Defendant breached her duty of care.

     b. Even if Mr. Blacklaw was not a “known trespasser,” Defendant’s conduct was wanton.
Even if the jury were to determine that Mr. Blacklaw was not a known trespasser, Defendant neveretheless breached her duty of care. A possessor of land owes the duty to trespassers to refrain from willfully or wantonly injuring the trespasser. Baker v. Lane County, 28 Or App 53, 56 (1977); Denton v. L. W. Vail Co., 23 Or App 28, 35 (1975) (replacing a barbed wire fence across new road construction site not prepared for public use, and where roadbed was impassible and blocked by large boulders, with no evidence that trespassers were using the area not held to be wanton). A jury may rightfully find that Defendant’s actions of stringing up a single strand of barbed wire with little or no warnings or markings across a trail known to be used by ATV riders was wanton. Thus, if the jury determines Mr. Blacklaw to be a trespasser, there is an issue of material fact as to whether or not Defendant breached her duty to avoid wanton injury.

3. ORS 105.682 simply does not apply.
The court should rule as a matter of law that ORS 105.682 does not apply to this case for the following reasons: 1) Defendant’s land was not open to the general public; 2) Defendant’s position is that she did not hold her land open for recreational use; and 3) Mr. Blacklaw was not recreating at the time of his injury.

     a. Defendant’s land was not open to the general public, as the Three Rivers Community is a private, gated community.
In enacting ORS 105.682, the Oregon legislature intended for recreational immunity to apply only when the landowner grants permission to a member of the general public to use private land for recreational purposes. Conant v. Stroup, 183 Or App 270, 280 (2002). The court analyzed the statue in great length, and concluded that the land must be held open to the public at large, and not simply a segment or particular class of the public, in order to fully preserve Oregon’s premises liability law. Id. at 281. The court summarized the rule as follows: “If private landowners will make their lands available to the general public for recreational purposes, the state will “trade” that public access for immunity from liability that might result from the use of the property.” Id. at 275-276 (emphasis in original). Here, Defendant’s land was not open to the general public.

Defendant admits Three Rivers Community is a private community. (Depo. Devencenzi, 10:23; 11:16). The Community is not open to the public unless specifically invited by a community member. (Depo. Devencenzi, 11:4-13). The land is gated, and one needs a pass code or key to get in. (Depo. Devencenzi, 11:2). Because the community land is not open to the general public, and is only open to community property owners, or to those with specific invitation (i.e., it is only open to a specific class of people), the statue does not apply. Conant v. Stroup, supra at 281. Plaintiff is entitled to partial summary judgment on the issue.

     b. Defendant claims that her land was not open to recreational use, thus disqualifying her from protection under ORS 105.682.
Because Defendant has taken the position that her land was not open to recreational use, she disqualified herself from any protection that statue might give, should it be found to apply to Three Rivers land, and thus cannot prevail on summary judgment on the issue.

Moreover, Defendant claims to have had one small “No Trespassing” sign posted on a post on her property (though it was posted further onto her property than where the incident occurred, and not at her property line, and had been posted prior to her buying the property, which she knew did not stop the ATV riders in the past). (Depo. Devencenzi, 53:25-54:13; Aff. Povey, Exhibit C). If the Court determines that the statue would apply to Defendant’s land, such a sign creates an issue of material fact whether or not her land was open for recreational use. Id. at 281.

     c. Even if ORS 105.682 applied to Defendant, it does not apply in this case, as Mr. Blacklaw was not recreating, but was merely crossing the property.
ORS 105.682 grants immunity to only the owner of the land that is itself used for “recreational purposes;” however, “recreational purposes” does not include crossing one person's land to gain access to another person's land to recreate there. Liberty v. State Dept. of Transp., 342 Or 11, 18-19 (2006). Here, Mr. Blacklaw was simply crossing Defendant’s land (on the easement) to get back to the Brophy property. His intention was simply to go down the road to meet his friend and come back, and not to go offroading for sport. (Depo. Blacklaw, 65:2-10). Indeed, he wasn’t even wearing his usual ATV riding garb. (Depo. Blacklaw, 64:4-24). The trail led back to the Brophy house, and served as an alternative route. (Depo. Blacklaw, 60:6-8; 59:20-24). Simply put, he was not recreating at the time of his injury, and thus, the statue does not apply.


The Court should grant partial summary judgment in favor of Plaintiff on Defendant’s First and Third Affirmative Defenses. The record is clear that Mr. Blacklaw was not a trespasser at the time of his injury. The record is also clear that ORS 105.682 does not apply given the facts of this case.

Saturday, February 20, 2010

OTLA Annual Bend Winter CLE

I had an Oregon Trial Lawyers Association ("OTLA") board meeting yesterday, which was very interesting, as usual. We actually got a ton of work done during the meeting. It's amazing how hard we volunteer board members work to protect the rights of our cients! It's also amazing how hard the insurance companies work to block those efforts!

