Gallison v. City of Portland

• Decision Date: 14 November 1978
• Docket Number: No. 169566,169566
• Parties: David GALLISON, Respondent, v. CITY OF PORTLAND, Oregon, a Municipal Corporation, Appellant. ; CA 9900.
• Court: Oregon Court of Appeals

Page 393

586 P.2d 393

37 Or.App. 145

David GALLISON, Respondent, v. CITY OF PORTLAND, Oregon, a Municipal Corporation, Appellant.

No. 169566; CA 9900.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 22, 1978.

Resubmitted in banc on July 26, 1978.

Decided Nov. 14, 1978.

Thomas R. Williams, Deputy City Atty., Portland, argued the cause for appellant. With him on the brief was Christopher P. Thomas, City Atty., Portland.

D. Richard Hammersley, Portland, argued the cause for respondent. With him on the brief was Richard Springer, Portland.

JOHNSON, Presiding Judge.

Defendant City of Portland appeals from a judgment after a trial without a jury awarding plaintiff damages arising out of a two-car collision which occurred on October 5, 1976, at the intersection of two city streets. The trial court concluded that defendant was negligent in installing and failing to adequately inspect the traffic signal lights at the intersection. We reverse on the ground that the alleged acts or omissions were discretionary acts for which the city was immune from liability under ORS 30.265.

The accident occurred at night when plaintiff drove south on Southwest Broadway and collided with another car proceeding in the same direction on the off-ramp from Interstate 405. The two streets intersect at a 30 degree angle. There are four signal lights at the intersection, two facing north on Broadway, two facing north on the off-ramp. At the time of the accident, the lights facing Broadway were red and those facing the off ramp were green. Plaintiff contends the accident occurred because although the lights facing Broadway were red, he observed at least one green light indicating to him that he could proceed through the intersection.

In 1973, the City installed the four "3M model 131" lights at the intersection. Such lights are designed to focus intense light in the direction of the oncoming traffic but do not wholly prevent some peripheral light from escaping in other directions, particularly where the intersection is at a 30 degree angle as is the case here. Before 1973, the City had controlled this intersection by another type of signal light which had proven to be unsatisfactory and the source of several complaints from drivers. In summary, the city's witness testified that plaintiff may have been able to see the green light as well as the red light, but that the "3M" lights were the most feasible method of controlling this difficult intersection considering the existing state of technology. The city's witness also admitted that a shield for the light could have been designed and manufactured. It was undisputed that the light was inspected after the accident and was found to be operating in accordance with the original design.

The perimeters of the discretionary function immunity afforded governmental agents and their principals are rather well settled in the area of road and street design and maintenance. See Daugherty v. State Highway Commission, 270 Or. 144, 526 P.2d 1005 (1974); Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970); Mayse v. Coos County, 35 Or.App. 779, 583 P.2d 7 (1978); Jones v. Chehalem Park and Rec. Dist., 28 Or.App. 711, 560 P.2d 686 (1977); Lanning v. State Hwy. Commission, 15 Or.App. 310, 515 P.2d 1355 (1973); Weaver v. Lane County, 10 Or.App. 281, 499 P.2d 1351 (1972). The general rule is that planning and designing of roads is a discretionary act. Smith v. Cooper, supra. This rule includes not only the actual design of the street, but also the placement and location of signs and signals. Indeed, we cannot see any distinction between the alleged defective design of the signal lights in this case and many of the alleged design failures for which the state was held to be immune from liability in Smith v. Cooper, supra. ¹

Plaintiff attempts to distinguish Smith v. Cooper by also contending that the City was negligent in failing to inspect and thus maintain the signals in a safe condition. Plaintiff's contentions in this regard are no different from those at issue in Smith v. Cooper, supra, wherein the court stated:

"The complaint in VII(a) charges the defendants with negligence not only in the designing and planning of the junction but with negligence in 'maintaining' the junction. Because of the context in which 'maintaining' is used, we find it obvious that the plaintiff is using 'maintaining' in the sense that the defendants continued in effect the junction as planned and designed, including the planned and designed safety precautions or lack of safety precautions. Plaintiff is not using 'maintain' to mean keeping in a state of repair. For these reasons the charge against the defendants for the manner in which they 'maintain' the junction does not add anything to the charge of faulty 'designing and planning.' " 256 Or. at 511-12, 475 P.2d at 91.

See also Mayse v. Coos County, 35 Or.App. at 783, 583 P.2d 7.

Those cases following Smith v. Cooper, supra, wherein it was held that immunity did not exist because the alleged acts or omissions constituted "maintenance" all involved a failure to inspect, correct or warn of a condition such as ice on the road which was unrelated to the design. See Daugherty v. State Highway Commission; Jones v. Chehalem Park & Rec. Dist.; Lanning v. State Hwy. Commission; all Supra. Here, the undisputed evidence was that the signals were inspected immediately after the accident and were found to be operating in accordance with the original design. Plaintiff's theory, which was adopted by the trial court, is not that the signals had fallen into disrepair, but rather that if they had been more...