S058035, Opinion — Kelly v. Hochberg

267
Argued and submitted September 14, decision of Court of Appeals and
judgment of circuit court affirmed November 18, 2010
Mike KELLY,
Petitioner on Review,
v.
Samuel Israel HOCHBERG,
Respondent on Review.
(CC 06CV0508; CA A136949; SC S058035)
243 P3d 62
CJS, Highways§ 9.
En Banc
On review from the Court of Appeals.*
* Appeal from Josephine County Circuit Court, Thomas M. Hull, ,Judge. 231
Or App 155, 217 P3d 699 (2009).

W. 	Eugene 	Hallman, 	Pendleton, 	argued 	the 	cause
for petitioner on review. Jeffry A. Long, Jeffry Long &
Associates, Lake Oswego, filed the brief for petitioner on
review.
James M. Callahan, Callahan & Shears, P.C., Portland,
argued the cause and filed the brief for respondent on review.
W. Eugene Hallman, Pendleton, filed a brief for amicus
curiae Oregon Trial Lawyers Association.
Jeff J. Payne, Assistant Attorney General, filed a brief for
amicus curiae State of Oregon. With him on the brief were
John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.
Susan D. Marmaduke, Portland, filed a brief for amicus
curiae Oregon Association of Defense Counsel.
BALMER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 349 Or 267 (2010) 	269
BALMER,J.
This case requires us to determine the scope of
immunity under ORS 105.682, the "recreational immunity"
statute, 1 as applied to a motorcycle accident on a road tra-
versing Bureau of Land Management property. The accident
occurred when plaintiff, while riding his motorcycle as part of
a motorcycle rally, collided with an automobile. Plaintiff
brought an action against Josephine County alleging negli-
gent maintenance of Cedar Flat Road where the accident
occurred. The road, however, was owned and maintained by
the federal Bureau of Land Management (BLM). By the time
plaintiffs attorney realized his mistake, the two-year statute
oflimitations for tort actions against the federal government
had passed. Plaintiff then brought this malpractice action
against his attorney for failing to bring a timely negligence
action against BLM. The trial court granted summary judg-
ment for defendant on the ground that, even if defendant had
filed a timely action against BLM, that action would have
been unsuccessful because BLM was immune from liability
under ORS 105.682. The Court of Appeals affirmed. Kelly v.
Hochberg, 231 Or App 155, 217 P3d 699 (2009). We allowed
plaintiffs petition for review and, for the reasons set forth
below, affirm the decision of the Court of Appeals and the
judgment of the trial court.
We take the facts from the Court of Appeals opinion
and the record. Plaintiff attended the Iron Horse Rodeo, a
motorcycle rally near the town of Williams in Josephine
County. One of the planned activities at the rally was the
Poker Run, an event in which riders departed from the Lake
Selmac campground and collected cards at several interme-
diate stops before returning to the lake to compare hands.
The winner received a pot of money based on the entry fees
paid by the participants. Plaintiff paid the entry fee and set
out to collect the required cards.
The first leg of the Poker Run, from Lake Selmac to
Williams, followed Cedar Flat Road. Owing to the checker-
board pattern offederal land ownership in that portion of the
1 All citations are to the current version of the recreational immunity statute.
Although the statute has been amended by the legislature since the events giving
rise to this action, those amendments are not material to our analysis.

