IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ERIC CONRAD, 

Plaintiff, 

V. 

JACKSON COUNTY, a political subdivision 

ofthe State of Oregon and JACKSON 

COUNTY MASTER GARDNER ASSOC., an 

unincorporated association, 

Defendants. 

CLARKE, Magistrate Judge. 

Case No. 1:13-cv-0756-CL 

ORDER 

This matter comes before the court on defendant Jackson County's motion for partial 

summary judgment (#17) against defendant Jackson County Master Gardner Association. The 

Association filed a response (#24), and oral argument occurred on February 12, 2014. For the 

reasons stated below, Jackson County's motion is GRANTED. 

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BACKGROUND 

Except where noted, the material facts are not in dispute. Plaintiff Eric Conrad 

("plaintiff') filed this personal injury action on May 3, 2013, alleging that he sustained injuries 

while acting as a vendor and in operation of his booth during the Jackson County Master 

Gardeners Association ("JCMGA") Show at the Jackson County Fairgrounds on May 7, 2011. 

Campi,~ 2. The JCMGA's 2011 Show was conducted at the Compton Arena, which is within 

the Exposition Park in Jackson County. Plaintiffs complaint alleges that he tripped over a pipe 

after leaving the Compton Arena on his way to the vendor parking lot designated by JCMGA. 

The vendor lot is located within the Exposition Park in the Jackson County Fairgrounds. Compl, 

~ 3. Plaintiff allegedly fell on his right side and sustained injuries, and asks for economic and 

non-economic damages. Compl, ~~ 3-6. 

The JCMGA is an unincorporated association of individuals who have received the 

master gardener certificate from Oregon State University. Decl. Ella Self,~ 5. The JCMGA puts 

on a Master Gardener Show and Sale annually at the Exposition Park in Jackson County 

Fairgrounds. ld. at~ 3. On or about October 27, 2010, defendant Jackson County ("County") 

executed a written agreement with JCMGA ("Agreement"). The purpose of the Agreement was 

to allow JCMGA to use premises owned by the County ("Premises") on May 5-8, 2011, for the 

Master Gardeners Show and Sale. The Agreement provides, in pertinent part': 

Permittee [JCMGA] to do own setup and cleanup. This includes ... policing areas used 

to be sure that all trash and debris has been properly disposed of. 

PERMITTEE [JCMGA] agrees to conduct its activities upon the premises so as not to 

endanger any person lawfully thereon and to indemnify and save harmless the JACKSON 

1 The Agreement was drafted by the County. See becl. Self,~ 31. JCMGA alleges that the 

County refused their attempts to negotiate the terms of the Agreement. Mem. in Opp., 4. JCMGA also 

alleges that the Exposition Park is the only venue in Jackson County suitable to hold the Master Gardner 

Show and Sale. Dec!. Self, ~ 3 I. 

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COUNTY FAIR BOARD, JACKSON COUNTY BOARD OF COMMISSIONERS, 

AND JACKSON COUNTY EXPO/FAIR GROUNDS employees against any and all 

claims for loss, injury, or damage to persons or property damage ... arising out of 

activities conducted by PERMITTEE and its employees. 

PERMITTEE agrees that it accepts the premises in the condition in which they are found 

and agrees the premises are adequate and safe for PERMITTEE'S purposes. 

11. EXHIBITORS: If Permittee makes any part of the premises under this agreement 

available to other persons as exhibitors as part of this use, the exhibitors shall be subject 

to all of the provisions of this agreement and to the authority of the JCEP under those 

conditions, but in any event, Permittee shall be fully responsible for all acts or omissions 

ofthe exhibitors as if they were its agents or employees. 

13. RESPONSIBILITY FOR PROPERTY: JCEP assumes no responsibility to Permittee 

for any property placed on the premises by Permittee, or exhibitors, or for any loss 

incurred by Permittee as the result of any injury or damage to persons or property 

sustained during or by reason of the occupancy of the premises by Permittee under this 

agreement, it being understood that Permittee accepts the premises as-is and based upon 

Permittee's own inspection of them as to their condition of safety. 