After the OTLA board meeting, our firm hosted an OTLA reception at our Bend office , which was well attended, and an absolute blast. Some of these lawyers can get pretty wild once they've had a few drinks in them! I wanted to go downtown with a group of them after the reception, but I chose to go home instead, as my daughter was under the weather. It just didn't seem fair for me to party while my wife was stuck at home with a sick three year old.

Today, OTLA presented our annual Bend winter half-day CLE ("Continuing Legal Education") program on hot topics in motor vehicle litigation, workers compensation litigation, consumer law, appeals, nursing home litigation, and employment law. The educational segments were presented by OTLA board members (I spoke at last year's on deposition preparation). Guess who was the moderator/master of this year's ceremony? Me! It was a great program, and I kept things light between each segment. I was always sort of a class clown growing up, so I actually found it easy to do. Unlike many, I enjoy speaking to people and entertaining them. I guess I found the right profession, as that's essentially what I do in front of the jury.

The CLE went off without a hitch, and was very well attended. I can't wait to begin planning for next year's Bend CLE!

- Tim Williams
Your Oregon Injury Attorney

Tuesday, February 16, 2010

Statutory Breakdown of Third Party Workers Compensation Claims

I previously discussed Workers’ Compensation and Third Party Workers’ Compensations claims. This blog’s purpose is to explain the statutory breakdown of Third Party Workers’ Compensations claims.


Assume a person, "Jimmy," works as a delivery driver. While on the job, Jimmy is rear-ended by another driver, "Marty." Essentially, Jimmy has two claims. The first is a Workers’ Compensation claim since Jimmy was on the job at the time he was injured. The second is a claim against Marty directly.

Workers’ Compensation pays for Jimmy’s accident related medical expenses and 2/3 of his lost wages. Within 60 days of the injury, Jimmy will have to make an election regarding how he wants to proceed. Jimmy can elect to have Workers’ Compensation pursue Marty, seeking reimbursement of what it paid out. Or, Jimmy can hire an attorney making sure Marty pays Workers’ Comp and pays the additional 1/3 of Jimmy’s lost wages plus pain and suffering (Workers’ Comp does not pay pain and suffering).

Assuming Jimmy hires an attorney to pursue Marty and a settlement is reached or the case is tried to judgment, below is how the breakdown works.

Pursuant to Oregon law, the attorney takes the first 1/3 of the settlement or judgment. The attorney’s costs are then reimbursed. Of the balance remaining, the injured worker gets the first 1/3. Next, the Workers’ Compensation carrier is reimbursed up to the amount of its lien (what it paid out). Finally, if there is a balance, it goes to the injured worker.

Let’s assume Worker’s Compensation paid $10,000 in accident related medical expenses, plus $5,000 (out of $7,500) for lost wages. This means the Workers’ Compensation carrier has a lien on the case for $15,000. Now, assume a settlement is reached in the amount of $50,000. Thus, below is the statutory breakdown:

Settlement amount:      $50,000

- Attorney fees (1/3):   $16,666.67

- Costs:                        $300

= Balance:                    $33,033.33

- Injured worker (1/3): $11,011.11

= Balance:                   $22,022.22

- Comp lien:                $15,000

= Balance:                   $7,022.22 (to injured worker after Comp lien is paid back).

Total to Jimmy:           $18,033.33

Here, the remaining balance of $7,022.22 goes to Jimmy, making his total $18,033.33. Of note, Jimmy received $5,000 in lost wages from Workers’ Comp that he does NOT need to pay back, so he actually recovers $23,033.33 and all of his medical expenses are paid.

-Arne Cherkoss
Dwyer Williams Potter Attorneys, LLP
Your Oregon Personal Injury Attorneys

Tuesday, January 12, 2010

If the doctor only knew...

A doctor recently called my office on behalf of my client and her patient. The doctor was upset that the patient’s insurance company was closing his claim after one year. She blamed my office for the fact that his PIP year was about to run. My staff tried to explain to the doctor that this was the law in Oregon and my office was not “closing his claim.” However, the doctor refused to let anyone else speak. Had my office been given a chance to explain, this is what we would have said [The patient’s and doctor’s names have been removed for privacy reasons]:
Dear Dr. ___

You called my office on December 9, 2009 regarding Mr.___. First and
foremost, it is a joy to see a doctor be such an advocate for her patient. That
seems to be increasingly rare nowadays. To that end, please be assured that you
and I are on the same team and we both want what is best for Mr. ___. Based on
what I learned, I’m not certain you understand Oregon’s insurance law. The
purpose of this letter is educate you on Oregon law as it pertains to motor
vehicle accidents.

Personal Injury Protection – Oregon Insurance

When a person is injured either occupying or otherwise using a motor
vehicle, the insurance for that vehicle covers the accident related medical
expenses for up to one year and a minimum of $15,000. Here, Mr. ____’s PIP claim
runs (by law) on December 13, 2009.

