Dundas v. Lincoln County

• Decision Date: 27 October 1980
• Docket Number: 78-3695 and 78-3697,Nos. 78-3696,No. 78-3694,78-3694,s. 78-3696
• Citation: 48 Or.App. 1025,618 P.2d 978
• Parties: Carol DUNDAS, Appellant, v. LINCOLN COUNTY, a body politic, Respondent. Maryann DEJA, Plaintiff, v. LINCOLN COUNTY, a body politic, Defendant. Charles JARVIS and Carol Jarvis, Plaintiffs, v. LINCOLN COUNTY, a body politic, Defendant. Cindy JEPSON, appearing by and through Barbara Jepson, her guardian ad litem, Plaintiff, v. LINCOLN COUNTY, a body politic, Defendant. ; CA 14786,
• Court: Oregon Court of Appeals

Page 978

618 P.2d 978

48 Or.App. 1025

Carol DUNDAS, Appellant, v. LINCOLN COUNTY, a body politic, Respondent.

Maryann DEJA, Plaintiff, v. LINCOLN COUNTY, a body politic, Defendant.

Charles JARVIS and Carol Jarvis, Plaintiffs, v. LINCOLN COUNTY, a body politic, Defendant.

Cindy JEPSON, appearing by and through Barbara Jepson, her guardian ad litem, Plaintiff, v. LINCOLN COUNTY, a body politic, Defendant.

No. 78-3694; CA 14786, Nos. 78-3696, 78-3695 and 78-3697.

Court of Appeals of Oregon.

Argued and Submitted May 21, 1980.

Decided Oct. 27, 1980.

James W. Walton, Corvallis, argued the cause for appellant. With him on the briefs were Robert G. Ringo, and Ringo, Walton, Eves & Gardner, P. C., Corvallis.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the brief were Ronald E. Bailey, and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Plaintiff ¹ brought an action against defendant Lincoln County for damages which occurred when four horses owned by plaintiff were destroyed by fire while stabled in a barn at the Lincoln County Fairgrounds. After plaintiff rested, the trial court granted defendant's motion for a judgment of involuntary nonsuit. Plaintiff assigns this ruling as error. We reverse.

In reviewing a judgment of involuntary nonsuit, we view the evidence in the light most favorable to plaintiff. Kirby v. Sonville, 286 Or. 339, 342, 594 P.2d 818 (1979). As so viewed, the evidence shows, in pertinent part, as follows: Plaintiff, an owner and experienced trainer of horses, had four horses stabled in the "old barn" at the fairgrounds at the time of the fire. The fire occurred August 2, 1977, shortly after the closing of the county fair, which was held the third weekend in July. Prior to the start of the fair, three of plaintiff's horses had been stabled in the "new barn" or livestock barn at the fairgrounds. Because the livestock barn was needed for 4-H exhibits during the fair, the Fair Board ² posted notices that all horses stabled in the livestock barn should be moved to the old barn or they would be removed. This procedure was followed by the Fair Board each year, and plaintiff had in previous years moved horses under the same circumstances.

The old barn, which was over 20 years old, was used only for the short period each year when due to the fair the livestock barn was not available for stabling horses. Measuring approximately 90 feet by 54 feet, it was a single wall structure made primarily of wood. The roof was shiplap construction with coats of tar. There was no flooring in the barn. Straw and wood chips were used for bedding, and hay was stored in lofts above some of the stalls. At each end of the barn was a dry chemical fire extinguisher and a water fire extinguisher. The building had no automatic sprinkler system, fire alarm system, or smoke or heat detectors. There was no telephone in the barn. Although there had previously been a canvas fire hose in the old barn, it had deteriorated and had never been replaced. Plaintiff paid $20 per month to stable each of her horses in the livestock barn. The county furnished bedding, water and electricity. Each horse owner was responsible for the care and feeding of his or her horses, and for the cleaning of the stalls. This arrangement was continued after the horses were moved to the old barn.