270 	Kelly v. Hochberg
state, Cedar Flat Road sometimes is on BLM property and
sometimes is on Josephine County property. Where the road
crosses BLM property, the road is owned and maintained by
BLM. According to BLM documents in the record, BLM
allows use of the road year round for access to BLM property
for administrative and commercial purposes, such as BLM
management activities, logging, and grazing. Some portions
of the road at higher elevations are closed in winter because
of snow. Additionally, BLM has opened its land in the area,
including Cedar Flat Road, to the public for recreational pur-
poses. BLM's Western Oregon Transportation Management
Plan (TMP), which controls BLM's road management for the
area, provides that the public may use Cedar Flat Road "for
vehicle access to recreate on public lands." The TMP also
states that BLM considers Cedar Flat Road to be a "private
government road." While riding his motorcycle on that road,
plaintiff collided with an automobile and suffered injuries.
Plaintiff retained defendant to represent him, and
defendant filed an action in state court on plaintiff's behalf,
naming 	as 	defendants 	the 	other driver 	and 	Josephine
County, which, as noted, defendant mistakenly believed
owned Cedar Flat Road. The complaint alleged that plain-
tiff's accident was caused, in part, by the county's negligent
maintenance of the roadway that had allowed vegetation to
obscure plaintiff's ability to see oncoming traffic. Josephine
County successfully moved for summary judgment in the
underlying action because BLM, rather than the county,
owned and maintained the road where the accident occurred.
By the time defendant realized that BLM owned the road, the
two-year statute of limitations for federal tort claims had
passed. Plaintiff then brought this legal malpractice action
against defendant.
Defendant moved for summary judgment, arguing
that, even if he had named BLM in the original negligence
action and had filed the action in federal court, BLM would
have been immune from tort liability under Oregon's recrea-
tional immunity statute. 2 That statute grants a landowner
2 Under the Federal Tort Claims Act, the federal government is liable "in the
same manner and to the same extent as a private individual under like circum-
stances***." 28 USC§ 2674. Such claims may only be brought in federal court.
28 USC § 1346(b). The Ninth Circuit has applied Oregon's recreational immunity

as349 Or267 	271
immunity from tort liability for personal injuries when the
landowner "permits any person to use the land for recrea-
tional purposes" without charge. ORS 105.682(1). 3 Defendant
asserted that BLM had opened Cedar Flat Road to the public
for recreational purposes, without charge, and that plaintiff
was using the road for a recreational purpose under ORS
105.672(5) 4 when he was injured. For that reason, defendant
argued, BLM was immune from liability. Accordingly, defen-
dant was not liable for legal malpractice because, even if he
had timely filed a federal court action against BLM on behalf
of plaintiff, plaintiff would not have been able to recover any
damages against BLM. The trial court granted defendant's
motion, finding that the Poker Run was within the ambit of
the statute because the entire activity-including participat-
ing in the event, riding the motorcycle, collecting the cards,
and comparing them with other participant's poker hands-
was "intended to and had a recreational purpose."
Plaintiff appealed, arguing that riding his motorcy-
cle on Cedar Flat Road as part of the Poker Run was "travel"
and therefore could not be a "recreational purpose." As noted,
the Court of Appeals affirmed. After examining the text
of ORS 105.672(5), the court determined that plaintiffs
motorcycle riding as part of the Poker Run had a recreational
statute to bar recovery in tort actions against BLM. See OWeal v. United States,
814 F2d 1285 (9th Cir1987) (BLM not liable for injuries sustained when plaintiffs
used BLM road for a recreational purpose).
ORS 105.682(1) provides:
"[Ajn owner ofland 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, gardening, woodcutting or the harvest of special forest products
when the owner of the land either directly or indirectly permits any person to
use the land for recreational purposes, gardening, woodcutting or the harvest
of special forest products. The limitation on liability provided by this section
applies if the principal purpose for entry upon the land is for recreational pur-
poses, gardening, woodcutting or the harvest of special forest products, and is
not affected if the injury, death or damage occurs while the person entering
land is engaging in activities other than the use of the land for recreational
purposes, gardening, woodcutting or the harvest of special forest products."
4 ORS 105.672(5) provides:
~ '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, view-
ing or enjoying historical, archaeological, scenic or scientific sites or volunteer-
ing for any public purpose project."

