OR Case Update: Licensee or Trespasser? Deciphering a Landowner’s Consent to Entry

From the Desk of Jeffrey D. Eberhard: When a business or property owner does not object to a bicyclist crossing through its parking lot, will the owner’s inaction constitute consent to entry on its property, thereby resulting in a higher duty to prevent harm? Read on to see how the Oregon Court of Appeals ruled in the following case.

Claims Pointer: In this case, a bicyclist was injured while riding his bike through an unfenced car wash property open to the public to avoid a car exiting the car wash that was blocking his lane of travel. The Court held that where a business owner neither objected to nor prevented a bicyclist’s entry onto its property, and where it was the community norm to allow bicyclists to enter store properties open for daily business, the jury had enough evidence to find that the business owner impliedly consented to the bicyclist entering its property.

Currier v. Washman, LLC, 276 OR App 93 (January 27, 2016).

At the time of the accident, Washman, LLC (“Washman”) owned and operated a car wash facility, which was open to the adjacent streets and did not have fences, barriers, or demarcations indicating where the sidewalk ends and the property begins. There was considerable traffic on the streets, bicycle lanes and sidewalks that adjoined the car wash. Pedestrians and bicyclists were not prevented from entering and leaving the property, and the property did not contain access controls or “no trespassing” signs.

John Currier (“Currier”) was riding his bicycle and approached the car wash property. He attempted to ride around a car blocking the bike lane and sidewalk. While riding into the drive lane and parking area, Currier noticed damp pavement and proceeded, believing the condition was not dangerous. The concrete was actually wet with a combination of water, soap, and anything that dripped off the cars. Currier encountered the damp surface and his bicycle tires slid out from under him. He fell with the bicycle and sustained a...

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