From approximately 6:00 or 7:00 a. m. until approximately 10:00 p. m. each day, the fairgrounds and barn were open for the horse owners and general public. At all other times, both the fairgrounds gate and the barn entrances were locked. The grounds manager and one horse owner, who was also a member of the Fair Board, were the only persons with keys to enter the grounds and barn at those times.

On the morning of the fire, a 13-year-old boy, whose parents had horses stabled in the old barn, was setting off caps in the barn when one burned him and he threw it backwards. He soon noticed a fire burning in the bedding of one of the stalls and attempted to put it out with the fire extinguishers in the barn. He "turned on the water, and it went for a couple of seconds, and it went out." When he tried to use the chemical extinguisher, it spread the fire more. He then ran to a nearby barn to use a telephone. Finding the barn locked, he was finally able to enter through a manure chute and call in an alarm to the fire department. By the time the fire-fighting equipment arrived, none of the horses in the barn could be saved.

Plaintiff's third amended complaint alleged that defendant was negligent in the following particulars:

"(1) The defendant knew, or should have known, that said building was a fire hazard and failed to take reasonable measures to alleviate said condition or to warn plaintiff.

"(2) Defendant knew, or should have known, that said building was not equipped with an alarm system and had failed to take reasonable measures to alleviate this situation or to warn plaintiff.

"(3) Defendant knew, or should have known, that said building was not equipped with an adequate fire fighting system and had failed to take reasonable measures to provide adequate fire fighting equipment or to warn plaintiff that an adequate fire system was not available."

Plaintiff's theory of the case was that defendant was the bailee of her horses, with a common law duty to exercise reasonable care toward the bailed property. It was also plaintiff's contention that defendant had a ministerial duty to maintain the barn and adequate fire fighting equipment therein so that the barn would not be a fire hazard and failed to exercise reasonable care to do so.

As grounds for its motion for judgment of involuntary nonsuit, defendant argued that: (1) there was no proof that any negligence was attributable to defendant; (2) there was no proof of any causal relationship between any negligence of defendant and plaintiff's loss; (3) the evidence failed to show any breach by defendant of a ministerial duty, and defendant was, therefore, immune from liability for damages; and (4) the defendant was merely a lessor of space and owed plaintiff no common law or statutory duty to modernize the barn or to provide or maintain a fire alarm or fire fighting system. We first address the immunity question.

Under ORS 30.265(3)(c), ³ defendant is immune from liability for a claim based on the performance or the failure to perform a discretionary function. In Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970), the Supreme Court attempted to outline the characteristics of a "discretionary function":

"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." 256 Or. at 506, 475 P.2d 78.

The court again attempted to describe "discretion" in McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978) " * * * 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 (1979), quoting Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 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 (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." 282 Or. at 436-37, 578 P.2d 1259.

Central to defendant's decision whether to modernize the old barn so that it would be less prone to catch fire are considerations of the availability of public funds and evaluation of spending priorities. The same may be said of a decision whether to equip the barn with a fire alarm, automatic sprinklers, smoke or heat detectors, or telephones. Such a decision also requires a determination of the best means to assure fire safety and assessment of the likelihood of a fire. Under the criteria outlined above, defendant's decision on these matters was discretionary.

Plaintiff argues, however, that there was evidence that defendant negligently maintained the fire extinguishers and thus failed to exercise reasonable care in the performance of a ministerial duty. The trial court rejected this argument, reasoning that the allegations of the complaint did not adequately inform defendant that plaintiff was proceeding on this theory. We conclude that plaintiff's allegation that defendant "failed to take reasonable measures to provide adequate fire fighting equipment" is broad enough, in the absence of a motion to make more definite and certain, to include the nondiscretionary failure to maintain existing fire extinguishers. See Wagner v. Portland, 40 Or. 389, 396-97, 67 P. 300 (1902). See also Antin v. Union High...