Hughes v. Wilson

• Decision Date: 18 December 2008
• Docket Number: SC S055326).,CA A132266;,(CC 0500174CC
• Citation: 345 Or. 491,199 P.3d 305
• Parties: Gregory A. HUGHES and Laurie Ann Hughes, Petitioners on Review, v. Keith L. WILSON and Wasco County Public Works Department, Defendants, and Wasco County, Respondents on Review.
• Court: Oregon Supreme Court

199 P.3d 305

345 Or. 491

Gregory A. HUGHES and Laurie Ann Hughes, Petitioners on Review, v. Keith L. WILSON and Wasco County Public Works Department, Defendants, and Wasco County, Respondents on Review.

(CC 0500174CC

CA A132266;

SC S055326).

Supreme Court of Oregon, En Banc.

Argued and Submitted June 3, 2008.

Decided December 18, 2008.

On review from the Court of Appeals.^*

Dean Heiling, Heiling Dwyer & Associates, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief was Don S. Willner, Portland.

Stan LeGore, Miller & Wagner, LLP, Portland, argued the cause and filed the brief for respondent on review.

W. Eugene Hallman, Hallman & Dretke, Pendleton, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Linda Wicks, Assistant Attorney General, Salem, filed a brief on behalf of amicus curiae State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

WALTERS, J.

In this case, we consider a county's claim of immunity from civil liability under ORS 30.265(3)(c), Oregon's discretionary immunity statute.

Plaintiff Hughes was driving his motorcycle on Cherry Heights Road, a county road in Wasco County, when defendant Wilson drove out of a private driveway and the two vehicles collided. Plaintiff¹ brought a personal injury action against Wilson, alleging that Wilson was at fault in entering the road from a point where visibility of approaching traffic was obstructed,² and against Wasco County (county), alleging that a bush on the unpaved portion of the county road obscured motorists' vision, causing plaintiff's injuries.

In the trial court, the county moved for summary judgment under ORS 30.265(3), which provides public bodies with immunity from liability arising out of certain kinds of discretionary decisions. The county proffered evidence that it had delegated authority to make policy decisions regarding maintenance of county roads to its Director of Public Works, Boldt. Boldt submitted an affidavit stating that he had adopted a policy "for brush cutting"; that that policy was "established and in force prior to the motor vehicle accident which forms the basis for the present lawsuit"; and that it was "formulated through a balancing of the needs of the County, the available resources, and public safety." The county argued that the uncontested evidence established that Boldt had made a policy-level choice not to check or maintain vision clearance for private driveways unless private landowners gave notice of an impairment to vision. The county asserted that that choice was a discretionary function and, therefore, that the county was immune from liability under ORS 30.265(3)(c).

Plaintiff opposed the county's motion and characterized the evidence and the law differently. Plaintiff submitted deposition excerpts stating that the county's policy had not been set out in writing and that the county had not communicated it to county officials, county employees, or private landowners. Therefore, plaintiff argued, that policy should not be given effect. Further, plaintiff contended, the county's policy amounted to a decision not to fulfill the county's duties to inspect and maintain its roads and a decision not to exercise care is not entitled to immunity under ORS 30.265(3)(c).

The trial court granted the county's motion and entered a general judgment dismissing plaintiff's complaint.³ The Court of Appeals affirmed the decision of the trial court without opinion. Hughes v. Wilson, 213 Or.App. 588, 162 P.3d 1095 (2007). We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.

We begin our analysis with the text of ORS 30.265, which provides, in part:

"(1) 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.

"* * * * *

"(3) 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."

Tensions inherent in the text of that statute have defied easy resolution. Section (1) of ORS 30.265 makes public bodies liable for their torts. Paragraph (3)(c) grants those entities immunity from claims based upon a "discretionary function or duty." In fact, however, whenever a governmental employee determines facts and acts accordingly, that employee makes a number of choices and thereby exercises discretion. Yet, the law often imposes limits on those choices and recognizes that acts in violation of those limits may give rise to liability.⁴

Recognizing those tensions, this court has explained that the legislature used the words "discretionary function or duty" to exempt governmental entities from liability only for "certain types of decisions, namely, those that require supervisors or policy makers to assess costs and benefits, and to make a choice among competing goals and priorities." Vokoun v. City of Lake Oswego, 335 Or. 19, 31, 56 P.3d 396 (2002) (citing McBride v. Magnuson, 282 Or. 433, 437, 578 P.2d 1259 (1978)). Accord Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 89, 843 P.2d 415 (1992). This court also has explained that, if the law requires a government to exercise due care, then ORS 30.265 does not immunize its decision not to exercise care at all. When a public body owes a duty of care, that body has discretion in choosing the means by which it carries out that duty. Little v. Wimmer, 303 Or. 580, 589, 739 P.2d 564 (1987); Miller v. Grants Pass Irrigation, 297 Or. 312, 320, 686 P.2d 324 (1984). But "[t]he range of permissible choices does not * * * include the choice of not exercising care." Mosley, 315 Or. at 92, 843 P.2d 415.

On review to this court, the county bases its defense of discretionary immunity on what it characterizes as a policy-level choice of means to fulfill its road maintenance duties. To analyze that defense, we first examine the nature of the county's road-maintenance duties.

The common law imposes a general, nondiscretionary duty on landowners to make their property reasonably safe for their invitees. Accordingly, public landowners must make public property reasonably safe for members of the public who use the property in a manner that is consistent with its public purpose. See Woolston v. Wells, 297 Or. 548, 557-58, 687 P.2d 144 (1984) (possessor of land has a duty to use reasonable care to make land safe for invitees); Taylor v. Baker, 279 Or. 139, 146, 566 P.2d 884 (1977) (invitees include members of the public on land for purpose for which land is open to public). As this court has stated, the duty to make property reasonably safe includes a duty to inspect the property for conditions that create an unreasonable risk of harm:

"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm."

Woolston, 297 Or. at 557-58, 687 P.2d 144.

The legislature has assigned county road-maintenance responsibilities to county governing bodies and road officials, ORS 368.001,⁵ and, in doing so, has evidenced an intent that accords with the common law. By assigning local governments the responsibility to carry out road-maintenance functions, the legislature intends that those governments will fulfill their common-law responsibilities and make travel on their roads reasonably safe for the general public. See Little, 303 Or. at 589, 739 P.2d 564 (stating principle based on state highway statutes). A county's responsibility for road maintenance extends not only to the paved portion of county roads, but also to county rights-of-way in their entirety. ORS 368.001(1) defines "county road" as "a public road under the jurisdiction of a county that has been designated as a county road" (emphasis added), and ORS 368.001(6) defines a "road" as "the entire right of way of any public or private way that provides ingress to or egress from property by means of vehicles or other means or that provides travel between places by means of vehicles." (Emphasis added.)

In this case, therefore, the county had a general common-law duty to inspect its roads, including the unpaved portions of those rights-of-way, and to maintain those roads, in their entirety, in a reasonably safe condition for the benefit of the traveling public.⁶

The next step in our analysis is to examine the policy-level decision which the county asserts to render it immune from liability for plaintiff's claim.⁷ Plaintiff, in his complaint, alleged that the county was negligent in its execution of its road-maintenance duties because it had allowed a bush that obscured the vision of motorists to grow on the unpaved portion of Cherry Heights Road, had failed to remove the bush, and had failed to warn motorists of the obstructed vision. As an affirmative defense to plaintiff's claim, the county alleged that its "program for the removal of shrubbery from and adjacent to the roadway system in Wasco County and the execution thereof" entitled it to discretionary immunity. In support of its motion for summary judgment, the county submitted the Boldt affidavit, which...