FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILY JOHNSON,

Plaintiff-Appellant,

v.

SCOTT GIBSON;

ROBERT STILLSON,

Defendants-Appellees.

No. 13-35087

D.C. No.

3:11-cv-00432-AC

ORDER CERTIFYING

QUESTIONS TO THE

OREGON SUPREME COURT

Appeal from the United States District Court

for the District of Oregon

John V. Acosta, Magistrate Judge, Presiding

Argued and Submitted

March 4, 2015—Portland, Oregon

Filed April 21, 2015

Before: Raymond C. Fisher, Richard A. Paez

and Sandra S. Ikuta, Circuit Judges.
2 JOHNSON V. GIBSON

SUMMARY*

Certification to Oregon Supreme Court

The panel certified two questions to the Supreme Court of

Oregon:

1. Whetherindividual employeesresponsible

for repairing, maintaining and operating

improvements on City-owned recreational

land made available to the public for

recreational purposes are “owners” of

land, as that term is defined in the Oregon

Public Use of Lands Act, ORS 105.672 to

105.700, and therefore immune from

liability for their negligence?

2. If such employees are “owners” under the

Public Use of Lands Act, whether the Act,

as applied to them, violates the remedy

clause of the Oregon Constitution, Article

I, section 10?

COUNSEL

Thane W. Tienson and Christine N. Moore (argued), Landye

Bennett Blumstein LLP, Portland, Oregon, for PlaintiffAppellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
JOHNSON V. GIBSON 3

Harry Auerbach, Chief Deputy City Attorney, Office of City

Attorney, Portland, Oregon, for Defendants-Appellees.

ORDER

Pursuant to the parties’ joint motion, we certify two

questions to the Oregon Supreme Court. Plaintiff Emily

Johnson filed this state law negligence action against Scott

Gibson and Robert Stillson, two park maintenance employees

of the City of Portland, after she fell and was injured while

jogging in Portland’s Tom McCall Waterfront Park. This

appeal raises two questions that may be determinative of

Johnson’s cause of action: (1) whether city maintenance

workers are “owners” of the park and hence entitled to

immunity under the Oregon Public Use of Lands Act, ORS

105.672 to 105.700; and (2), if so, whether the Public Use of

Lands Act violates the remedy clause, Art. I, section 10, of

the Oregon Constitution. Because it appears to this court that

there is no controlling precedent on these questions in the

decisions of the Oregon Supreme Court and the OregonCourt

of Appeals, we respectfully certify them to the Oregon

Supreme Court.

I. Factual and Procedural History

The following facts are undisputed. See W. Helicopter

Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 364–65,

811 P.2d 627, 630 (1991). Waterfront Park is owned by the

City of Portland and maintained through the City’s Parks and

Recreation Bureau. It is generally open to the public for

recreational use.
4 JOHNSON V. GIBSON

At all relevant times, defendant Scott Gibson was an

employee of the City, employed as a park technician for the

Parks and Recreation Bureau. As part of his duties, Gibson

repaired and performed maintenance in City parks, including

Waterfront Park. Waterfront Park was Gibson’s primary

responsibility. On July 15, 2009, while working at

Waterfront Park, Gibson noticed a broken sprinkler head

located near the Salmon Springs Fountain. To diagnose the

problem with the sprinkler, Gibson dug a hole approximately

a foot deep and 18 inches wide. After determining that the

sprinkler head would have to be replaced with a part he did

not have in stock at the location, Gibson placed a single cone

on top of the sprinkler head to serve as a warning and left the

site. At the time, Gibson expected to return with a

replacement part the next day, but he did not do so. Gibson

would have used a more permanent barricade to mark the

hole if he had anticipated the delay in completing the repair.

At all relevant times, defendant Robert Stillson was an

employee of the City working as a maintenance supervisor

with the Parks and Recreation Bureau. As part of his duties,

Stillson supervised a crew of park maintenance workers,

including Gibson. Stillson testified that workers had three

means for securing a temporary hole – a cone, a piece of

plywood to cover the hole and a barricade, such as a

sawhorse. He testified that the hole created by Gibson should

have been marked at least by a cone. Stillson provided his

employees no formal training about how best to mark a

hazard like the one Gibson created on July 15.

In the middle of the day on July 16, 2009, plaintiff Emily

Johnson was jogging in Waterfront Park when she stepped in

the hole that Gibson had created and fell. The hole was not

marked, by a cone or otherwise, at the time of Johnson’s
JOHNSON V. GIBSON 5

accident. Johnson alleges she suffered a severe and

permanent disabling injury from the fall.