14. INSURANCE AND INDEMNITY: Permittee agrees to conduct its activities upon 

the premises so as not to endanger any person lawfully thereon and to indemnify and save 

harmless JCEP against any and all claims of employees of Permittee or any contractor or 

subcontractor arising out of the activities conducted by Permittee, its employees, patrons, 

guests or exhibitors. Permittee shall deliver to JCEP, not less than fourteen (14) days 

before the opening of the first day of use and occupancy, satisfactory evidence of liability 

insurance, including a copy of the endorsement adding JCEP as an additional insured; 

liability minimum shall be $1,000,000, combined single limit bodily injury and property 

damage per occurrence including $100,000, fire, legal liability for damage or injury to · 

premises, building or grounds of JCEP in the care, custody and control of Permittee .... 

Decl. Koellermeier, Ex. 1. 

The County filed cross-claims for defense and indemnity from JCMGA and now moves 

for partial summary judgment on its cross-claims, arguing that it is entitled to defense and 

indemnity under the Agreement. 

SUMMARY JUDGMENT 

The court must grant summary judgment if there is no genuine issue of material fact for 

trial and the moving party is entitled to judgment as a matter oflaw. FED. R. CIV. P. 56( c). An 

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issue is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. 

Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242,252 (1986)). A fact is "material" if it could affect the outcome ofthe 

case. !d. The court views the evidence in the light most favorable to the non-moving party and 

draws "all justifiable inferences" in that party's favor. Miller v. Glenn Miller Prods., Inc., 454 

F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the 

moving party has met its burden, the non-moving party must present "specific facts showing that 

there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986) (quoting FED. R. CIV. P. 56( e)). Conclusory allegations, unsupported by factual 

material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 

1040, 1045 (9th Cir. 1989) (quoting Angel v. Seattle-First Nat'! Bank, 653 F.2d 1293, 1299 (9th 

Cir. 1981)). 

DISCUSSION 

JCMGA argues that the County's motion must be denied because (1) the indemnity 

provisions of the Agreement do not apply to plaintiffs claims; (2) the indemnity provisions are 

unenforceable because ambiguous; (3) the indemnity provisions are unenforceable because they 

would create harsh results contrary to public policy. In this diversity action under Oregon law, 

the substantive law governing a claim or defense determines whether a fact is material. T W 

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). 

Under Oregon law, whether a duty to defend exists is a question of law for the court. 

Nat 'l Fire Union Ins. Co. of Pittsburgh v. Starplex Corp., 220 Or. App. 560, 573 (Or. App. 

2008). The Oregon Supreme Court uses the "eight corners" rule for determining whether a duty 

to defend exists. Ledford v. Gutoski, 319 Or. 397, 399-400 (1994). Under the eight corners rule, 

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an insurer may only look at the complaint and the insurance policy to decide if "the complaint 

could, without amendment, impose liability for conduct covered in the policy." !d. The Ledford 

court also held that an insurer owes a duty to defend if the claimant provides any basis for 

recovery against the insured. !d. at 400. Further, the insurer has the duty to defend the entire 

action "[if] the complaint alleges facts, that if proved, would impose liability covered by the 

policy ... even if some of the conduct alleged would not be covered." Drake v. Mut. of 

Enumclaw Ins. Co., 167 Or. App. 475, 478 (2000). 

The County argues that under Ledford and Starplex, a contractual indemnitor owes a duty 

to defend once the plaintiff provides some basis for recovery. De f. Mem., 5. The County argues 

that JCMGA is obligated to indemnify the County for any and all claims and associated damages 

flowing from an award in favor of plaintiff against Jackson County. JCMGA argues that there is 

no duty to indemnify the County, and that the duty to defend therefore does not attach. Because 

the duty to indemnify depends on the proper interpretation of the Agreement, we turn to the 

Agreement terms. 

I. The Agreement Terms 

The parties dispute the proper interpretation of the Agreement's terms. After careful 

consideration of the complaint and the Agreement, the courts makes findings following the eight 

corners standard employed under Oregon law. See Ledford, 319 Or. at 399-400. 

1. Plaintiff's Status 

As noted, plaintiffs complaint alleges that he acted as a "vendor/representative" at the Master 

Gardner Show on the date of the alleged injury. Plaintiff also alleges that he was a "business 

invitee" of JCMGA. The Agreement states that JCMGA "shall be fully responsible for all acts 

or omissions of the exhibitors as ifthey were its agents or employees." Decl. Koellermeier, Ex. 

