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.