Neither I nor this firm “close” claims. That is what an insurance
company does. Regardless of how much treatment Mr. ___ needs, his PIP claim will
end on December 13, 2009.

Treatment after the PIP Year

Oftentimes, an injured person will need more than one year of
treatment. Oregon law states that after PIP is exhausted or the PIP year is
over, the injured party’s own health insurance is next in line. If a person does
not have health insurance, that person is responsible for the medical bills
until they reach a settlement or receive a judgment.

To help clients who fall into the latter category, namely no insurance
or high deductibles, I am willing to write letters of protection to the
providers (such as yourself). A letter of protection is an agreement wherein the
provider agrees to continue treating the injured person but to hold their
account open. In exchange for providing treatment, the attorney agrees to pay
the provider from the proceeds of the settlement or judgment before the injured
party receives any money. Fewer providers are accepting these types of letters

Mr. ___’s claim

As I understand it, you are recommending additional treatment for Mr.
__. As you now know, his PIP claim is nearly expired so his health insurance is
next in line. However, Mr. ___informs me that he has a high deductible that he
cannot afford.

At this point, I am offering to write a letter or protection for your
continued treatment of Mr. ___. What he needs is for you to bill him (but hold
his account open) up to his deductible for treatment you provide. After that,
his health insurance will pay for his accident related medical expenses.

If you have any questions or concerns, feel free to contact me
directly. Please read more blogs and articles on our website


Arne Cherkoss

Wednesday, December 23, 2009

New cell phone law to take effect soon!

Just a quick reminder that beginning January 1, 2010 it will be illegal to use a cell phone or texting device while driving. As an exception, drivers 18 years of age or older may use the devices if they are utilizing a hands-free accessory. There is no exception for drivers under 18 years old. If a driver is cited for this offense it is a Class D violation. This carries a $142 fine and adds 2 points to your driving record.

-Tim Williams
Your Oregon pesonal injury attorney.

Thursday, December 10, 2009

A change for the better

ORS 20.080 will undergo some big changes beginning January 1, 2009. As a bit of background, this statute makes it economically feasible for persons with smaller claims to hire a lawyer in their case. After a demand for settlement is made, and a certain amount of time goes by, the claimant can file his or her claim in court. If the end result is no better than the last offer made by the tortfeasor, the claimant must pay his or her own attorney fees. However, if the end result is better than the last offer made by the tortfeasor, then the court may order the tortfeasor to pay some or all of the claimant's attorney fees. The claim threshold is set to increase from the current limit of $5,500 up to $7,500 beginning January 1, 2010. Thus, if your claim is worth $7,500 or less after January 1, 2010, you may well get your legal fees paid for should the wrongdoer fail to act reasonably in negotiations. While there are other tweaks to notice and time limitations, the increase in the claim threshold is the most significant change we will see to the law beginning next month.

- Tim Williams
Your Oregon personal injury attorney

Wednesday, September 9, 2009

What to do with a "small" claim?

Sometimes the value of a case is small enough that it really doesn’t make economic sense to hire a lawyer. For example, imagine a scenario wherein someone damages your car, and the repair cost is $3,000. Generally, you have two options: you can hire a lawyer by the hour or on a contingency basis.

By the hour

You can hire a lawyer at $200 an hour to recover your damages. However, if the lawyer puts five hours of work into to your case and recovers 100% of your damages, you still are out $1,000 after paying the lawyer. Under this scenario, you have not been made whole.


You can hire a lawyer on a “contingent” basis. This means the lawyer gets a percentage of your recovery. One third of the overall recovery is a typical contingency arrangement. That means that if the lawyer recovers the full amount of damages, you will still only receive $2,000 after the lawyer is paid.

What is a person to do is such a scenario? It would be nice if the insurance company would just “pay the dough they know they owe.” Unfortunately, these insurance companies know they are in the power position, because you can’t afford an attorney. As a result, their regular practice is to low ball you during negotiations.

Oregon Law to the Rescue

The Oregon Legislature enacted ORS 20.080 to assist people in Oregon in just these types of situations. Basically, ORS 20.080 allows an attorney to make a demand of $5,500 or less to the at-fault party. If there is no offer, or a low offer, within 10 days of the 20.080, notice, the attorney and his client can file the case in court. If the jury awards even $1 more than was offered by the at-fault party, YOU win. Even more important, attorney fees can be assessed against the at-fault party. This means that you will be fully compensated and the other side will have to pay your attorney for his or her time.

ORS 20.080 provides an incentive for lawyers to take on these small cases and has the power to make people whole. Bottom line: ORS 20.080 levels the playing field in cases worth $5,500 or less.

The Future of ORS 20.080

Beginning January 1, 2010, the limits of ORS 20.080 will be raised to $7,500. This means that more people will be covered and will be able to secure representation to fight for their right to fair compensation.

-Arne Cherkoss
Dwyer Williams Potter Attorneys, LLP, your Oregon personal injury attorneys.