dissenting.
It is not clear whether the principal basis for the majority’s holding is that plaintiff failed to produce enough evidence of recklessness to create a jury question or, alternatively, that ORS 105.655 et seq. immunize defendant from liability even if the jury’s finding -of recklessness was supported by substantial evidence. I disagree with both of those possible bases for the majority’s conclusion and I respectfully dissent.
1. Sufficiency of the evidence of recklessness
The majority accurately summarizes the facts favorable to plaintiff which the evidence supported. 59 Or App at 744-45. The majority also quotes, with apparent approval, the three-part test we adopted in Hogg v. Clatsop County, 46 Or App 129, 610 P2d 1248 (1980), for determining whether conduct can be characterized as reckless in cases where ORS 105.655 et seq. apply.1 59 Or App at 744. Curiously, however, the majority does not go on to apply the Hogg test to the proven facts here. In my view, plaintiffs evidence was sufficient under that test. The jury could have found or inferred:
(a) Defendant had “knowledge of a situation requiring the exercise of ordinary skill and diligence to avert injury to another.” Defendant’s employes were aware of the unpredictable and sporadically dangerous temperatures of the water, and they knew that serious burns had been suffered by users of the springs in the past.
*758(b) Without doubt, there were many precautionary or warning measures defendant could have taken and did not. However, it is sufficient, for purposes of determining whether defendant had the “ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand,” to note that defendant did post the three “HOT WATER” signs at certain approaches to the springs, but no warning sign was visible from the route taken by plaintiff, his grandmother and brother. It is obvious that defendant had the ability to post additional signs that were visible from approaches, like the one used by plaintiff, which defendant could reasonably have foreseen visitors might use. It is equally obvious that not all visitors would use the approaches to the springs on which defendant elected to place warning signs.
(c) It is inferable from the foregoing that defendant did not “use such care and diligence to avert the threatened danger, when to the ordinary mind it must [have been] apparent that the result [was] likely to prove disastrous to another.” That is to say, the jury could have found that serious injuries had occurred in the past, that there was an ongoing danger of extremely high water temperatures at random locations and that disastrous injuries were likely in the absence of adequate warnings or precautions.
For those reasons, I think it is clear that plaintiffs proof of recklessness was sufficient to go to the jury and to support the verdict.2 As indicated at the beginning of this opinion, it is not certain that the majority disagrees. It states:
“* * * [D]efendanf s failure to provide such measures does not as a matter of law rise to the level of ‘recklessness’ that the legislature intended in ORS 105.675(1). We hold that the immunity provided in ORS 105.655 et seq. applies to defendant’s conduct and that the motion should have been granted. * * *” (Emphasis added) 59 Or App at 745.
*759I understand that statement to mean that ORS 105.655 et seq. immunize defendant from liability whether or not its conduct was proven to be reckless. I turn to that issue.
2. Effect of ORS 105.655 et seq.
As the majority notes, see 59 Or App at 743-44, we concluded in Hogg v. Clatsop County, supra, that
“ORS 105.665 clearly relieves defendant of any liability for mere negligent behavior. However, ORS 105.675(1)
<<* * * * *
“* * * provides for the retention of liability of landowners for reckless behavior. * * *” 46 Or App at 132.
That conclusion is dictated by the language of ORS 105.675(1) that nothing in the relevant statutes limits liability “which may otherwise exist” for a “reckless failure to guard or warn against a dangerous condition, use, structure or activity on the land.” The majority’s statement that defendant’s conduct “does not as a matter of law rise to the level of ‘recklessness’ that the legislature intended in ORS 105.675(1)” (emphasis added) disregards the language of that statute and our interpretation of it in Hogg. ORS 105.675(1) does not differentiate between levels of recklessness. ORS 105.655 et seq. relieve landowners from liability for ordinary negligence, but ORS 105.675(1) expressly leaves owners subject to “any liability * * * which may otherwise exist” for reckless failures to guard or warn agaiijst dangerous conditions on the land. (Emphasis added.)
The majority also states:
“* * * [T]he legislature enacted ORS 105.665(1), which relieves owners of recreational land of any duty of care to keep their land safe for entry or use by others. It also provides that there is no duty to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes. Under subsection (2), a recreational land owner does not extend any assurance that the land is safe for any purpose and does not assume responsibility for any injury to any person.” 59 Or App at 745-46.
*760As interpreted by the majority, ORS 105.665 is inconsistent with ORS 105.675(1). However, the majority apparently overlooks the introductory language of ORS 105.665, which states that the provisions of that section apply “[e]xcept as otherwise provided in ORS 105.675.” Correspondingly, the introductory clause of ORS 105.675 states that ‘‘[n]othing in ORS 105.655 to 105.680 limits in any way any liability * * *” for the conduct or under the circumstances described in the section — including liability for reckless failures to guard or warn.
In sum, ORS 105.675 is clear in its meaning and is consistent with the other provisions of ORS 105.655 et seq. Those statutes encourage owners to make recreational land available to the public, and they provide that the owners cannot be held liable for ordinary negligence. However, ORS 105.675(1) very expressly provides that owners are not relieved from liability for reckless conduct of the kind alleged and proved here. The majority appears to believe that the statutory policy cannot be adequately served without immunizing landowners from liability for the conduct to which ORS 105.675(1) leaves them subject. The majority may be'correct in that belief. However, the majority is not the legislature.
Because the majority holds that defendant was entitled to a directed verdict, it is unnecessary to discuss the assignments of error through which defendant makes its alternative assertion that the case should be remanded for a new trial. I nevertheless note that, having considered those remaining assignments, I would affirm the judgment.
The separate opinion of Van Hoomissen, J., concludes that the court erred in admitting evidence that defendant installed signs with different wording after plaintiff sustained his injury and would reverse and remand for a new trial. I agree that the court erred in that respect, but conclude that under all the circumstances the error was harmless and does not require reversal. I would affirm the judgment and therefore dissent.
The issue in Hogg was whether the plaintiffs allegations of recklessness were adequate to survive a demurrer. However, the facts which must be alleged to state a claim must also be proved to recover on that claim, and the three Hogg factors are therefore as applicable in testing the sufficiency of proof as the sufficiency of a complaint.
I note that, although defendant does argue that the issue or recklessness should have been taken from the jury, defendant does not contend that the court’s instructions on recklessness were incorrect. It follows, of course, that a properly instructed jury found from the evidence that defendant’s conduct was reckless.