purpose. The court observed that the statute included several
other forms of travel in the list of outdoor activities that are
"recreational purposes," such as hiking, boating, and water-
skiing. Kelly, 231 Or App at 160-61. Additionally, the court
noted that ORS 105.688(1)(b) defines the land subject to rec-
reational immunity as including "[a]ll roads" and "rights of
way," and if, as plaintiff argued, all travel was excluded from
the definition of the term "recreational purposes," then "the
references to roads and rights of way have no discernible pur-
pose." Id. at 161.
On review, plaintiff renews the arguments that he
made before the Court of Appeals. He first asserts that riding
a motorcycle is travel and that all travel is outside the recre-
ational purposes contemplated by the legislature. According
to plaintiff, this court's decision in Liberty v. State Dept. of
Transportation, 342 Or 11, 148 P3d 909 (2006), 5 stands for
the proposition that "recreational purposes" include only
activities that are recreational in and of themselves and not
activities that have a "recreational" purpose but also have an
additional purpose such as transportation from one place to
another. Because riding a motorcycle, driving a car, or riding
a bicycle have a purpose in addition to recreation (i.e., travel),
plaintiff contends that those activities are not within the
meaningof"recreational purposes" in ORS 105.672(5). Plain-
tiff distinguishes between an ordinary understanding of rec-
reation, which would apply to a Sunday drive in the car, and
the more narrow intention of the legislature in the immunity
statute, which limits "recreational purposes" to activities
that are not dual-purpose.
Plaintiff also contends that the Court of Appeals
erred because determining motorcycle riding to be a "recrea-
tional purpose" within the meaning of the statute would lead
to absurd results. Plaintiff asserts that Cedar Flat Road is a
"public road" because BLM has opened the road for "commer-
cial, administrative, and recreational access." If plaintiff's
motorcycle riding is a "recreational purpose" in this case,
plaintiff argues, then any traveler who subjectively enjoys
5 In Liberty, this court held that crossing land for the purpose of reaching a sep-
arate parcel of land, where one intended to recreate, was not a "recreational pur-
pose." 342 Or at 21.

Cite as 349 Or 267 (2010) 	273
the act of riding or driving would be unable to bring a negli-
gence action for injuries occurring on any public highway.
Finally, plaintiff suggests that if the use of motorcycles, bicy-
cles, or automobiles on roads can be a recreational purpose,
then the law would, in effect, treat a leisure driver and a com-
muter involved in identical accidents differently based solely
on the individual driver's state of mind at the time of the acci-
dent. In plaintiff's view, the legislature did not intend to cre-
ate such "anomalous results" (plaintiff's characterization),
nor did it intend to create a subjective test for determining
what activities are "recreational purposes."
Defendant responds that the Court of Appeals cor-
rectly held that BLM would be immune from liability in the
circumstances at issue here. Defendant argues that BLM
expressly opened its property for recreational use; that the
Poker Run, beginning and ending at the Lake Selmac camp-
ground, had a recreational purpose; and that plaintiff's sole
reason for being on BLM property was to participate in the
Poker Run and related recreational events. Defendant also
disputes plaintiff's claim that the Court of Appeals decision
leads to absurd or anomalous results. Defendant notes that
this case does not present the question ofrecreation on a pub-
lic road at all; rather, he argues, BLM is akin to a private
landowner that allows the public to use its land, including its
roads, for limited purposes. Defendant distinguishes "public
roads," which under state law are open for all lawful uses,
and BLM roads, which BLM opens only for uses permitted by
the agency and retains the authority to close if BLM so
decides. Although BLM permits the public to use Cedar Flat
Road for access to recreate on BLM property, the agency can
revoke the public's access at the agency's discretion, whereas
owners of public roads do not have that ability. Therefore,
according to defendant, this case does not raise the question
whether owners of public roads are immune from tort liabil-
ity related to recreational use of those roads.
Because this is a legal malpractice action, the first
issue is whether plaintiff would have been successful had he
filed a timely tort action against BLM in federal court. See
Harding v. Bell, 265 Or 202, 205, 508 P2d 216 (1973) (plain-
tiff in legal malpractice action "must show that he would
have won the first suit as one step in order to win the second

