Brasel v. Children's Services Division

• Decision Date: 22 March 1982
• Docket Number: No. 40-302,40-302
• Citation: 642 P.2d 696,56 Or.App. 559
• Parties: Guy L. BRASEL and Vanessa M. Brasel, individually and Guy L. Brasel and Vanessa M. Brasel, as co-personal representatives of the Estate of Desha M. Brasel, Deceased, Appellants, v. CHILDREN'S SERVICES DIVISION, an agency of the State of Oregon, Respondent. ; CA 19981.
• Court: Oregon Court of Appeals

Page 696

642 P.2d 696

56 Or.App. 559

Guy L. BRASEL and Vanessa M. Brasel, individually and Guy L Brasel and Vanessa M. Brasel, as co-personal representatives of the Estate of Desha M. Brasel, Deceased, Appellants, v. CHILDREN'S SERVICES DIVISION, an agency of the State of Oregon, Respondent.

No. 40-302; CA 19981.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 1981.

Decided March 22, 1982.

Michael J. McElligott, Hillsboro, argued the cause and filed the brief for appellants.

Rudolph S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P. J., YOUNG, J., and ROBERTS, J. Pro Tem.

ROBERTS, Judge Pro Tem.

This is a wrongful death action brought by the parents of an 18-month-old girl who died as a result of injuries suffered in a day care center certified by the Children's Services Division (CSD). Plaintiffs appeal from the court's order dismissing their second amended complaint for failure to state a cause of action and from the granting of motions to strike certain of the allegations in their original complaint. We reverse and remand for trial.

Plaintiffs alleged negligence on the part of defendant in (1) failing to properly investigate the day care facility in which their daughter was injured before issuing a certificate of approval for its operation pursuant to ORS 418.810; (2) failing to investigate an incident of child abuse alleged to have occurred at the facility before plaintiffs placed their daughter there; (3) failing to halt operation of the center following the incident; (4) failing to inform plaintiffs of a previous incident; and (5) allowing them to rely upon representations that the day care facility was a safe and secure place for their child when defendant knew that it was not. ¹ Defendant moved to dismiss on the ground that CSD's actions were discretionary and that the state was therefore immune from liability under ORS 30.265. The initial motion to dismiss was denied, but the court granted defendant's alternative motion to strike all but one of plaintiffs' claims on the grounds of immunity or that the claims were sham, frivolous and irrelevant, and its motion to make more definite and certain the allegation that defendant represented to plaintiffs that the day care facility was safe. Plaintiffs filed an amended complaint on the latter point; defendant moved against it for failure to state a claim; and the motion to dismiss was granted. Plaintiffs filed their second amended complaint, which was dismissed with prejudice, defendant arguing that it was virtually identical to the complaint which had already been dismissed.

ORS 30.265(3) provides, in pertinent part:

"(3) Every public body and its officers, employes and agents acting within the scope of their employment or duties are immune from liability for:

" * * *

"(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

The initial question raised by this case is whether it can be said as a matter of law that the acts of CSD in issuing and overseeing a certificate of approval for a day care facility are "discretionary" acts immune from liability under the Oregon Tort Claims Act.

In Stevenson v. State of Oregon, 290 Or. 3, 619 P.2d 247 (1980), the Supreme Court noted that the traditional distinctions between the discretionary acts of a highway department, i.e., planning and design, and the non-discretionary acts, i.e., maintenance, "involve the exercise of two very different kinds of judgment." 290 Or. at 9, 619 P.2d 247. Acts of governmental discretion, the court said, are acts which involve policy judgment, for instance, the decision to build a highway rather than a railroad track. These, it said, are the kind of acts for which the legislature intended tort immunity. 290 Or. at 10, 619 P.2d 247. On the other hand, the court said, acts which do not involve the making of public policy, but which perhaps also involve the use of "discretion" in the sense that a choice must be made, are insulated from liability only if they actually involve exercise of policy judgment. 290 Or. at 14, 619 P.2d 247. The burden is on the state to establish its immunity, either by (1) the nature of the function, or (2) evidence of how the decision was made. 290 Or. at 15, 619 P.2d 247. The second requirement has been interpreted to mean a showing that discretion was actually exercised in making the decision which is challenged. Bradford v. Davis, 290 Or. 855, 865, 626 P.2d 1376 (1981); accord, Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968).

In Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979), the city was held liable for issuing a taxicab license without first determining whether the operator had satisfied a requirement of the city licensing ordinance that he carry a minimum level of insurance. The city's decision to require a specific level of insurance was termed in Bradford "a discretionary policy choice of the city," but failure to determine compliance with that requirement, it said, was not discretionary. 290 Or. at 865, 626 P.2d 1376. Similarly, in Dizick v. Umpqua Community College, 287 Or. 303, 599 P.2d 444 (1979), the Supreme Court held that, while a college has discretion in design of, and acquisition of equipment for, a course program, representatives of the college were not immune from liability when they misled a prospective student as to the course materials and equipment available.

It is clear from these cases that the state enjoys immunity from tort liability when it makes a policy decision that its agency, CSD, shall have responsibility for certifying that private day care facilities operating in the state meet certain standards of health and safety. It also appears that CSD itself makes a policy decision when it establishes by rule what the criteria for issuance of a certificate of approval shall be. The division's action in adopting those standards may be immune from tort liability as a discretionary policy-making act, but at issue here is the process by which these standards were applied in the licensing of this particular facility. Without knowing more about the actual process by which the decision was made to license the day care facility where plaintiffs' daughter was injured, and without knowing how, and by whom, any subsequent decision not to halt operation was made, it cannot be said that the decisions were ones involving the making of policy, for which defendant enjoys immunity. That will have to be demonstrated by the evidence.

A law review article dealing with the California case of Johnson v. State, supra (which held the state was not immune from liability for personal injuries suffered by a foster parent as a result of the state Youth Authority's placement in her home of a youth with a background of violence without informing her of his dangerous propensities), has noted that, under the rule adopted in that case (and adopted by the Supreme Court in Stevenson v. State of Oregon, supra), "(s)ince the state must affirmatively prove that discretion was exercised in fact, few cases can be disposed of on demurrer by the governmental entity." Selmi, Discretionary Immunity in California in the Aftermath of Johnson v. State, 15 Santa Clara...