S056563, Opinion — Coleman v. Oregon Parks and Recreation Dept.

94
Argued and submitted June 11, decision of Court of Appeals reversed;
case remanded to Court of Appeals for further proceedings September 24, 2009
See 234 Or App 132, 227 P3d 815 (2010)
Bradley COLEMAN
and Bonnie Coleman,
husband and wife,
Petitioners on Review,
v.
OREGON PARKS AND RECREATION DEPARTMENT,
by and through the State of Oregon,
and John Does 1-3,
Respondents on Review.
(CC 05CV0272; CAA131472; SC S056563)
217 P3d 651
CJS, Motor Vehicles§ 168.
En Banc
On review from the Court of Appeals.*
George W. Kelly, Eugene, argued the cause and filed the
brief for petitioners on review.
David B. Thompson, Assistant Attorney General, Salem,
argued the cause for respondents on review. With him on the
* Appeal from Coos County Circuit Court, Richard L. Barron, Judge. 221 Or
App 484, 190 P3d 487 (2008).

Cite as 34 7 Or 94 (2009) 	95
brief were John R. Kroger, Attorney General, and Erika L.
Hadlock, Acting Solicitor General.
W. Eugene Hallman, Hallman & Dretke, Pendleton, filed
a brief for amicus curiae Oregon Trial Lawyers Association.
WALTERS,J.
The decision of the Court of Appeals is reversed. The case
is remanded to the Court of Appeals for further proceedings.
Balmer, J., filed a dissenting opinion in which Kistler and
Linder, JJ., joined.

96 	Coleman v. Oregon Parks and Recreation Dept.
WALTERS,J.
A landowner is immune from suit for injuries that
arise out of the recreational use of its land when the owner
"permits any person to use the land for recreational pur-
poses[.]" ORS 105.682(1). However, that immunity applies
only if the landowner "makes no charge for permission to use
the land[.]" ORS 105.688(2)(a). In this action for injuries aris-
ing out of plaintiffs' use of a state park, the trial court granted
summary judgment for the state, concluding that the state
was entitled to recreational immunity under ORS 105.682.
The Court of Appeals affirmed. We conclude that the state
made a charge for permission to use the park and, thus, that
the state was not entitled to summary judgment based on
recreational immunity. We therefore reverse the decision of
the Court of Appeals and remand the case to that court for
further proceedings.
The uncontested facts that give rise to the issue
before us are as follows. 	Plaintiffs Bradley and Bonnie
Coleman were camping at William M. Tugman state park
(Tugman Park) when Bradley rode his bike off the end of a
bridge and suffered personal injuries. Plaintiffs filed a com-
plaint in Coos County Circuit Court, alleging that the state
negligently had failed to maintain a ramp at the end of the
bridge and therefore was liable for Bradley's injuries and
Bonnie's loss of consortium.
The state moved for summary judgment, arguing,
among other things, that plaintiffs' claims were barred by
recreational immunity under ORS 105.682(1). The state filed
an affidavit and supporting documents explaining that the
state did not charge a fee to enter the park; instead, the only
fees that the state charged were "associated with using camp-
sites" and "for using the gazebo facility" in the park. Other-
wise, the state averred, "[i]ndividuals can enter the [park]
and ride their bicycles on the trails for free." The state also
argued that Bonnie Coleman had failed to provide timely
notice of her tort claim as required by ORS 30.275. 1 The trial
1 ORS 30.275, part of the Oregon Tort Claims Act, provides, in part:
"(l) No action arising from any act or omission of a public body* * * shall
be maintained unless notice of claim is given as required by this section.

