Dizick v. Umpqua Community College

• Decision Date: 11 September 1979
• Parties: Peter P. DIZICK, Petitioner, v. UMPQUA COMMUNITY COLLEGE, a political subdivision of State of Oregon, Respondent. CA 7429; SC 25923. . *
• Court: Oregon Supreme Court

Page 444

599 P.2d 444

287 Or. 303

Peter P. DIZICK, Petitioner, v. UMPQUA COMMUNITY COLLEGE, a political subdivision of State

of Oregon, Respondent.

CA 7429; SC 25923.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted March 6, 1979.

Decided Sept. 11, 1979.

Dean A. Heiling, of Heiling & McIntosh, Roseburg, argued the cause and filed the briefs for petitioner.

Eldon F. Caley, of Long, Neuner, Dole, Caley & Kolberg, Roseburg, argued the cause and filed the brief for respondent.

DENECKE, Chief Justice.

This is an action for damages for fraudulent representations brought pursuant to the Oregon Tort Claims Act. The principal question is whether the defendant governmental body is immune from liability because the claim is based upon the performance of a "discretionary function."

The jury returned a verdict for the plaintiff, however, the trial court granted defendant's motion for a judgment notwithstanding the verdict. A Court of Appeals panel of three judges affirmed with one judge specially concurring and one judge dissenting. Dizick v. Umpqua Community College, 33 Or.App. 559, 577 P.2d 534 (1978). We granted review and remanded the case for reconsideration in light of our decision in McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978). The Court of Appeals adhered to its initial decision, 37 Or.App. 55, 585 P.2d 1148 (1978). We again granted review, and we reverse.

The plaintiff had some basic welding training but wanted to qualify as an advanced welder. He contacted representatives of the defendant college and was told that if he enrolled he would be taught advanced welding, including metal inert gas welding (MIG), tungsten inert gas welding (TIG), and the operation of a milling machine. The 1973-74 catalog of the college offered courses teaching these skills. Representatives of the college told the plaintiff a milling machine was on order and would be available for use in instruction.

Plaintiff started college in the spring term of 1974. He attended school for three consecutive terms and testified he never received MIG or TIG training or instruction work on a milling machine. He testified that the TIG and MIG equipment was inoperative or was unavailable for other reasons. Plaintiff further testified that when he complained he was told additional TIG and MIG equipment and a milling machine were on order, and that he would get training in these various techniques and on these machines.

Witnesses testifying for the college denied much of plaintiff's testimony or offered explanations of what occurred which would exonerate the college. However, as the verdict was for plaintiff, we must consider the evidence in the light most favorable to plaintiff.

The college contends that the plaintiff in an action for fraudulent misrepresentation must show not only that the defendant made certain promises and did not fulfill them, but that when the promises were made the defendant had no intention to fulfill them. The college further contends that the plaintiff offered no evidence on the latter point, an essential element of the tort of fraudulent misrepresentation.

In this case, however, there is evidence from which a jury could infer that defendant's personnel made at least some of the representations in reckless disregard of whether it could perform. This is sufficient to prove promissory fraud. Elizaga v. Kaiser Found. Hospitals, 259 Or. 542, 548, 487 P.2d 870(19). An example of such evidence is plaintiff's testimony that at the beginning of each term plaintiff would ask if materials would be available and he was told "it's on order and the stuff will be here. Don't worry about it." Plaintiff further testified he related this conversation to a college instructor who commented that "the stuff" had been on order for approximately three years.

The trial court correctly denied defendant's motion for a directed verdict made upon the ground that there was no evidence of fraud.

Turning to the principal question, the cause of action arose under ORS 30.265, which in 1975 provided:

"(1) Subject to the limitations of ORS 30.260 to 30.300, every public body is liable for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function. As used in ORS 30.260 to 30.300, 'tort' includes any violation of 42 U.S.C. section 1983.

"(2) Every public body is immune from liability for any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employe or agent of a public body when such officer, employe or agent is immune from liability.

"(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 or of the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."

The college's contention is that the discretionary exception applies. The trial court and a majority of the Court of Appeals were of the opinion the discretionary exception did apply.

We attempted to outline the characteristics of a "discretionary function" in Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970). We there stated:

"The most decisive factor but one most difficult to articulate is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury. The reason behind such factor is that the bases for the legislative or executive decision can cover the whole spectrum of the ingredients for governmental decisions such as the availability of funds, public acceptance, order of priority, etc." Id. at 506, 475 P.2d at 88.

We recently made a similar attempt in McBride v. Magnuson, supra 282 Or. at 436-37, 578 P.2d at 1260:

" * * * But not every exercise of judgment and choice is the exercise of discretion. It depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion, as this court has noted in other contexts, involves 'room for policy judgment,' Smith v. Cooper, 256 Or. 485, 502, 475 P.2d 78, 45 A.L.R.3d 857 (1970), quoting Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), or the responsibility for deciding 'the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued,' Antin v. Union High School Dist. No. 2, 130 Or. 461, 469, 280 P. 664, 666 (1929). It involves the delegated responsibility for 'assessment and ranking of the policy objectives explicit or implicit in the statute,' and for the judgment that one or more of these objectives will be served by a given action, Dickinson v. Davis, 277 Or. 665, 673, 561 P.2d 1019 (1977). In other words, insofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has 'discretion' to the extent that he has been delegated responsibility for the latter kind of value judgment."

Applying these broad statements to the facts of the present case, we conclude that the defendant's representatives were not exercising a discretionary function. We are of the opinion that our disagreement with the trial court and the Court of Appeals is at least in part caused by a difference in the identification of the function the college representatives were performing.

The trial court in a written opinion stated "The Court finds that the publication and content of the defendant's catalog was a performance of a discretionary function of duty and that defendant is immune from liability arising therefrom." The author of the principal opinion of the Court of Appeals viewed the function differently:

"The method of instruction and course content obviously involve complex judgmental decisions by college officials. A jury verdict here is tantamount to a direction to the college to provide practical use training as part of the curriculum for the courses offered in the catalog." 33 Or.App. at 566, 577 P.2d at 537.

The chief judge specially concurred, stating, "I would hold the Umpqua Community College immune on the ground that recruiting and counseling of students is a government activity not to be reviewed by court or jury." 33 Or.App. at 570, 577 P.2d 539.

In our opinion the dissent in the Court of Appeals correctly identified the function:

"While I agree that an action based on the failure of the college to include certain courses in the curriculum or teach certain techniques in the courses would be barred by governmental immunity, I see no relevance to that position in this case. The plaintiff sued on account of statements made to him in order to induce his enrollment." 33 Or.App. at 570, 577 P.2d at 539.

The evidence set out above supports this characterization of the function performed by the representatives of the college which is the basis for plaintiff's claim. Plaintiff contends defendant's representatives assured him certain material and equipment would be available for use in instruction; that material and equipment was not available and the representatives acted recklessly in assuring plaintiff it would be available. This statement of what they are charged with doing is itself sufficient to show they were not performing a "discretionary function." Their representations did not allow "room for policy judgment," the responsibility of deciding "the adaption of means to an end," or the "assessment and ranking of the policy objectives explicit or implicit in the statute." McBride v. Magnuson, supra 282 Or. at 437, 578 P.2d at 1261.

One other portion of the principal opinion of the Court of Appeals deserves comment. The opinion...