Hawkins v. City of La Grande

• Decision Date: 26 January 1993
• Citation: 843 P.2d 400,315 Or. 57
• Parties: Byron W. HAWKINS and Jean Hawkins, husband and wife, Petitioners on Review, Respondents on Review, v. CITY OF LA GRANDE, a municipal corporation, Respondent on Review, Petitioner on Review. Fred D. WALLENDER and Sharon K. Wallender, husband and wife, Petitioners on Review, Respondents on Review, v. CITY OF LA GRANDE, a municipal corporation, Respondent on Review, Petitioner on Review. CC 86-11-30872; CC 86-11-30873; CA A47064 (control); CA A47065; SC S37410; SC S37418.
• Court: Oregon Supreme Court

Page 400

843 P.2d 400

315 Or. 57

Byron W. HAWKINS and Jean Hawkins, husband and wife, Petitioners on Review, Respondents on Review, v. CITY OF LA GRANDE, a municipal corporation, Respondent on

Review, Petitioner on Review.

Fred D. WALLENDER and Sharon K. Wallender, husband and wife, Petitioners on Review, Respondents on Review, v. CITY OF LA GRANDE, a municipal corporation, Respondent on

Review, Petitioner on Review.

CC 86-11-30872; CC 86-11-30873; CA A47064 (control); CA

A47065; SC S37410; SC S37418.

Supreme Court of Oregon.

Argued and Submitted Dec. 4, 1990.

Decided Dec. 17, 1992.

Reconsideration Denied Jan. 26, 1993.

[315 Or. 59] W. Eugene Hallman, Pendleton, argued the cause for petitioners on review/respondents on review Hawkins and Wallender. With him on the petition was Mautz Hallman, Pendleton.

[315 Or. 59A] Mildred J. Carmack, Portland, argued the cause for respondent on review/petitioner on review City of La Grande. With her on

the petition was Schwabe, Williamson & Wyatt

Before PETERSON, C.J., ^* and CARSON, ^** GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

FADELEY, Justice.

In these consolidated cases, defendant City intentionally released sewage-laden water (hereafter, effluent) flooding onto the farms of plaintiffs, killing plaintiffs' livestock and growing crops, and causing other harm.

Normally, defendant treated its sewage and then pumped the effluent by pipe 5 miles to a river. But the present case arose when weather conditions increased the flow of storm drainage water into the city's sewers to such an extent that another pump, which the city did not have, would have been needed to pump the increased volume of effluent to the river. No action was taken for a week. During that time, additional effluent flowed into the city's sewer ponds where it remained.

City's employee who operated the sewer plant testified that he released the untreated effluent into a slough when the level of the city's sewer ponds rose to within three feet of the top of their banks. Testimony established that the volume of effluent released would have raised the pond levels one foot. Although there were no such winds, a Department of Environmental Quality employee testified that he discussed with a city employee the possibility that waves might breach the banks, if high winds did arise. No prior warning was given about the effluent release. The effluent killed growing crops and livestock at farms downstream along the slough.

Plaintiffs pleaded both inverse condemnation and tort theories for recovery. Plaintiffs requested attorney fees on the inverse condemnation theory under ORS 20.085. ¹

At the close of plaintiffs' cases-in-chief, city moved for directed verdicts on the inverse condemnation claims. The trial court ruled that "as a matter of law that a single instance of flooding is not * * * inverse condemnation. * * * It doesn't * * * constitute a taking as distinguished from the infliction of damages." The Court of Appeals reversed, holding that the government action that killed livestock and growing crops was a condemnation of them, and remanded the inverse condemnation claims for loss of livestock and growing crops for further proceedings in the trial court. Hawkins v. City of La Grande, 102 Or.App. 502, 507-08, 795 P.2d 556 (1990). We granted defendant's petition for review of that portion of the Court of Appeals' decision, which for the most part, we affirm.

At the close of all the evidence at the trial, city separately moved for a directed verdict or for "dismissal under ORS chapter 401, which provides absolute immunity for any actions taken by a city * * * in the midst of an emergency or crisis situation * * * [providing] specific statutory immunity under ORS chapter 401 for emergency situations like this." ² The trial court ruled that there was no emergency and denied city's motion. That court also denied city's separate motion for directed verdict based on discretionary immunity.