Cite as 347 Or 94
court agreed with both of the state's arguments and granted
its summary judgment motion. 2
The Court of Appeals also agreed with the state that
it was entitled to recreational immunity. Coleman v. Oregon
Parks and Recreation Dept., 221 Or App 484, 491, 190 P3d
487 (2008). The court concluded that the overnight camping
fee imposed by the state was not a "charge" as that term is
used in ORS 105.688(2)(a), and, accordingly, that the state
had not forfeited its recreational immunity. Id. The court did
not reach the state's argument regarding Bonnie Coleman's
alleged failure to give notice of her tort claim. Id. at 487 n 2.
We allowed plaintiffs' petition for review.
Before further describing the parties' arguments, we
set out the recreational immunity statutes in greater detail.
ORS 105.676 declares that it is the state's public policy "to
encourage owners of land to make their land available to the
public for recreational purposes* **by limiting their liabil-
ity toward persons entering thereon for such purposes * * *."
As mentioned earlier, ORS 105.682 grants immunity to land-
owners who open their land to the public for recreational
purposes:
"(1) 	Except as provided by subsection (2) of this sec-
tion, and subject to the provisions of ORS 105.688, an owner
of land is not liable in contract or tort for any personal
injury, death or property damage that arises out of the use
of the land for recreational purposes, woodcutting or the
harvest of special forest products when the owner of land
either directly or indirectly permits any person to use the
land for recreational purposes, woodcutting or the harvest
of special forest products. The limitation on liability pro-
vided by this section applies if the principal purpose for
"(2) Notice of claim shall be given within the following applicable period of
time, not including the period, not exceeding 90 days, during which the person
injured is unable to give the notice because of the injury or because of minority,
incompetency or other incapacity:
"(a) For wrongful death, within one year after the alleged loss or injury;
"(b) For all other claims, within 180 days after the alleged loss or injury."
2 The state also argued that it was entitled to discretionary immunity under
ORS 30.265(3)(c), which provides that public bodies and their officers, employees,
and agents are immune from liability for "[a]ny claim based upon the performance
of or the failure to exercise or perform a discretionary function or duty, whether or
not the discretion is abused." The trial court did not reach that issue.

98 	Coleman v. Oregon Parks and Recreation Dept.
entry upon the land is for recreational purposes, woodcut-
ting or the harvest of special forest products, and is not
affected ifthe injury, death or damage occurs while the per-
son entering land is engaging in activities other than the
use of the land for recreational purposes, woodcutting or
the harvest of special forest products.
"(2) 	This section does not limit the liability of an owner
of land for intentional injury or damage to a person coming
onto land for recreational purposes, woodcutting or the har-
vest of special forest products."
ORS 105.688(2)(a) limits the immunity provided in ORS
105.682:
"The immunities provided by ORS 105.682 apply only if
* 	* the owner makes no charge for permission to use the
land[.]"
ORS 105.672 (2005) 3 offers definitions for terms used in the
recreational immunity provisions:
"(1) 	'Charge' means the admission price or fee asked
by any owner in return for permission to enter or go upon
the owner's land.
'"* * * * *
"(3) 	'Land' includes all real property, whether publicly
or privately owned.
''* * * * *
"(5) 'Recreational purposes' includes, but is not limited
to, outdoor activities such as hunting, fishing, swimming,
boating, camping, picnicking, hiking, nature study, outdoor
educational activities, waterskiing, winter sports, viewing
or enjoying historical, archaeological, scenic or scientific
sites or volunteering for any public purpose project."
"Like the Court of Appeals, we cite the 2005 version of ORS 105.672 because,
in 2007, the legislature amended the definition of"charge" to read:
"(l) 'Charge':
"(a) Means the admission price or fee requested or expected by an owner
in return for granting permission for a person to enter or go upon the owner's
land.
"(b) Does not mean any amount received from a public body in return for
granting permission for the public to enter or go upon the owner's land."
ORS 105.672(1) (2007).