In April 2011, Johnson filed a civil complaint against

Gibson and Stillson in the United States District Court for the

District of Oregon. Her complaint asserts a single claim of

negligence under Oregon law. Federal jurisdiction arises

from the parties’ diversity of citizenship. See 28 U.S.C.

§ 1332.

In April 2012, the defendants moved for summary

judgment under Rule 56 of the Federal Rules of Civil

Procedure. They argued they were immune from liability for

Johnson’s state negligence claim under the Public Use of

Lands Act, ORS 105.672 to 105.700. That Act provides

immunity from negligence liability to an “owner” that makes

its land available to the public for recreational use:

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.

ORS 105.682(1) (2009). It further defines an “owner” as “the

possessor of any interest in any land, including but not

limited to possession of a fee title. ‘Owner’ includes a tenant,

lessee, occupant or other person in possession of the land.” 

ORS 105.672(4) (2009).
6 JOHNSON V. GIBSON

The defendants argued they were “owners” of Waterfront

Park for purposes of the Public Use of Lands Act because

they were “responsible for the maintenance, repair and

operation of Waterfront Park.” In making this argument, they

relied on two decisions by the Oregon Court of Appeals.

In the first of these decisions, Denton v. L.W. Vail Co.,

23 Or. App. 28, 541 P.2d 511 (1975), the plaintiff was injured

on land owned by the federal Bureau of Land Management

(BLM) when he rode his motorcycle into a barbed wire fence

stretched across a new section of highway that was under

construction. See id. at 30, 541 P.2d at 512. The plaintiff

brought a negligence action against the state Department of

Transportation, the L.W. Vail Co. (the construction

contractor), and the Peters and Wood Company (the

subcontractor doing the grading work), alleging they were

negligent in placing strands of barbed wire across the road

knowing that it was used by vehicular traffic and without

posting warnings. See id. at 31, 541 P.2d at 512–13. The

court held that the defendant contractors were “persons in

possession of the land,” and hence were immune under the

Public Use of Lands Act. Id. at 37, 541 P.2d at 515.

In the second of these decisions, Brewer v. Department of

Fish & Wildlife, 167 Or. App. 173, 2 P.3d 418 (2000), a

mother and daughter died while swimming in a creek below

a fish migration dam owned and maintained by various

defendants. See id. at 176, 2 P.3d at 420. The plaintiffs filed

a wrongful death action against numerous state agencies and

the Swackhammer Ditch Improvement District, alleging that

the defendants were negligent because the dam was built in

such a manner that it created a dangerous undertow. See id.

at 176, 2 P.3d at 420–21. Relying on Denton, the court held

that two of the defendants – the Oregon Department of Fish
JOHNSON V. GIBSON 7

and Wildlife (ODFW) and the Swackhammer Ditch

Improvement District – were “owners,” and hence entitled to

immunity, under the Public Use of Lands Act because they

maintained and operated the dam:

In Denton, we found that those who were

constructing improvements on land were

“owners” within the meaning of the definition

found in the Act. If those who merely

construct improvements on land qualify as

owners, certainly those who maintain and

operate improvements on land also fall within

the scope of that definition. The trial court

correctly concluded that ODFW and

Swackhammer come within the ambit of the

Act for purposes of immunity.

Id. at 179, 2 P.3d at 422.

The defendants here contended that Denton and especially

Brewer were controlling on the issue of immunity. They

argued they were entitled to immunity because, “[a]s Brewer

makes clear, those who maintain and operate improvements

on the land fall within the definition of ‘owners’ for purposes

of the Public Use of Lands Act.”

The defendants also maintained that granting them

immunity under the Public Use of Lands Act would not

violate the remedy clause of the Oregon Constitution. That

clause states that “every man shall have remedy by due

course of law for injury done him in his person, property, or

reputation,” Or. Const. art. I, § 10, and is designed to preserve

common law rights of action that existed when the Oregon
8 JOHNSON V. GIBSON

Constitution was adopted in 1857. See Howell v. Boyle,

353 Or. 359, 369–70, 298 P.3d 1, 6–7 (2013).

The defendants’ remedy clause argument once again

relied on Brewer. After reviewing Oregon case law, Brewer

concluded that the state legislature could abolish a common

law right of action that existed in 1857 so long as the

legislative enactment provided a countervailing benefit to

those deprived of their common law cause of action. The

court explained that

the Oregon Supreme Court’s case law appears

to recognize the legislature’s ability to strike

some sort of balance between competing

interests by redefining rights, including rights

of action, even when such a redefinition alters

or abolishes a remedy under some

circumstances. The key would appear to be

that there indeed has to be some sort of

“balance,” or legitimate trade-off, involved.

