Weaver v. Lane County

• Decision Date: 10 August 1972
• Citation: 10 Or.App. 281,499 P.2d 1351
• Parties: Jackie Dale WEAVER, Appellant, v. LANE COUNTY, Oregon and Gerald K. Attig, Director of Department of Public Works, Lane County, Oregon, Respondents.
• Court: Oregon Court of Appeals

Page 1351

499 P.2d 1351

10 Or.App. 281

Jackie Dale WEAVER, Appellant, v. LANE COUNTY, Oregon and Gerald K. Attig, Director of Department of Public Works, Lane County, Oregon Respondents.

Court of Appeals of Oregon, Department 2.

Argued and Submitted June 1, 1972.

Decided Aug. 10, 1972.

Leslie M. Swanson, Jr., Eugene, argued the cause for appellant. With him on the briefs were Johnson, Johnson & Harrang, and Winfrid K. Liepe, Eugene.

Windsor Calkins, Eugene, argued the cause for respondents. With him on the brief were Calkins & Calkins, Eugene.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

THORNTON, Judge.

This is a personal injury action against Lane County and its director of public works, Gerald Attig, for injuries received by plaintiff in a two-car collision on a county highway, allegedly caused by defendants' negligence.

Plaintiff appeals from a judgment granting a directed verdict in favor of defendant Attig, and granting a motion for judgment n.o.v. in favor of defendant Lane County. The judgment n.o.v. followed a jury verdict in favor of plaintiff, awarding damages in the amount of $10,000.

Plaintiff contends that the trial judge erred:

(1) In striking portions of the complaint alleging common-law negligence on the part of defendant Attig in designing, constructing and inspecting the highway, and in failing to erect adequate warning signs;

(2) In granting defendant's motion for a directed verdict with respect to defendant Attig; and

(3) In allowing defendant Lane County's motion for judgment n.o.v. for plaintiff in the sum of $10,000.

Defendant Attig is in charge of and responsible for the county road system. As previously stated, plaintiff's action against defendant Attig was based on common-law negligence. The trial court granted a directed verdict in favor of Attig on the basis of the immunity of public employes for discretionary acts on the authority of Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970).

Plaintiff's action against defendant Lane County was based on two alternative theories. The trial judge concluded that under our governmental tort liability law (ORS 30.260 to 30.300), the county has the same immunity as Attig (ORS 30.265(2)(a)). The plaintiff contended, on his second theory, that the county was liable under the county road and bridge statute. Former ORS 368.940 (repealed Or.Laws 1969, ch. 429, § 6), which had not been expressly repealed as of the date the collision occurred.

There is a lack of direct evidence in the record as to what actually happened, inasmuch as the plaintiff apparently suffered amnesia as a result of injuries received in the crash and could remember little of the circumstances.

The accident occurred at approximately 6 p.m. on November 15, 1968, at the intersection of Sheffler Road and Poddle Creek Road. Plaintiff was proceeding home after work and was traveling north from Noti, along Poodle Creek Road. It was dark and raining. Plaintiff had been on Pondle Creek Road only once previously, at which time he had traveled in the opposite direction (south) during daylight hours.

The following is a diagram of the scene adapted from defendants' exhibit A:

The accident took place in the right-hand portion of a 'Y'-type intersection at a point where Poodle Creek Road takes a 10 degree turn to the left. Sheffler Road joins Poodle Creek Road from the right (north side) at this point forming the right leg of the 'Y' referred to. Prior to construction of the curve this portion of Sheffler Road had constituted a part of Poodle Creek Road. Thus, this particular segment of Sheffler Road where the collision occurred was actually a straight-line extension from Poodle Creek Road.

Plaintiff testified that he does not remember the events that occurred after leaving Noti on Poodle Creek Road. What actually happened must of necessity be reconstructed from the nature of the accident itself, the conditions of the area, the testimony of witnesses who arrived after the collision and the inferences that can be drawn therefrom.

As plaintiff's automobile approached the junction another car was stopped at the stop sign located at the edge of Poodle Creek Road, and in the southbound lane of Sheffler Road. The driver of the second car was waiting to enter Poodle Creek Road. Plaintiff's car struck the second car in a nearly head-on collision, causing extensive damage to both cars and serious injuries to plaintiff.