Cite as 347 Or 	99
Plaintiffs' position before the trial court, the Court of
Appeals, and this court is that, because the state charged a
fee 	for 	camping-a 	"recreational 	purpose" 	under 	ORS
105.672(5)-at Tugman Park, the state was not immune
from liability for their damages. Plaintiffs contend that,
"[w ]hen a landowner charges a fee for any use of some aspect
of the land (e.g., for parking, for camping, for swimming, for
docking a boat, etc.), the landowner has required a payment
'for permission to use the land' and 'to go upon the land' "and,
therefore, is not immune from liability. Plaintiffs argue that
that result is consistent with the stated policy of the recrea-
tional immunity provisions because, when the landowner
imposes any charge to use the land, the landowner no longer
making its land available for the public's recreational use
without payment.
The state's position before the trial court and the
Court of Appeals was that the camping fee that it charged at
Tugman Park did not meet the 	statutory definition of
"charge" because it was not a fee "to enter or go upon the
owner's 	land." 	ORS 	105.672(1). 	The 	state 	argued 	that
"charge," as used in ORS 105.688(2)(a) to preclude recrea-
tional immunity and as defined in ORS 105.672(1), refers to
money that a landowner requires a person to pay before that
person is allowed access to the land, not a fee that a land-
owner requires a person to pay to make a particular use of the
land after the person has entered the land. According to the
state, the camping fee that it imposed was not an entry or
access fee and therefore did not meet the statutory definition
of a "charge." Thus, the state argued, it was entitled to rely on
the immunity provided by ORS 105.682.
Before this court, however, the state focuses its argu-
ments as to the meaning of ORS 105.688(2)(a) not on the
word "charge" but on the words "the land." The state con-
tends that a landowner is immune from suit if the landowner
"makes no charge for permission to use the land," ORS
105.688(2)(a) (emphasis added), viz., the specific property on
which the injury occurs. The state argues that, even if the fee
associated with using a campsite meets the definition of a
charge under ORS 105.672(1), that fee is a charge for permis-
sion to use only the campground and not the distinct part of
"the land" on which Bradley was injured. According to the

100 	Coleman v. Oregon Parks and Recreation Dept.
state, because Bradley was injured while using the biking
trail at Tugman Park, which can be accessed by the public
without charge, recreational immunity shields the state from
liability for plaintiffs' injuries. If we accept that argument,
the state urges, we need not consider whether the Court of
Appeals correctly held that the park's camping fee was not a
"charge" under ORS 105.672(1) (2005).
The issue before us is whether the state demon-
strated on summary judgment that it qualified for recrea-
tional immunity as a landowner that permitted the public to
use its land for recreational purposes under ORS 105.682 and
that "[made] no charge for permission to use the land," as that
phrase is used in ORS 105.688(2)(a). It is the latter qualifi-
cation that plaintiffs challenge and to which we now turn.
As noted, the state adduced evidence in support of its
motion for summary judgment that the state required that
campers pay a fee to camp at Tugman Park. To determine
whether that fee is a "charge for permission to use the land,"
we examine the text and context of that statutory provision to
discern the legislature's intent. See State v. Gaines, 346 Or
160, 171-72, 206P3d1042 (2009) (illustrating process). 4
We begin with the word "charge." Charge is statuto-
rily defined as "the admission price or fee asked by an owner
in return for permission to enter or go upon the owner's land."
ORS 105.672(1) (emphases added). The parties agree, as do
we, that that camping fee was not an "admission price" and
was not "in return for permission to enter" the park. The
question then is whether the camping fee is a fee to "go upon"
the state's land. The Court of Appeals relied on the definition
of "go" and "upon" and explained that those words mean "to
move on a course over or in contact with the land." Coleman,
221 	Or App 	at 	490 	(citing 	Webster's 	Third 	New 	Int'l
Dictionary 971, 2517 (unabridged ed 2002)). The court con-
cluded that the camping fee was not such a fee:
1 When the parties request that the court do so, the court also will consider leg·
islative history and may utilize that history if the history is helpful to the court's
analysis. Gaines, 346 Or at 172. In this case, the parties did not refer this court to
relevant legislative history, and the court does not deem it necessary to consult the
legislative history of the statutes at issue.

