Wright v. Scappoose School Dist. No. IJ

• Decision Date: 12 April 1976
• Parties: Russell WRIGHT, by Robert J. Wright, his guardian ad litem, Appellant, v. SCAPPOOSE SCHOOL DISTRICT NO. IJ, an Oregon Corporation, et al., Respondents.
• Court: Oregon Court of Appeals

Page 535

548 P.2d 535 25 Or.App. 103 Russell WRIGHT, by Robert J. Wright, his guardian ad litem, Appellant,
v.
SCAPPOOSE SCHOOL DISTRICT NO. IJ, an Oregon Corporation, et
al., Respondents. Court of Appeals of Oregon. Argued and Submitted March 16, 1976.
Decided April 12, 1976.

[25 Or.App. 104] Donald Winfree, Portland, argued the cause for appellant. With him on the brief were Welsh & Winfree, Portland.

Thomas N. Blamer, Portland, argued the cause for respondents. With him on the brief were Cosgrave & Kester, Portland.

Before SCHWAB, C.J., and FOLEY and LEE, JJ.

[25 Or.App. 105] SCHWAB, Chief Judge.

Plaintiff was injured when he fell 18 feet from the top of a slide fire escape on the outside of a school building operated by the defendant school district. Before he fell, plaintiff had been playing on the fire escape.

Page 536

Plaintiff's second amended complaint alleged that the defendants knew or should have known that children regularly played on the fire escape, climbing to the top and sliding down it. The complaint alleged that the slide 'fire escape Was not functional * * * in that there was another fire escape which was in use, and defendants were negligent For not removing the slide fire escape * * *.' (Emphasis supplied.) The trial court granted defendants' demurrer grounded on governmental immunity. We reverse.

Much has been written about the discretionary versus ministerial dichotomy that the immunity issue raises. ¹ There is nothing we can add other than our conclusion in this case--limiting our consideration to the allegations of the complaint and accepting them as true for present purposes, we cannot say that the decision whether to Remove a nonfunctional fire escape that created a Known hazard was other than ministerial. Further pleadings or evidence can, of course, be the basis for a contrary conclusion.

The weakness in defendants' argument that their alleged nonfeasance was discretionary is best indicated by noting that their brief relies on 'facts' that are not in the complaint:

'* * * The decision to continue to use a wooden, second[25 Or.App. 106] story classroom, the use of which necessitated the continued presence of a slide fire escape (was discretionary) * * *.'

There is nothing in the complaint about any use of any classroom; defendants are attempting to make a 'speaking demurrer,' which is not authorized. ² Griffith v. Hanford, 169 Or. 351, 358, 128 P.2d 947 (1942). Whether the presence of the slide fire escape was...