Emily Johnson v. Scott Gibson , 652 F. App'x 565 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILY JOHNSON, No. 13-35087
Plaintiff - Appellant, D.C. No. 3:11-cv-00432-AC
v.
MEMORANDUM*
SCOTT GIBSON; ROBERT STILLSON,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted March 4, 2015
Submission Withdrawn April 21, 2015
Resubmitted June 14, 2016
Portland, Oregon
Before: FISHER, PAEZ and IKUTA, Circuit Judges.
Emily Johnson appeals the judgment entered in favor of the defendants in
her negligence action against Scott Gibson and Robert Stillson, employees of the
City of Portland. We have jurisdiction under 28 U.S.C. § 1291. We vacate the
judgment and remand to the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Johnson was injured when she tripped and fell while jogging in Tom McCall
Waterfront Park. She asserted negligence claims under Oregon law against Gibson
and Stillson, employees responsible for the maintenance of the park. The district
court granted summary judgment to the defendants, concluding they were immune
from liability for damages under the Oregon Public Use of Lands Act, under which
“an owner of land is not liable in contract or tort for any personal injury . . . that
arises out of the use of the land for recreational purposes . . . when the owner of
land either directly or indirectly permits any person to use the land for recreational
purposes.” Or. Rev. Stat. 105.682(1) (emphasis added). Johnson appealed.
On the parties’ joint motion, we certified two questions to the Oregon
Supreme Court, including, as relevant here, “whether city maintenance workers are
‘owners’ of the park and hence entitled to immunity under the Oregon Public Use
of Lands Act.” Johnson v. Gibson, 783 F.3d 1159, 1160 (9th Cir. 2015). The
Oregon Supreme Court accepted certification and issued an opinion holding that
“the individual employees in this case do not qualify as ‘owners’ under the Act.”
Johnson v. Gibson, 369 P.3d 1151, 1152 (Or. 2016) (alteration omitted).
Because the decision of the Oregon Supreme Court fully resolves the issues
presented in this appeal, we vacate the judgment of the district court and remand
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for further proceedings consistent with this decision and with the opinion of the
Oregon Supreme Court.
VACATED AND REMANDED. Costs on appeal are awarded to Johnson.
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