Cite as 347 Or 94 	101
"Payment of a fee is required to engage in a specific activity
in those areas-that is, camping overnight-and presuma-
bly to exclude others from a particular campsite. But pay-
ment of a fee is not required to move on a course over and in
contact with an area designated as a campsite. In other
words, payment of the fee merely entitles a member of the
public to do something on the land while moving about on
the land that another may not do."
Id. at 491 (footnote omitted). Simply stated, the Court of
Appeals ruled that the legislature intended to preclude
immunity for a landowner that exacts a fee to enter its land to
use that land for a recreational purpose, but to grant immu-
nity to a landowner that exacts afee for that recreational use.
For reasons that we will explain, we conclude that the legis-
lature did not intend that result.
First, the legislature granted immunity to an owner
of land that "permits any person to use the land for recrea-
tional purposes[.]" ORS 105.682(1) (emphasis added). Such
landowners are immune from claims for damages that arise
out of "the use of land for recreational purposes[.]" ORS
105.682(1) (emphasis added). Because it is the landowners'
permission to use and the public's use that give rise to recre-
ational immunity, it is illogical to suppose that the legisla-
ture disregarded fees that landowners exact for permission to
use or for the public's use of their lands in imposing limita-
tions on the application ofrecreational immunity.
Second, the words of the statute that follow the word
"charge" are "for permission to use." ORS 	105.688(2)(a)
(emphasis added). Unless the statutory definition of the word
"charge" clearly excludes fees charged for permission to use
land, which it does not, it appears from the text of the statute
that the legislature intended the meaning of the 	word
"charge" to include fees exacted for use ofland as well as fees
exacted for entry to land.
As noted, reference to the statutory and dictionary
definitions of the word "charge" discloses that "charge"
means a fee to move over or on land. A person moves over or
on land when he or she enters the land, but a person also
moves over or on land when he or she makes use of that land
for recreational purposes. In our view, the legislature's use of

102 	Coleman v. Oregon Parks and Recreation Dept.
the defined word "charge" and the phrase "for permission to
use the land" are not inconsistent. "Charge" encompasses
both fees to enter land and fees to use land as long as that use
entails moving over or on the land for a recreational purpose.
Our interpretation of the word "charge" to encom-
pass fees for recreational use of land is supported by the leg-
islature's use of that same word in ORS 105.688(2)(c). That
subsection provides that recreational immunity applies only
if "[t]he owner charges no more than $75 per cord for permis-
sion to use the land for woodcutting." (Emphases added.) In
paragraph (c), the legislature used the defined term "charge"
to mean a fee to use land for a particular purpose, woodcut-
ting. ORS 105.688(2)(a) and (c) together require that, to qual-
ify for immunity, a landowner must impose no fee to enter or
use its land, except a fee ofless than $75 per cord to use the
land for woodcutting. Had the legislature wanted to extend
immunity to landowners that impose minimal fees for uses of
land other than woodcutting, such as camping, the legisla-
ture certainly could have done so.
In this case, the state conceded that it charged a fee
to camp at Tugman Park. A person moves over and on the
land to camp on it, and camping is a recreational purpose.
Therefore, the state made a charge for permission to use
Tugman Park and thus forfeited recreational immunity. It
does not matter that the use in which plaintiff was engaged
at the time of his injury was not the precise use for which the
state exacted a fee. ORS 105.682(1) provides that, if a land-
owner is entitled to immunity from injuries that arise out of
the use of land for recreational purposes, immunity extends
as long as the injured person's principal purpose for entry is
recreational, even if the person was engaged in other non-
recreational activity at the time of injury. So, for instance, if
a person enters a park to swim, but is injured while changing
a truck tire, the landowner nevertheless is entitled to recre-
ational immunity. We interpret ORS 105.688(2)(a) similarly.
To be entitled to immunity, the landowner must make no
charge for permission to use the land. If the landowner
makes a charge for permission to use its land, immunity does
not apply, even ifthe injured person is not engaged in the use
that was the basis for the charge at the time of injury. So, as
in this case, if the landowner makes a charge to use a park for

