Donaca v. Curry County

• Decision Date: 17 March 1987
• Parties: Sheldon Scott DONACA, Petitioner on Review, v. CURRY COUNTY, Respondent on Review. TC 84-1587; CA A34548; SC S32701.
• Court: Oregon Supreme Court

Page 1339

734 P.2d 1339

303 Or. 30

Sheldon Scott DONACA, Petitioner on Review, v. CURRY COUNTY, Respondent on Review.

TC 84-1587; CA A34548; SC S32701.

Supreme Court of Oregon.

Argued and Submitted June 3, 1986.

Decided March 17, 1987.

Linda M. Seluzicki, Portland, argued the cause for petitioner on review.

I. Franklin Hunsaker, Portland, argued the cause for respondent on review.

Before PETERSON, C.J., and LINDE, CAMPBELL, CARSON and JONES, JJ.

LINDE, Justice.

Plaintiff appealed the dismissal of his complaint seeking damages from Curry County for personal injuries sustained in a highway accident, which the circuit court held not to state ultimate facts sufficient to constitute a claim for relief. ORCP 21A. (8). The complaint alleged, in essence, that plaintiff, operating a motorcycle on a county road, collided with an automobile entering the road from a private roadway at an intersection which was obscured by tall grass growing on the right-of-way, that the defendant county was responsible for maintaining the grass and had done so in prior years, and that "[d]efendant knew or in the exercise of reasonable care should have known that the height of the grass was at such a level so as to obscure the vision of motorists at that intersection" and was negligent in failing to keep the grass below such a level.

The Court of Appeals affirmed the dismissal of the complaint on grounds that the potential costs of controlling vegetation on the right-of-way so as to maintain visibility at intersections between county roads and private roads provided a "public policy argument against imposing such a duty" on the county. Donaca v. Curry Co., 77 Or.App. 677, 683-84, 714 P.2d 265 (1986). We reverse the Court of Appeals and remand the case to the circuit court.

In Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), also decided today, we have discussed the purely formal role of "duty" or "no duty" in common-law negligence cases. "Duty" plays no affirmative part in a plaintiff's case that does not invoke an obligation arising from or defined by a status, relationship, statute, or other legal source outside negligence law itself; and, unless the plaintiff invokes such a specific legal source, "no duty" is only a defendant's way of denying legal liability for conduct that might be found in fact to have unreasonably caused a foreseeable risk of harm to an interest of the kind for which the plaintiff claims damages. Fazzolari, supra, 303 Or. at 15, 17-18, 734 P.2d 1326. See also Kimbler v. Stillwell, 303 Or. 23, 26, 734 P.2d 1344 (1987).

"No duty" defenses are argued broadly or narrowly, as the occasion demands. Sometimes "no duty" excludes whole categories of claimants or of claims, for instance economic or psychic loss caused by physical injury to another S ¹ At other times "no duty" refers narrowly to an aspect of the particular circumstances before the court. This often amounts to a claim that no rational factfinder could find defendant's conduct unreasonably to pose a foreseeable risk to the plaintiff but does not really assert any categorical rule. ² The Fazzolari and Kimbler cases decided today are of this second type. In the present case, the Court of Appeals accepted a "no duty" argument of the first kind. The court categorically excluded any duty to trim or remove vegetation on county roads that obscures a motorist's view of intersections with private roads from the county's general responsibility for the safety of public roads.

The ambiguous and ultimately unhelpful role of "duty" in reaching a conclusion on this issue was discussed in a Wisconsin decision on which defendant and the Court of Appeals relied, Walker v. Bignell, 100 Wis.2d 256, 301 N.W.2d 447 (1981). The Wisconsin Supreme Court noted that the defendant county, under circumstances much like the present, had successfully argued in the lower court that "under the Wisconsin formulation of the elements of a cause of action in negligence, i.e., duty, breach, causation, and damage, the plaintiffs' action is defeated [at] the threshold for want of a duty to breach." Id. 301 N.W.2d at 451-52. The supreme court continued:

"This court on a number of occasions has discussed the somewhat elusive concept of 'duty.' [In two earlier opinions] this court repeated the words of Dean Prosser:

" 'There is a duty if the court says there is a duty; the law, like the constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question.' " ³ (Emphasis in original; citations omitted.)