274 	Kelly v. Hochberg
one" (citation omitted)). Under the Federal Tort Claims Act,
"[t]he United States [is] liable*** in the same manner and
to the same extent as a private individual under like circum-
stances." 28 USC§ 2674. Thus, if a private individual would
have been immune under ORS 105.682 in this case, then so
would BLM. See O'Neal u. United States, 814 F2d 1285, 1287
(9th Cir 1987) (stating liability standard under FTCA as
applied to BLM). We turn to the question whether BLM
would have been immune under ORS 105.682, based on the
facts set out above.
As noted, ORS 105.682 confers limited immunity on
landowners that permit others to use their land for "recrea-
tional purposes." The dispute between the parties here is
over the meaning of the term "recreational purposes" and
whether plaintiff's participation in the Poker Run was such a
purpose. ORS 105.672(5) provides:
" '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."
As a reading of that statute demonstrates, it does
not actually define the term "recreational purposes," but,
rather, it illustrates what the term means by providing an
open-ended list of "outdoor activities" that are "included"
within the term "recreational purposes." Examining the out-
door activities that the statute lists, travel emerges as a com-
mon characteristic of several of the named activities. Hiking
and boating are forms of travel, for example, and scenic or
historic sites may be "view[ed]" and "enjoy[ed]" through the
act of traveling. The enumerated examples thus indicate that
the fact that an outdoor activity involves travel is not a basis
for excluding that activity from the definition of"recreational
purposes." Moreover, the legislature included the terms
"roads" and "rights of way" in the definition of the areas to
which recreational immunity applies. ORS 105.688(1)(b).
Although a person certainly may hike on a road, nothing in
the statute suggests that hiking is the only outdoor activity
on a road that would qualify as a "recreational purpose"
within the meaning of ORS 105.672(5). Rather, it appears

Cite as 349 Or 267
that recreational purposes can include other modes of moving
from one place to another-that is, traveling--on a road, as
long as the other requirements of the statute are met. See
Coleman v. Oregon Parks and Recreation Dept., 221 Or App
484, 489, 190 P3d 487 (2008), rev'd on other grounds, 34 7 Or
94, 217 P3d 651 (2009) (applying immunity under ORS
105.682 to mountain biking).
Here, there is little question that the Poker Run, as a
whole, was recreation. Although it involved travel by motor-
cycle on a road, it was, as the name of the event made clear, a
poker game, with an entry fee, the collection of a number of
playing cards, and the comparison of one's hand with those of
other players to see who would win the jackpot. It was quin-
tessentially a 	game-the kind of "play," "diversion," or
"entertainment" that comes within the ordinary definition of
"recreation." See Webster's Third New Int'l Dictionary 1899
(unabridged ed 2002) (defining "recreation"). Accordingly,
plaintiff's ride on the BLM road was not a means of accessing
recreation-the card game-but rather his activity of riding
to collect the cards was part and parcel of the recreational
purpose itself.
Plaintiff 	misinterprets 	this 	court's 	decision 	in
Liberty when he asserts that motorcycle riding is not a rec-
reational purpose because it can have an end other than rec-
reation, such as travel. In Liberty, this court identified two
nonexclusive traits of the enumerated outdoor activities in
ORS 105.672(5): (1) they take place outdoors, and (2) the
activities are recreational in and of themselves, i.e., none of
the specified activities, with the possible exception of hiking,
"is solely a means to a different recreational activity." 342 Or
at 20-21. Liberty does not stand for the categorical proposi-
tion that only activities that can be nothing other than rec-
reation can come within the meaning of ORS 105.672(5).
Rather, Liberty illustrates the application of ejusdem generis
to the specific question of statutory interpretation at issue in
that case: Is crossing land for the purpose of reaching a sep-
arate parcel of land, where one intended to recreate, a "rec-
reational purpose"? The reason that crossing land solely to
access a recreational site is not within the statute is because
the act of crossing does not share the characteristic of being
recreational and is instead only a means to access recreation.