Cite as 347 Or 94 	103
camping, the landowner forfeits its immunity, even if a
camper is injured while biking.
The state contends, however, that the statutory pro-
vision at issue contains two additional words that compel a
different result: "the land." The state argues that, even if it
made "a charge for permission to use" Tugman Park, that
charge was only for permission to use the campsites in its
park, not for permission to use the hiking/biking trails that
were also located in the park, accessible by the public at no
charge. Plaintiff was injured on those trails, and, the state
asserts, there is no charge for permission to use that "land."
Like the word "charge," the word "land," as used in
ORS 105.688(2)(a), is a defined term, meaning "all real prop-
erty, whether publicly or privately owned." ORS 105.672(3).
The state argues that "real property" includes both an entire
parcel of land and any distinct, identifiable piece of land
within that parcel, and that, by use of the article "the," the
legislature conditioned immunity on a landowner's making
no charge for use of "the" distinct part of the land on which
the injury occurred. Why, queries the state, would the legis-
lature preclude recreational immunity for the owner of a
100-acre property that charged to use an equestrian riding
center located on 10 acres of that land, but made 90 acres
available to the public for free, when the plaintiff was injured
hiking on the separate and distinct 90 acres?
Although the state poses an interesting hypothetical
question, we need not answer it in this case. The state
charged a fee to camp at Tugman Park. As campers, plaintiffs
were entitled to use all of Tugman Park, including its bike
trails. As previously explained, having charged for "permis-
sion to use" its park, the state forfeited recreational immu-
nity even though plaintiff was injured while engaged in a rec-
reational use-bicycling-that was not the use that was the
basis for the charge-camping.
By so concluding, we do not necessarily reject the
state's argument that "the land," as that phrase is used in
ORS 105.688(2)(a), may refer to a specific, separate, and dis-
tinct piece ofreal property upon which a plaintiff is injured in
circumstances other than those presented on summary judg-
ment in this case. Instead, we emphasize that the state did

104 	Coleman v. Oregon Parks and Recreation Dept.
not establish on summary judgment that it had divided
Tugman Park into two separate pieces of land with distinct,
identifiable boundaries, one of which could be used only by
persons who paid a charge and one of which was open to the
public for free. 5 The state also did not establish that, as a
camper, plaintiffs' use was limited to the piece of land asso-
ciated with the charge.
Because the state did not establish that it made "no
charge for permission to use" Tugman Park, it did not estab-
lish that it was entitled to recreational immunity under ORS
105.682 or that it was "entitled to prevail as a matter oflaw."
ORCP 4 7 C. The trial court therefore erred in granting sum-
mary judgment to the state on that basis. We remand to the
Court of Appeals for consideration of the state's argument
regarding Bonnie Coleman's failure to give notice of her tort
claim, an issue that that court did not reach.
The decision of the Court of Appeals is reversed. The
case 	is 	remanded 	to 	the 	Court 	of Appeals for 	further
proceedings.
BALMER, J., dissenting.
The legislature has declared that it is the public pol-
icy of the State of Oregon "to encourage owners of land to
make their land available to the public for recreational pur-
poses * * *." ORS 105.676. To that end, the legislature has
provided that such landowners are "not liable * * * for any
personal injury, death or property damage that arises out of
the use of the land for recreational purposes * * *." ORS
105.682(1). That immunity is available, however, only if
"[t]he owner makes no charge for permission to use the land."
ORS 105.688(2)(a). In this case, the majority holds that, if a
landowner charges a fee for the use of one part of its land, the
landowner may not assert recreational use immunity as to a
user who pays the fee, even for injuries that occur on other
land that is open for recreational use without any charge. In
my view, that interpretation is not supported by the statu-
tory wording and will significantly limit the immunity that
5 The dissent argues that the campground was a distinct part of the park
because it had an entry point, showers, and restrooms, but the record does not
establish that the campground had identifiable boundaries.

Cite as 347 Or 	105
the legislature intended to confer on landowners who make
their land available to the public for recreational purposes.
As a result, the legislature's policy choice will be thwarted.
For those reasons, I respectfully dissent.
Although certain facts in this case are disputed, oth-
ers are not, and-based on my analysis of the legal issues-
the facts that are undisputed support the trial court's entry of
summary judgment for the state. It is undisputed that plain-
tiffs and their friends visited Tugman State Park, that they
intended to camp at one of the designated campsites at the
campground there, and that plaintiffs (or their friends) paid
the fee that is required to secure a campsite and were
assigned campsite C22 in the campground. It also is undis-
puted that, although the state charges a fee for a campsite,
the state charges no fee to enter the park or to use the park
trails for hiking or biking. It is undisputed that, after
arriving at Tugman State Park and drinking beer, plaintiff
Bradley Coleman and a friend (as the complaint alleges)
"decided to explore the amenities of the State Park on their
mountain bikes." They "rode down a nice wood chip trial [sic]
along the lake that was open without restriction." Along the
trail, Coleman and his friend "came to a small wooden bridge
that did not have a ramp on the end from which [they were]
approaching." They "lifted their bikes onto the bridge and
rode across" to the trail on the other side. After proceeding up
the trail on the other side "about 1/4 mile" beyond the bridge,
Coleman and his friend turned around, "descended back
down the trail toward the bridge," and recrossed the bridge.
Coleman rode his bike back across the bridge, but fell at the
end, causing himself serious injury.
Coleman and his wife sued the state, alleging that
its negligence was the cause of his injuries. In its answer, the
state asserted several affirmative defenses, including the
so-called "recreational use" immunity at issue on review. As
noted, ORS 105.682(1) provides that "an owner ofland is not
liable" for injuries that "arise[ ] out of the use of the land for
recreational purposes * * *." However, that immunity is
available only if"[t]he owner makes no charge for permission
to use the land." ORS 105.688(2)(a). The majority concludes
that, because "[t]he state charged a fee to camp at Tugman
Park," recreational use immunity does not apply. 347 Or at