Brewer, 167 Or. App. at 189–90, 2 P.3d at 428. The court

held that the Public Use of Lands Act represented a

permissible exercise of legislative authority under this

detriment/benefit calculus:

The trade-off represented by this policy is

manifest. The owner of land opened for

recreational use in accordance with the Act

gives up exclusive enjoyment of the land and,

in return, is insulated from certain types of

liability for injuries that may occur there. The

users of recreational lands opened in

accordance with the Act give up their rights to
JOHNSON V. GIBSON 9

sue land owners for certain types of injuries

but gain the benefit of using land for

recreation that otherwise would not be

available to them.

Id. at 188–89, 2 P.3d at 427. The court held that the Act

“strikes an acceptable balance, by conferring certain benefits

and certain detriments on both the landowners involved, and

on the recreational users of that land,” and therefore “does not

violate Article I, section 10, of the Oregon Constitution.” Id.

at 190–91, 2 P.3d at 428.

In opposing summary judgment, Johnson contested both

prongs of the defendants’ arguments. First, she disputed the

defendants’ contention that they were “owners” under the

Public Use of Lands Act. She maintained that the City of

Portland was the sole owner of Waterfront Park. She argued

that Denton and Brewer were distinguishable because they

involved entity defendants rather than individuals, and

because the defendants in Denton and Brewer exercised

greater control over the premises than Stillson and Gibson did

here. And she argued that treating Stillson and Gibson as

“owners” of the park was contrary to the plain meaning of the

statute.

Second, Johnson argued that, if the defendants were

entitled to immunity under the Public Use of Lands Act, then

that law, as applied to this case, would violate the remedy

clause. She acknowledged Brewer’s holding, but argued that

Brewer was abrogated by the Oregon Supreme Court’s

subsequent decision in Smothers v. Gresham Transfer, Inc.,

332 Or. 83, 23 P.3d 333 (2001). Smothers “engaged in a

wholesale reevaluation of [the court’s] remedy clause

jurisprudence . . . and established a new method of analysis
10 JOHNSON V. GIBSON

of claims arising under it.” Howell, 353 Or. at 369, 298 P.3d

at 6. Under this new method of analysis:

in analyzing a claim under the remedy clause,

the first question is whether the plaintiff has

alleged an injury to one of the absolute rights

that Article I, section 10 protects. Stated

differently, when the drafters wrote the

Oregon Constitution in 1857, did the common

law of Oregon recognize a cause of action for

the alleged injury? If the answer to that

question is yes, and if the legislature has

abolished the common-law cause of action for

injury to rights that are protected by the

remedy clause, then the second question is

whether it has provided a constitutionally

adequate substitute remedy for the

common-law cause of action for that injury.

Smothers, 332 Or. at 124, 23 P.3d at 356–57. Smothers also

expresslyrejected Brewer’s understanding that the legislature

could altogether abolish a cause of action that existed at

common law without providing a substitute remedy,

“disavow[ing]” the court’s holdings “that the legislature can

abolish or alter absolute rights respecting person, property, or

reputation that existed when the Oregon Constitution was

drafted without violating the remedy clause.” Id. at 119,

23 P.3d at 353.

The district court rejected Johnson’s contentions, found

the defendants’ arguments persuasive and granted the

defendants’ motion for summary judgment. See Johnson v.

Gibson, 918 F. Supp. 2d 1075 (D. Or. 2013). It first held that

Stillson and Gibson were “owners” for purposes of the Public
JOHNSON V. GIBSON 11

Use of Lands Act because they “were responsible for the

maintenance and/or repair of the sprinkler system in the

Park.” Id. at 1085. In the district court’s view, this placed

the defendants “in the same position as Swackhammer, who

maintained and operated the dam” in Brewer. Id.

The court also agreed with the defendants that granting

them immunity under the Public Use of Lands Act would not

violate the remedy clause of the Oregon Constitution. See id.

at 1086–88. The court concluded that Brewer was directly on

point and, significantly, that Brewer remained good law. 