276 	Kelly v. Hochberg
As noted, plaintiff here had already traveled to and arrived at
the site of the recreational activity-he had gained "access"-
before the Poker Run began. His purpose in traveling on
BLM land when the accident occurred was not to gain access
to the site, but instead was to participate in the Poker Run,
i.e., it was recreational.
Plaintiff also asserts that, if BLM is immune from
liability on the facts here, then immunity would attach any
time a driver or passenger in a vehicle is subjectively enjoy-
ing himself or herself while traveling on any public highway.
We disagree. The extent to which recreational immunity
would apply to activities on Oregon's public roads is not
before us in this case. The road here is one that BLM policy
treats as a private government road, which BLM has opened
for recreational, administrative, and commercial purposes; it
is not a public thoroughfare. See O'Neal, 814 F2d at 1287
(applying Oregon recreational immunity statute to bar recov-
ery by hunters injured when driving on BLM logging road);
compare Seyler v. United States, 832 F2d 120, 122 (9th Cir
1987) (holding that Idaho recreational immunity statute did
not bar recovery for accident on Bureau ofindian Affairs road
because road was a "public thoroughfare").
Plaintiffs motorcycle accident did not occur on a pub-
lic road. Oregon law defines a "public road" as "a road over
which the public has a right of use that is a matter of public
record." ORS 368.001(5) (emphasis added). Although access
to public roads may be restricted, the reasons for imposing
such restrictions are limited to public safety concerns and
protecting the road itself from damage. ORS 810.030. Here,
the record demonstrates that Cedar Flat Road is not a "public
road" but is, instead, designated by BLM as a "private gov-
ernment 	road." 	BLM's 	Western 	Oregon 	Transportation
Management 	Plan 	(TMP) 	states 	that 	"[p]ublic 	use 	of
BLM roads is allowed or not allowed by BLM policy or admin-
istration decision and not by right." The TMP notes that
BLM "is not a public road authority and cannot dedicate
public 	roads" 	and 	that 	BLM 	roads 	do 	not 	fit 	the
criteria for public roads established by the United States
Secretary of Transportation.

Cite as 349 Or 267
Regarding Cedar Flat Road, the TMP states that
public use of the road is limited to "casual use for vehicle
access to recreate on public lands." 6 Moreover, federal regu-
lations make clear that BLM may close roads on its property
in order to meet its management objectives, whenever cer-
tain broad criteria are met. 43 CFR 8364.1. 7 In contrast to
roads that are "public roads" under Oregon statutes, BLM
could close Cedar Flat Road if it determined that the use of
the road by the public was hindering BLM management
objectives. Because there is no public right of use and BLM
may close its roads to meet management objectives, Cedar
Flat Road is not a "public road." See Otteson v. United States,
622 F2d 516, 518-19 (10th Cir 1980) (distinguishing Forest
Service road from 	public thoroughfare based on Forest
Service's ability to close the road for management purposes);
O'Neal, 814 F2d at 1287 (same); compare Seyler, 832 F2d at
122 (recovery not barred by Idaho recreational immunity
statute, where federal agency lacked authority to exclude use
ofroad for any lawful purpose).
We conclude that plaintiff had a recreational pur-
pose when he entered BLM's property on Cedar Flat Road as
a participant in the Poker Run. Had defendant timely filed a
negligence action on behalf of plaintiff in federal court, BLM
would have been able to assert immunity from tort liability
under ORS 105.682. The trial court correctly granted defen-
dant's motion for summary judgment on plaintiffs legal mal-
practice claim.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
6 "Casual use" is defined by regulation as "activities ordinarily resulting in no
or negligible disturbance of the public lands, resources, or improvements." 43 CFR
2801.5(b).
7 43 CFR 8364.l(a) provides:
"To protect persons, property, and public lands and resources, the author-
ized officer may issue an order to close or restrict use of designated public
lands."