OTLA Trial Lawyer Fall 2020

52 Trial Lawyer • Fall 2020 imminent danger of further abuse. The Supreme Court noted the trial court did not need to find that the respondent had a specific plan to abuse the petitioner. Instead, the court concluded the trial court had to find the respondent was reasonably likely to abuse the petitioner in the near future. The Supreme Court noted the passage of time, the separation and the fact the respondent had not acted on or repeated the threat to kill the petitioner were factors to consider but did not preclude a finding of an immi- nent risk. Instead, the court found per- suasive the fact that a party’s separation may heighten the risk of abuse and that the respondent had threatened to kill the petitioner if she left him. Moreover, while not all erratic and angry behavior is grounds for a protective order, where the behavior is persistent and carried out by a respondent who has raped and threat- ened to kill the petitioner if she leaves him, a trial court reasonably may infer from those facts that the respondent is reasonably likely to abuse the petitioner in the near future. State has recreational immunity from suit for injuries sustained on public lands under broad interpretation of “permit” as used in ORS 105.682. McCormick v. State , 366 Or 452 (2020), Duncan, J. Shenoa Payne repre- sented the plaintiff. Kathryn Clarke filed the amicus brief on behalf of OTLA. The plaintiff was seriously injured after diving off a pier and hitting his head on a submerged boulder in Lake Billy Chinook, which is surrounded primarily by Cove Palisades State Park, state roads and highways, and state-designated Day Use Areas, such as the one being used by the plaintiff. The plaintiff brought a negligence action against the state and the state moved for summary judgment, arguing it was entitled to recreational immunity as the “owner” of the land that “permitted” the public to use the land under ORS 105.682. The plaintiff ar- gued a landowner cannot “permit” the public’s use of land within the meaning of the recreational immunity statute when the public already had a right to recreate on the land under both the public trust doctrine and the public use doctrine. The trial court granted the state’s motion, the Court of Appeals re- versed that decision, and the Supreme Court allowed review. On review, the Supreme Court first concluded “the plain text of ORS 105.682(1) [provides] that an owner can ‘permit’ recreational use of its land in a variety of ways, ranging from express consent to mere tolerance, and that it can ‘permit’ that use even if the public already has a right to recreate on the land from another source, such as an easement or the public trust doctrine.” Because the court further concluded an owner can “permit” recreational use of its land even if it cannot prohibit such use, it deter- mined a contextual reading of related statutes and the legislative history of ORS 105.682 did not support a narrower interpretation of the term “permit” for purposes of recreational immunity. The court determined that to hold otherwise would be inconsistent with the three primary purposes for affording landowners recreational immunity: (1) creating an incentive for landowners not to charge for the recreational use of their land; (2) encouraging landowners to fa- cilitate use of their land by creating access and making improvements to that land; and (3) giving landowners an incentive not to restrict the recreational use of their land to the greatest extent possible. Under Horton , the statutory cap on noneconomic damages violates the remedy clause in the absence of the legislature enacting the statute to ad- vance a state interest with constitu- tional underpinnings or in a capped amount capable of restoring the right that has been injured. Sheets Continued from p 51