Id. at 452. After observing that the parties before it had used "duty" to refer either to an affirmative duty of municipalities to cut vegetation at intersections or to a general common-law duty of reasonable care to avoid causing foreseeable risk of harm to another, the Wisconsin court concluded:

"We find it unnecessary to ground our decision relative to the defendants' ultimate liability upon the somewhat nebulous concept of duty even though the parties to this review, the courts below, and many decisions from other jurisdictions have used the term. Our cases do not indicate that municipalities are held to an affirmative duty to cut roadside vegetation in order to assure motorist visibility, and we are disinclined to declare the existence of such a duty. * * * Neither do we consider whether injury to motorists caused by poor visibility occasioned by uncut vegetation at highway intersections is within the realm of a foreseeable risk of harm so as to trigger in the defendants a duty of reasonable care to prevent such harm. * * * Instead we prefer to declare directly that, as a matter of public policy, municipalities should not be exposed to common law liability under the circumstances present in this case. Exposure to such liability would, we feel, place an unreasonable and unmanageable burden upon municipalities such as the defendants herein, not only in terms of keeping areas adjacent to every highway intersection clear of visual obstructions at whatever intervals are necessitated by the vicissitudes of Wisconsin's climate, but also in terms of the potential for significant financial liability owing to the unfortunate propensity of motorists to have intersection accidents. In addition, because the height and density of vegetation would become a factor in nearly every intersection accident case, municipalities would inevitably be drawn into considerably more litigation, with its attendant costs and demands. To require these defendants to do battle with roadside vegetation under penalty of liability for common law negligence would be to place upon them a burden they should not be made to bear." (Citations omitted.)

Id. at 453. The court then remanded the case for reconsideration of possible liability under a statute that the parties apparently had overlooked.

There is nothing new in the observation that "duty" is only a conclusion embodying policies making a defendant civilly liable for failure to protect a plaintiff against an injury. See Fazzolari, supra, 303 Or. at 15, 734 P.2d 1326; Mezyk v. National Repossessions, 241 Or. 333, 336, 405 P.2d 840 (1965). This is self-evident when "duty" is used in its primary and meaningful sense of obligations imposed or defined by sources of law external to the common law of negligence itself. See, e.g., Cain v. Rijken, 300 Or. 706, 717 P.2d 140 (1986) (statutory duty of "community mental health provider"); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979) (city clerk's duty to apply an ordinance); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977) (lawyer's duty under a court order). And, of course, negligence law itself like all law is a part of a state's public policy. Some courts and some theorists therefore have taken the further step that in the absence of statutory sources of public policy, a court should articulate and justify rules of law in terms of policy (described a bit self-servingly as "public" or "social" policy), in other words, adopt a legislative mode of making policy rather than a judicial search for policy made by others or for the implications of existing principles. ⁴ This is what the Court of Appeals, quoting Walker v. Bignell, supra, did in this case.

We do not follow the quoted approach of the Wisconsin court, as we have not embraced freewheeling judicial "policy declarations" in other cases. In recent years, for instance, this court has declined to explain tort liability for injuries from defective products by a "loss-spreading" rationale, Wights v. Staff Jennings, Inc., 241 Or. 301, 309-10, 405 P.2d 624 (1965), to decide for or against intrafamily immunity from negligence liability by assessing the defendant's potential conflict of interest when his or her liability is covered by insurance, Winn v. Gilroy, 296 Or. 718, 728, 681 P.2d 776 (1984), or to consider either the use of liability insurance or possible burdens on the courts as factors in defining substantive claims and duties, Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982). ⁵

Similarly, we do not immunize counties from whatever responsibility for visibility of intersections they otherwise might have in order to relieve them of the cost of defending against unsuccessful claims. Nor are counties immune from liability that owners of private roads would face under identical circumstances merely because precautions are costly. The Oregon Tort Claims Act squarely enacts the contrary policy toward both defenses.

The Court of Appeals let an argument against the cost of a "duty to control vegetation at intersections" lead it into a categorical "no duty" rule for uncontrolled intersections between public and private roads though not all roads. The rule illustrates the pitfalls of cost-based judicial generalizations. The risk of collisions at obstructed intersections and the cost of...