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"an injured plaintiff who invokes the obligations of a <br /> possessor of land to its invitees has invoked a <br /> 'special relationship' apart from the generalized <br /> standards that the common law of negligence imposes on <br /> persons at large." <br /> If the Court of Appeals' view prevails, the principle applies to <br /> limits on liability which a defendant municipality could invoke <br /> because of common law rules relating to landowner liability. <br /> See, Restatement (Second) of Torts, sections 342 - 343A (1965). <br /> Many of the puzzles concerning governmental liability for <br /> injuries occurring in waters adjacent to land owned by the public <br /> entity may be resolved by the Oregon Supreme Court in Fuhrer v. <br /> Gearhart By The Sea, Inc., 79 Or App 550, 719 P2d 1305 (1986), <br /> remanded, 303 Or 171, 734 P2d 1348 (1987), opinion on remand, 87 <br /> Or App 219, P2d (1987), rev. granted, 304 Or 405, P2d <br /> (1987). In Fuhrer, the decedent drowned in the Pacific Ocean and <br /> his estate administrator claimed that the state and county were <br /> negligent in failing to warn and protect him from dangerous <br /> conditions of the ocean surf. The Court of Appeals held that the <br /> state owed no duty, asserting that "An affirmative duty of care <br /> by way of warning has not been imposed on the state by case law <br /> if it has not engaged in any affirmative conduct with respect to <br /> the public using property in its control." Id., 79 Or App at <br /> 553. This is, of course, consistent with the statement of common <br /> law principles enunciated in the case law of other jurisdictions. <br /> It is not clear, at this time, whether the Oregon Supreme <br /> Court will adopt the Court of Appeals reasoning. The fact that <br /> the Supreme Court granted review generally means the court has <br /> some disagreement with the Court of Appeals' decision. Under <br /> prevailing law, the potential for municipal liability for <br /> injuries sustained by members of the public on bodies of water <br /> within or adjacent to public parks is quite minimal, unless the <br /> city has made water - related improvements, like docks or swimming <br /> facilities, or otherwise assumes responsibility by providing <br /> lifeguards, warnings or other security measures. This is, <br /> however, subject to change very shortly as the Supreme Court <br /> begins to shake out the implications of its holding Fazzolari, <br /> and considers Fuhrer v. Gearhart By the Sea in light of its new <br /> interpretations of legal duty and tort law. <br /> JL:lam <br />