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1, ~11. Moreover, the Agreement provides that the County "assumes no responsibility to 

Permittee ... for any loss incurred by Permittee as the result of any injury or damage to persons 

or property sustained during or by reason of the occupancy of the premises by Permittee under 

this agreement." ld. at ~13. Plaintiff is therefore included in the list of potential claimants or 

"guests" as set out in the Agreement's indemnity provision.Jd. at ~14. 

2. Premises Covered 

The Agreement states that JCMGA is responsible for ensuring the safety of the areas used 

for the Show. Dec I. Koellermeier, Ex. 1, ~11. Plaintiffs complaint does not limit JCMGA' s 

management and operation of the Show to the confines ofthe Compton Arena. Plaintiff was 

allegedly injured as he was walking towards his vehicle at the end of the day after participating 

in the Show. Plaintiff alleges that "as a condition of his participation in said Show, plaintiff ... 

was required to park and leave [his] vehicle[] in a dirt lot designated for that purpose." The 

Agreement does not exclude the vendor parking lot and access paths from its definition of the 

premises to be used by the JCMGA. Based on the complaint and Agreement, JCMGA appears to 

be responsible for management and operation of reasonable ingress and egress routes to and from 

the designated parking lot to be used for the Show. The alleged injury thus occurred in an "area" 

in "use" by JCMGA. On this record, the court finds that the Agreement's indemnity and 

defense provisions cover the area where plaintiff allegedly sustained an injury. See Decl. 

Koellermeier, Ex. 1, ~~13, 14. 

3. Acceptance of Premises "As Is" 

JCMGA argues that the "as is" provisions in the Agreement do not apply to the portion of the 

premises where the alleged injury occurred, because the pipe was placed there after the parties 

executed the Agreement. As noted above, the Agreement contains the following provision: 

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"[JCMGA agrees to] accept the premises in the condition in which they are found and agrees the 

premises are adequate and safe for PERMITTEE's purpose." Dec!. Koellermeier, Ex. 1. This 

provision includes any conditions to the ingress and egress paths to the parking area that JCMGA 

used for its vendors. Moreover, JCMGA was required by the terms of the Agreement to 

"[police] areas used to be sure that all trash and debris has been properly disposed of." !d. 

Under the eight comers of the complaint and Agreement, the court can find no indication that the 

"as is" language in the Agreement was intended to apply to the condition ofthe premises only at 

the time the Agreement was signed, to the exclusion of the premises' condition at the time ofthe 

Show. Therefore, the court finds that JCMGA assumed liability for the conditions of the path to 

the vendor parking area at the time of the Show. 

4. Parties Covered 

JCMGA argues that the first indemnity provision does not include the County in its list of 

entities covered. The County points out that the Agreement is expressly entered into between 

"JACKSON COUNTY, acting by and through its Jackson County Fair Board Manager and 

authorized employees, hereinafter referred to as JCEP," and JCMGA. The court finds that 

Jackson County is thus expressly included in the definition of"Jackson County Fair Board 

Manager" or "JCEP," and is covered by the Agreement's indemnity and defense provisions. 

5. Activities Covered 

JCMGA argues next that the provision entitled "INSURANCE AND INDEMNITY" does 

not apply to plaintiff's claim because it arises out of an activity of the County. JCMGA contends 

that plaintiff's accident occurred in an area where Jackson County had recently performed 

construction activities, and appear to infer that the pipe which plaintiff allegedly tripped over is 

part of a County activity. 

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The court disagrees. By its terms, the insurance and indemnity paragraph applies to 

"claims of employees of Permittee or any contractor or subcontractor arising out of the activities 

conducted by Permittee, its employees, patrons, guests, or exhibitors." Decl. Koellermeier, Ex. 

1, ~14. The Complaint indicates that JCMGA instructed plaintiff to park in a designated vendor 

parking lot. As noted, plaintiff allegedly sustained injuries when he tripped on a pipe on his way 

to the vendor parking lot. Further, JCMGA had knowledge of the County's construction 

activities prior to the date of the show, and by the Agreement was responsible for the policing the 

area and ensuring the safety of the premises. Self Decl., ~~18, 22; Decl. Koellermeier, Ex. 1. On 

this record, the Show is the relevant "activity" contemplated by the Agreement, and that 

plaintiffs injury arose out of his participation in the Show. The court thus finds that plaintiffs 

claim arises from the Show, considered in its entirety. 