With respect to the latter holding, the court recognized that

Brewer and Smothers were in some tension. It also

recognized that the Oregon Court of Appeals, in Schlesinger

v. City of Portland, 200 Or. App. 593, 600 n.4, 116 P.3d 239,

243–44 n.4 (2005), had called Brewer’s continuing validity

into question. See Johnson, 918 F. Supp. 2d at 1086–87. The

court concluded, however, that Brewer retained its

precedential value because the Oregon Supreme Court had

not specifically disavowed Brewer in subsequent decisions

and had denied review in Brewer itself, even after Smothers

was decided. The court reasoned:

Had the Supreme Court been concerned about

the ultimate rulings in Brewer, including the

detriment/benefit calculus applied to

Swackhammer to support the finding that the

Act, as applied to a private landowner, did not

violate the [Remedy Clause], it clearly could

have addressed those rulings in Smothers or

Storm [v. McClung, 334 Or. 210, 47 P.3d 476

(2002)] or by granting review in the appeal of

Brewer. The fact that the Oregon Supreme

Court has seen fit to allow the rulings in
12 JOHNSON V. GIBSON

Brewer to remain unquestioned in at least two

cases in which it expressed concern with some

of the tangential issues addressed in Brewer,

and denied review of the ultimate rulings in

Brewer after discussing the RemedyClause in

detail, supports a conclusion that the

detriment/benefit calculus on which the

Brewer court relied in finding that the

application of the Act to a private landowner

does not violate the Remedy Clause is still

good law.

Id. at 1088.

Johnson timely appealed the adverse judgment, and in

January 2014, the parties filed a joint motion to certify two

questions to the Oregon Supreme Court:

1. Whetherindividual employeesresponsible

for repairing, maintaining, and operating

improvements on City-owned recreational

land made available to the public for

recreational purposes can each properlybe

considered an “owner” of land, as that

term is defined in the Oregon Public Use

of Lands Act, Oregon Revised Statutes

§§ 105.672 to 105.696, and therefore

immune from actions against them for

their own negligence?

2. If employees can be considered to be

“owners” under the Public Use of Lands

Act, does the Act, as applied to them[,]
JOHNSON V. GIBSON 13

violate the Remedy Clause of the Oregon

Constitution, Article I, section 10?

The parties argued that “[t]his case raises important questions

of Oregon statutory and constitutional law that are unresolved

by previous decisions of the Supreme Court or intermediate

appellate courts of Oregon” and “determinative of the case

before this Court.” They asserted that “[t]his case reduces to

the issues left unresolved in Schlesinger, namely whether the

Oregon Court of Appeals was correct in its holdings in

Brewer, that the Recreational Use of Lands Statute

immunizes those who maintain the land on behalf of the

owner, and that the Oregon Constitution permits it to do so.”

II. Grounds for Certification

Under Oregon law:

The Supreme Court may answer questions of

law certified to it by the Supreme Court of the

United States, a Court of Appeals of the

United States, a United States District Court,

a panel of the Bankruptcy Appellate Panel

Service or the highest appellate court or the

intermediate appellate court of any other state,

when requested by the certifying court if there

are involved in any proceedings before it

questions of law of this state which may be

determinative of the cause then pending in the

certifying court and as to which it appears to

the certifying court there is no controlling

precedent in the decisions of the Supreme

Court and the intermediate appellate courts of

this state.
14 JOHNSON V. GIBSON

ORS 28.200. See W. Helicopter Servs., 311 Or. at 364,

811 P.2d at 630; Fields v. Legacy Health Sys., 413 F.3d 943,

958 (9th Cir. 2005). We conclude that this standard is

satisfied here.

First, we are aware of no controlling precedent addressing

whether an individual employee responsible for repairing,

maintaining and operating improvements on City-owned

recreational land made available to the public for recreational

purposes can properly be considered an “owner” of land as

that term is defined in the Oregon Public Use of Lands Act. 

Brewer held that “those who maintain and operate

improvements on land . . . fall within the scope of [the

statutory] definition” of owner. 167 Or. App. at 179, 2 P.3d

at 422. The defendants here, however, may not be

comparable to the Swackhammer Ditch Improvement

District. They are individual city employees, not an entity,

and theymay not exercise the same degree of control over the

park that Swackhammer exercised over the dam. Under

Oregon law, moreover, “there is no more persuasive evidence

of the intent of the legislature than the words by which the

legislature undertook to give expression to its wishes.” State

v. Gaines, 346 Or. 160, 171, 206 P.3d 1042, 1050 (2009)

(internal quotation marks omitted). Thus, the first step in

interpreting a statute is “an examination of text and context.” 