The trial court submitted the tort claims to the jury whose verdict on them was for the plaintiffs in each case. Concerning the tort claims, the Court of Appeals reversed "We hold, as a matter of law, that defendant was immune from tort liability under ORS 401.515(1). The court erred in not granting a directed verdict." Hawkins v. City of La Grande, supra, 102 Or.App. at 505, 795 P.2d 556.

and instructed the trial court to vacate the judgments entered for plaintiffs on those verdicts, stating:

We granted plaintiffs' petition for review as to that portion of the Court of Appeals' decision and reverse it.

IMMUNITY

City pleaded these separate affirmative defenses, among others:

"Any damage to plaintiffs' property was a result of an act of God and not caused by any act of defendant.

" * * * * *.

"Defendant is immune from liability to plaintiffs pursuant to ORS 30.265(c)(3)."

No elaboration of either of these defenses whatever was alleged. City did not plead any facts relating to an emergency defense, statutory or otherwise, and made no mention of ORS chapter 401, or any section of that chapter, in its pleadings.

A. Emergency Act Immunity.

Plaintiffs argue that an ORS Chapter 401 emergency defense is not available for each of the three following reasons:

(1) Defendant did not plead it as an affirmative defense, although defendant affirmatively pleaded six other defenses.

(2) The statute allows the emergency defense only where the city establishes an "emergency management agency," which defendant had not done.

(3) The emergency immunity statute expressly provides that it does not excuse liability for intentional destruction of private property by any governmental agency.

Our disposition of plaintiffs' first argument makes it unnecessary to reach their remaining arguments. Because the claim of emergency agency immunity must have been pleaded as an affirmative defense, we hold that defendant was not entitled to assert it on appeal. ³

The relevant pleading rules call for defenses to be pleaded. Oregon Rules of Civil Procedure (ORCP) 13 A provides:

"The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses."

ORCP 19 B provides in part:

"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk * * * and any other matter constituting an avoidance or affirmative defense. * * * "

ORCP 21 A provides in part:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto * * *." (Emphasis added.)

According to ORCP 12 A, "[a]ll pleadings shall be liberally construed with a view of substantial justice between the parties," but some ultimate fact must be pleaded before there is anything to construe. ⁴ ORCP 19 B in part requires that "a party shall set forth affirmatively * * * any other matter constituting an avoidance or affirmative defense." This, city did not do.

However, ORCP 12 B provides a test for disregarding pleading defects, stating that: "The court shall, in every stage A review of one section of ORS chapter 401, ORS 401.515, indicates that many different issues of fact and law may arise under that chapter as to whether immunity is available to a specific actor or a specific action.

                of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party."   A substantial right is affected where the pleadings fail to allege facts that alert the court to and support the actual claims or defenses of an adverse party.  Our cases have required pleadings of adequate facts.  Samuel v. Frohnmayer, 308 Or. 362, 369, 779 P.2d 1028 (1989) ("If recovery of attorney fees is to be based on ORS 182.090, some notice in the form of pleaded facts will be necessary before a court can consider awarding them.")
                

Because of city's failure to plead immunity under ORS 401.515 as an affirmative defense, the record developed in this case provides no basis on which to identify the relevant legal or factual issues as to city's claim of immunity, let alone to resolve them, even though a full trial otherwise was held. City's failure to plead immunity under ORS 401.515 is fatal to its assertion of it as a defense. We turn to another potential source of statutory immunity.

B. Discretionary Immunity Under ORS 30.265.

City contends that, in the event ORS chapter 401 "emergency" agency immunity is not available, then discretionary immunity under ORS 30.265(3)(c) prevents liability of city for the acts of its sewer plant operator that discharged its sewer-water on plaintiffs' lands.

ORS 30.265(1) in part provides:

"Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598."

ORS 30.265(3) in part provides:

"Every public body and its officers, employees 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 fact that a decision is made, choosing between available alternatives, does not yet demonstrate that the type of discretion that is entitled to immunity has been exercised. Lowrimore v. Dimmitt, 310 Or. 291, 296, 797 P.2d 1027 (1990) (mere fact of a "choice among two or more courses of action" does not make the choice a "policy judgment" as is required before discretionary immunity will apply). In Lowrimore, this court explained that:

"A traffic officer's...