Based on these findings, the court rejects JCMGA's argument that the indemnity 

provisions in the Agreement do not apply to plaintiffs claims. In so doing, the court finds that 

the Agreement terms are sufficiently clear for the purposes of adjudicating the County's motion, 

and therefore also rejects the JCMGA's argument that the indemnity provisions are 

unenforceable because ambiguous. 

III. Oregon Indemnity Law 

JCMGA argues that Oregon law precludes this court from enforcing a contract that 

indemnifies a party for its own negligence, citing Southern Pacific v. Layman, 173 Or. 275, 

(1944). Layman held that an indemnity contract would not be construed to cover lossess caused 

by the indemnitee's own negligence, unless such intention was expressed in clear terms in the 

agreement. !d. at 279-80; see also Waterway Terminals Co. v. P.S. Lord Mech. Contractors, 242 

Or. 1 (1965); Estey v. MacKenzie Engineering Incorporated, 324 Or. 372, 376 (1996) 

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("Agreements to exonerate a party from liability or to limit the extent of the party's liability for 

tortious conduct are not favorites of the courts but neither are they automatically voided. The 

treatment courts accord such agreements depends upon the subject and terms of the agreement 

and the relationship of the parties"). The Layman court explained that indemnity contracts are 

generally intended to provide against liability ofthe indemnitee through the operations of the 

indemnitor, or caused by physical conditions that are under the indemnitor's control. Layman, 

173 Or. at 281-82. 

Here, plaintiffs alleged injury was caused by the operations of JCMGA together with 

physical conditions for which JCMGA assumed full responsibility. Decl. Koellermeier, Ex. 1. 

JCMGA exercised control over the premises by directing its exhibitors to park in the vendor lot, 

which was connected to the Compton arena by the path where plaintiff fell. The safety of the 

premises and the obligations owed for any claims brought by JCMGA's "guests" and 

"exhibitors" to the County is expressly provided for in the Agreement. Layman and its progeny, 

therefore, do not preclude partial summary judgment in favor of the County on the issues 

presented. 

IV. Harsh Results and Public Policy 

JCMGA next argues that if the court finds that the indemnity provisions apply, it "would 

impose a particularly harsh and unequitable obligation" on JCMGA. Mem. in Opp., 14. 

JCMGA asks that the court defer ruling on the County's motion to allow time for more discovery 

on the issue of just "how harsh and unequitable the application of this indemnity provision would 

be." !d. at 15. JCMGA, however, does not cite any legal authority to suggest that holding a 

nonprofit organization to the terms on an indemnity and defense agreement is unusually harsh. 

In this case, JCMGA made a business decision to enter an agreement with the County that 

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involved acceptance of risk, and purchased an insurance policy to protect against that risk. The 

2011 Master Gardener Show and Sale was not the first or last planned JCMGA event that 

contemplated an indemnity and defense agreement with the County. See Decl. Koellermeier, Ex. 

1. On this record, the court rejects the contention that enforcement of the Agreement imposes a 

"harsh and unequitable obligation." 

Finally, JCMGA argues that the indemnity provisions are void as against public policy. 

To that end, JCMGA argues that the County provides an important public service in operating 

the Exposition Park, and as such cannot "contract away its duties to provide reasonable safe 

premises to organizations which rent facilities." Mem. in Opp., p. 15. Even if the County was 

somehow negligent in conducting construction activities at the Exposition Park, however, 

JCMGA had knowledge of the County's construction activities prior to the date ofthe show. 

Self Decl., ~~18, 22. As discussed above, JCMGA contractually agreed to inspect and police the 

areas used for the Show, and insured against the risks accepted in the Agreement. Decl. 

Koellermeier, Ex. 1. The court therefore cannot find that enforcement of the indemnity and 

defense provisions would be against public policy. 

CONCLUSION 

For the foregoing reasons, Jackson County's motion for partial summary judgment is 

GRANTED. 

IT IS SO ORDERED. 

United States Magistrate Judge 

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