Id. Here, neither the Oregon Supreme Court nor the Oregon

Court of Appeals has carefully examined the operative words

of ORS 105.672(4) – “owner,” “occupant” and “person in

possession” – or applied them to a city maintenance worker.

Second, we likewise are aware of no controlling

precedent addressing whether the Public Use of Lands Act

violates the remedy clause of the Oregon Constitution as

applied to the owners of public land. Although Brewer is on
JOHNSON V. GIBSON 15

point, neither the Oregon Supreme Court nor the Oregon

Court of Appeals has yet addressed whether Brewer has been

abrogated by Smothers. Schlesinger called Brewer into

question without deciding the issue. The Oregon Supreme

Court denied review in Brewer, but this is not dispositive. 

See 1000 Friends of Or. v. Bd. of Cnty. Comm’rs, Benton

Cnty., 284 Or. 41, 45, 584 P.2d 1371, 1373 (1978)

(explaining that denial of review by the Oregon Supreme

Court “may not be taken as expressing even a slight sign that

this court approves the decision or the opinion of the Court of

Appeals”); accord In re Marriage of Bolte, 349 Or. 289, 294,

243 P.3d 1187, 1189 (2010) (“[A] denial of review carries no

implication that the decision or the opinion of the Court of

Appeals was correct.” (quoting 1000 Friends of Oregon,

284 Or. at 44, 584 P.2d at 1372)). Another Oregon Court of

Appeals decision applied Brewer, but was later reversed on

other grounds, and thus does not constitute controlling

precedent on the continuing validity of Brewer. See Liberty

v. State, Dep’t of Transp., 200 Or. App. 607, 619–20,

116 P.3d 902, 909, opinion adhered to as modified on

reconsideration, 202 Or. App. 355, 122 P.3d 95 (2005), and

rev’d, 342 Or. 11, 148 P.3d 909 (2006). Accordingly,

certification is appropriate to determine whether Brewer

remains good law and, if not, whether the Public Use of

Lands Act violates the remedy clause of the Oregon

Constitution as applied to Johnson’s claim.

III. Questions Certified

We respectfully certify the following questions to the

Oregon Supreme Court:

1. Whether individual employeesresponsible

for repairing, maintaining and operating
16 JOHNSON V. GIBSON

improvements on City-owned recreational

land made available to the public for

recreational purposes are “owners” of

land, as that term is defined in the Oregon

Public Use of Lands Act, ORS 105.672 to

105.700, and therefore immune from

liability for their negligence?

2. If such employees are “owners” under the

Public Use of Lands Act, whether the Act,

as applied to them, violates the remedy

clause of the Oregon Constitution, Article

I, section 10?

We respectfully ask the Oregon Supreme Court to

exercise its discretionary authority to accept and decide these

questions. Our phrasing of the questions should not restrict

the court’s consideration of the issues involved. The court

may reformulate the relevant state law questions as it

perceives them to be, in light of the contentions of the parties. 

See Howell v. Boyle, 673 F.3d 1054, 1058 (9th Cir. 2011); W.

Helicopter Servs., 311 Or. at 370–71, 811 P.2d at 633–34. 

We agree to abide by the decision of the Oregon Supreme

Court. If the court decides that the questions presented are

inappropriate for certification, or if it declines the

certification for any other reason, we request that it so state,

and we will resolve the question according to our best

understanding of Oregon law.

The Clerk of this court shall file a certified copy of this

order with the Oregon Supreme Court under ORS 28.215. 

This appeal is withdrawn from submission and will be

submitted following receipt of the Oregon Supreme Court’s

opinion on the certified questions or notification that it
JOHNSON V. GIBSON 17

declines to answer the certified questions. The panel shall

retain jurisdiction over further proceedings in this court. The

parties shall notify the Clerk of this court within one week

after the Oregon Supreme Court accepts or rejects

certification. In the event the Oregon Supreme Court grants

certification, the parties shall notify the Clerk within one

week after the court renders its opinion.

CERTIFICATION REQUESTED; SUBMISSION

VACATED.

_____________________________

Richard A. Paez

United States Circuit Judge, Presiding