Plaintiff's Exhibit 10 is a photograph depicting the rear of the second car, taken shortly after the accident, before the cars were moved. This photo indicates that the second car was on an incline, as does the testimony of the photographer who took the photo. Testimony of defendant Attig and of plaintiff's expert witness reveals that Podle Creek Road is higher in elevation at this intersection than Sheffler Road. The incline is about four to five per cent. Further testimony revealed that there were no signs on Poodle Creek Road indicating the curve or the 'Y' intersection with Sheffler Road.

Plaintiff's theory was that, as he was traveling north on Poodle Creek Road, he was blinded by the headlights of the car stopped at the intersection. The steep grade (four to five per cent) caused the lights to be in a blinding position and the nature of the intersection caused cars stopped on Sheffler Road to face head-on the northbound traffic on Poodle Creek Road. Plaintiff further theorizes that as a result of this blinding effect, the deception it caused, and the lack of warning signs, he was deceived into thinking that Poodle Creek Road continued in a straight line instead of curving to the left. (There was a broken center stripe on Poodle Creek Road.)

Apparently plaintiff realized at the last moment that the road curved. This can be inferred from the testimony of the investigating officer that he found skid marks 66 feet in length which commenced on Poodle Creek Road and led directly to the tires of plaintiff's car at the point of impact.

Plaintiff's first and second assignments of error are best treated as one for they both relate to the directed verdict in favor of defendant Attig. Plaintiff's contention is that the court should not have struck the allegations of negligence relating to Attig and should not have ruled that, as a matter of law, Attig's acts or failures to act were discretionary. Plaintiff argues that the court's ruling is not required by Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970); that under the evidence the acts, or failures to act, by Attig were ministerial; and that the question of whether the acts were discretionary or ministerial was for the jury to decide.

The defendants did not demur to plaintiff's complaint, which our Supreme Court has declared is the proper procedure to raise the defense of immunity. Smith v. Cooper, supra. However the same function is fulfilled by a motion for a directed verdict after all the evidence has been presented. See, Ridley v. Portland Taxicab Co., 90 Or. 529, 177 P. 429 (1919). A motion for a directed verdict raises a question of law for the court, requiring the court to rule on the sufficiency of the evidence. Godell v. Johnson,244 Or. 587, 418 P.2d 505 (1966), appeal after remand 250 Or. 496, 443 P.2d 203 (1968).

Defendants' motion for directed verdict was based on the grounds that there was no question of negligence (as to Attig) to submit to the jury and further that since Attig's alleged negligence was in the performance of discretionary functions, Smith v. Cooper, supra, is controlling in that Attig is within the public employe immunity rule.

The case as to Attig depends on the character of the work that was or was not done. According to the pleadings and the evidence defendant Attig was in charge of the county road system. His duties included designing, constructing, maintaining and inspecting all legal county roads.

Plaintiff alleged in his complaint that defendant Attig was negligent in the following particulars:

'(1) In failing to require that the intersection of Sheffler Road with Poodle Creek Road be designed or redesigned so that the two roads intersected at a safe angle and grade.

'(2) In failing to require that the intersection of Sheffler Road with Poodle Creek Road be constructed and maintained, or reconstructed and maintained so that the two roads intersected at a safe angle and grade.

'(3) In failing to require that adequate signs, barriers, or other devices be erected and maintained to warn approaching automobiles of the dangers of the intersection of Sheffler Road with Poodle Creek Road, and of the curve in a westerly direction on Poodle Creek Road.

'(4) In failing to require that the intersection of Sheffler Road with Poodle Creek Road and the approaches thereto be inspected for dangers and defects, and in failing to inspect the intersection of Sheffler Road with Poodle Creek Road and the approaches thereto for dangers and defects.'

The court heard all the evidence presented by both parties. There was no dispute as to the facts. On the basis of the pleadings and the evidence presented, the court ruled that defendant Attig was performing a discretionary function.

The determination of whether a public employe is acting in a discretionary function or in a ministerial function is a question of law to be decided by the court. Smith v. Cooper, supra, 256 Or. at 511, 475 P.2d 78; Ogle v. Billick, 253 Or. 92, 99 453 P.2d 677 (1969); Leonard v. Jackson, 6 Or.App. 613, 488 P.2d 838, Sup.Ct. review denied (1971).

A ministerial act is described as

'* * * being one that is done 'where the law prescribes and defines the duty to be performed, with such precision and certainty as to leave nothing to the exercise of discretion, or judgment,' in contrast to a judicial act (discretionary act) which 'involves the exercise of discretion or judgment in determining whether the duty exists' * * *.' State v. Nagel, 185 Or. 486, 499, 202 P.2d 640, 646 (1949).

We agree that evidence...