106 	Coleman v. Oregon Parks and Recreation Dept.
103. However, that conclusion is at odds with the text of the
recreational use immunity statute and would produce incon-
sistent and anomalous results in many cases.
The majority first rejects the argument that the
state relied on below and that the Court of Appeals accepted.
That argument is that, because the charge that plaintiffs (or
their friends) paid was not a charge to "enter or go upon the
owner's land," see ORS 105.672(1)(a) (defining "charge" for
purposes of ORS 105.672 to 105.696) (emphasis added), but
rather was a charge to engage in the particular recreational
use of "camping," the fact that the state charged the fee did
not preclude it from asserting recreational immunity. I agree
with the majority that, as used in this statute, the word
"charge" includes both "fees to enter land and fees to use land
as long as that use entails moving over or on the land for a
recreational purpose." 347 Or at 101-02.
However, the majority also rejects the argument
that the state makes in this court: that, because the state's
charge was for permission to use a campsite at the park, and
the state does not charge a fee to enter or use the park or to
hike or bike on the trails in the park, the state did not charge
for permission to use "the land" where Coleman's injury
occurred. For that reason, the state argues, it may assert rec-
reational immunity. To me, that argument is persuasive.
The relevant statute provides immunity from liabil-
ity for an injury "that arises out of the use of the land for rec-
reational purposes, * * * when the owner of land either
directly or indirectly permits any person to use the land for
recreational 	purposes 	* * *." 	ORS 	105.682(1) 	(emphasis
added). That immunity applies only if "[t]he owner makes no
charge for permission to use the land." ORS 105.688(2)(a)
(emphasis added). As I read the statute, if a landowner
imposes a charge for permission to use one part of its land,
the immunity does not apply to an injury that arises from the
recreational use of that land. However, if the landowner does
not impose a charge for the recreational use of "the land" on
which a user's injury arose, the landowner may assert recre-
ational use immunity.

Cite as 34 7 Or 94 	107
Plaintiffs' position is that if a landowner charges a
fee to use any part of the owner's land, then the landowner
may not assert recreational use immunity as to injuries that
may have occurred anywhere on the landowner's land. How-
ever, that reading ignores the references in the statutes to
"the land"-"the land" that the landowner permits any person
to use for recreational purposes, ORS 105.682(1); "the land"
that is being used principally for such purposes when an
injury arises, id.; "the land" that the landowner permits any
person to use without a charge. ORS 105.688(2)(a). The leg-
islature's use of the definite article "the" suggests that the
legislature did not intend the immunity (or lack of immunity)
to apply to all land that may be owned by a landowner, but
rather to some specific part of the landowner's land-and
immunity (or lack of immunity) will depend on whether the
landowner charges a fee for the use of that specific land. The
most sensible reading of the statute is that it confers immu-
nity on a landowner for injuries that occur on the particular
land that the landowner has permitted the public to use for
recreational purposes, but that immunity is not available if
the landowner charges a fee for the use of that particular
land.
The majority cites the statutory definition of "land,"
for 	purposes of recreational immunity, 	ORS 	105.672(3),
which provides that "'[l]and' includes all real property,
whether publicly or privately owned." That definition pro-
vides no assistance in this case. The definition makes clear
that the statute applies to both public and private land and to
what Oregon law includes within the term "real property"
including, for example, structures that come within the defi-
nition ofreal property. Here, however, no one argues that the
statute does not apply because the accident occurred on prop-
erty owned by the state or because it occurred on a con-
structed bridge, rather than on a trail. The statutory defini-
tion of"land" thus does not support the majority's position.
The majority concedes that, if the state "had divided
Tugman Park into two separate pieces of land with distinct,
identifiable boundaries, one of which could be used only by
persons who paid a charge and one of which was open to the
public for free," 34 7 Or at 104, then the state might be able to

108 	Coleman v. Oregon Parks and Recreation Dept.
assert recreational immunity as to injuries that occur on the
"free" land. 1 The majority concludes, however, that the state
did not divide "the land" in a way that would permit it to
assert immunity for Coleman's injury, which occurred on a
bike trail that anyone could use for free, when it had charged
him (or his friends) for the use of a campsite.
The majority's conclusion seems to rest upon one of
two premises, neither of which is persuasive. First, the
majority states that "[a]s campers, plaintiffs were entitled to
use all of Tugman Park, including its bike trails," 34 7 Or at
103, and concludes that recreational use immunity does not
extend to a bike trail that those who pay camping fees are
permitted to use. The majority's position ignores the fact
that, although, as campers, plaintiffs were entitled to use the
entire park, including the bike trails, they would have been
entitled to use the bike trails (and all the rest of the park
except the campsites and the separately rented yurts and
gazebo) even if they had not been campers and even without
paying any fee-like all other members of the public. Thus,
under the majority's reasoning, if a person decides to rent a
campsite (or to rent the gazebo), the state may not assert rec-
reational immunity as to injuries suffered by that person
while riding on a bike trail, but the state may assert such
immunity as to a person who does not rent a campsite and
who incurs an identical injury in an identical place on the
land. For example, under the majority's theory, if a friend of
Coleman's making a day visit to Tugman Park, for which
there is no charge, had joined Coleman on his bike ride, and
both had been injured on the same bridge, the state could
assert recreational immunity as to Coleman, but not as to the
friend. That anomalous result is inconsistent with the immu-
nity statute and with the public policy underlying it.
Alternatively, the majority opinion could be read to
suggest that if the state had posted notices or otherwise
clearly delineated "the land" for which a charge was imposed
for recreational uses from "the land" for which no charge was
1 Arguably, the state did just that. A person who fails to pay the fee for a camp-
site may not stay at the campground. As discussed in the text, the maps in the sum-
mary judgment record and the allegations in the complaint make clear that the
campground is separate from the bike trail where Coleman was injured.

Cite as 347 Or 94 	109
imposed, then the state might be able to assert recreational
immunity as to injuries that arose from recreational activi-
ties on the latter. The statute, of course, makes no reference
to notices, signs, or fences. It simply states that, ifthere is no
charge for recreational use of "the land," the immunity may
be asserted as to injuries that occur on "the land." As I read
the summary judgment record, Coleman's injury occurred
when he was using "the land" for which the state makes no
charge-that is, the bicycle trail in Tugman State Park that
is described in the complaint. As noted, it is undisputed that
the state makes no charge for the day use of the park or the
use of the trails. It charges for campsites, extra vehicles at
overnight campsites, and rental of yurts or the gazebo. Maps
that are part of the summary judgment record show that the
campsite where plaintiffs stayed is in a distinct location from
the trail over Clear Creek where the accident occurred. Plain-
tiffs' campsite was in the "campground," a separate area with
a registration booth at the entry point, showers, and rest-
rooms. 	The 	complaint 	itself, 	quoted 	above, 	describes
Coleman's ride away from the campground-down a wood
chip trail along the lake, and across a bridge.
The summary judgment record demonstrates that
Coleman's accident did not occur at the campsite for which he
or his friends were charged a fee-or at the campground
where the campsite was located. It did not occur on "the land"
for which the state charges a fee for those who want to engage
in recreational activities there. Rather, the accident occurred
on a trail some distance away from the campsite. It occurred
on "the land" that the state permits the public to use for rec-
reational purposes without a fee. For that reason, the state
may assert the recreational immunity defense available
under ORS 105.682(1). I dissent from the majority's contrary
conclusion.
Kistler and Linder, JJ., join in this opinion.