Jarrett v. Wills

Decision Date15 July 1963
Citation383 P.2d 995,235 Or. 51
PartiesPauline Elizabeth JARRETT, Respondent, v. Russell M. WILLS, Administrator of the Estate of Irvin B. Hill, Deceased, Appellant, and Robert Sandilands, Jane Doe, Howard Haggbloom and Nelpa Haggbloom, Defendants.
CourtOregon Supreme Court

Louis S. Bonney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Frank M. Ierulli, Portland, filed a brief for respondent.


SLOAN, Justice.

Plaintiff was assaulted and injured by a man who had been an inmate of the Oregon Fairview Home. Prior to the injuries complained of the inmate had been given a leave of absence, pursuant to ORS 427.150, by Irvin B. Hill, the then Superintendent of Fairview Home. Plaintiff brought this action to recover for her injuries. She alleged that Superintendent Hill had been negligent in granting the leave of absence to the inmate and that he was also negligent in providing a means of supervision of the inmate while on leave. Superintendent Hill died before this action was filed. The named defendant, Russell M. Wills, was the administrator of Dr. Hill's estate. Other defendants were named in the complaint but they are of no significance here.

Defendant, of course, claimed that Dr. Hill was immune from this action. The trial court denied the bar of immunity and this action was tried to a jury. A verdict and judgment were entered in favor of plaintiff. Defendant appeals.

It is contended here that the question of Dr. Hill's immunity was not properly presented by the pleadings and was, therefore, waived. The issue of immunity in this case is of such public importance that we will forego the pleadings question and decide the matter of immunity. The end result in a case of this kind is that a judgment can or cannot be entered against the defendant. The case may be one, such as Salem Mills Co. v. Lord, 1902, 42 Or. 82, 69 P. 1033, 70 P. 832, in which evidence was required in order to decide the immunity of the official being sued. Or it may be a case wherein it can be decided by the allegations of the complaint that a judgment could not be entered on the facts alleged. Federal Land Bank v. Schermerhorn, 1937, 155 Or. 533, 64 P.2d 1337. In either case, if immunity is shown to exist a judgment against the state or the immune official cannot be entered.

It is now settled that in this state only the legislature can waive immunity, James & Yost v. Board of Higher Education, 216 Or. 598, 340 P.2d 577; Vendrell v. School District No. 26C et al., 1961, 226 Or. 263, 360 P.2d 282. There could be no claim of legislative waiver in this case. The same cases make it equally conclusive that an action against an agency of the state, such as the Fish Commission, is one against the state. It has not been decided whether or not this immunity protects an alleged negligent performance of a duty by an administrative official. To decided that question it is of first concern to look to the duties imposed upon the official.

In the instant case the statutory authority of the superintendent and the rules and regulations of the Board of Control, of which we take notice (ORS 41.410), as to the release of an inmate enlighten us as to the full scope of the superintendent's powers and responsibilities in respect to his actions involved in this case. The allegations of the complaint in this case could only have held the superintendent liable for his actions as the superintendent, not as an individual. Those allegations all related to the duties and responsibilities of Dr. Hill that were imposed upon him by law.

The pertinent part of the statute, ORS 427.150 allowing leaves of absence, provides:

'(1) The superintendent may grant leave of absence to any inmate of the Oregon Fairview Home pursuant to the rules and regulations of the Board of Control. * * *.'

The regulations of the Board of Control vest complete discretion in the superintendent. Other sections of the Code relating to the Fairview Home vest other broad discretionary powers in the superintendent. It is also noted that he must accept, in the chronological order of the commitment, all of those committed to the home. He, statutorily, is the state's keeper of those committed to his care.

The cases, both state and federal, that have examined the immunity of a governmental official for alleged negligent performance of duty are too numerous to cite or mention. Reference to Jennings, Tort Liability of Administrative Officers, 1937, 21 Minn.L.Rev. 263; 3 Davis, Administrative Law Treatise, 1958, Chapter 26; 2 Harper & James, The Law of Torts, 1956, § 29.8, page 1632, et seq.; Prosser on Torts, (2d ed. 1955), page 780 et seq., provides a dissection and an analysis of the many cases and of the rational thereof. Each of the authors just cited also expose the confusion found in the cases; a confusion and conflict created by the efforts of the courts to decide when a public officer should or should not be held immune from liability for the alleged negligent performance of his official duties.

Generally, the courts have said that performance of a discretionary function is immune while a ministerial act is not. It is easy to discover that the boundaries thus fixed are not immutable. Even a cursory examination of the several kinds of administrative action will reveal that so called discretionary and ministerial duties frequently overlap and more frequently are indistinguishable. In defense of the courts' efforts to bring some stability into the problems created by the cases it can be said that this is little different than other unnumbered areas of the law wherein the courts, and the scholars, grope for words or phrases that will set apart and define one kind or degree of human conduct from another. It might also be said that courts are not alone to blame for the inability of words to always convey a precise meaning or limit the scope of the conduct the word is intended to imply. In this instance, however, we need not assume the burden of deciding where, on a descending scale of authority and conduct, the act of an official lacks immunity. The duties and...

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28 cases
  • Albers v. Whitley, Civ. A. No. 81-517-PA.
    • United States
    • U.S. District Court — District of Oregon
    • 31 Agosto 1982
    ...employees were immune from tort liability arising from the performance of "discretionary functions." Jarrett v. Wills, 235 Or. 51, 54-55, 383 P.2d 995, 997 (1963). By passage of the Oregon Tort Claims Act, the legislature waived immunity with enumerated exceptions. No remedy was abolished. ......
  • Brennen v. City of Eugene
    • United States
    • Oregon Supreme Court
    • 27 Febrero 1979
    ...function that is inappropriate for judicial review. Cf., Smith v. Cooper, supra (planning and designing of highways); Jarrett v. Wills, 235 Or. 51, 383 P.2d 995 (1963) (decision to release inmate from state hospital for the mentally We therefore conclude that defendants are not immune under......
  • Krieger v. Just
    • United States
    • Oregon Court of Appeals
    • 20 Abril 1993
    ...employees were not immune, however, unless the liability arose from the performance of "discretionary functions." Jarrett v. Wills, 235 Or. 51, 56, 383 P.2d 995 (1963); see also ORS 30.265(3)(c). If a public employee was performing a nondiscretionary act, the employee was not immune, even i......
  • Sherrill v. Wilson, 64746
    • United States
    • Missouri Supreme Court
    • 30 Junio 1983
    ...of an institution were not liable for errors of judgment in transferring a patient who then escaped and caused injury. Jarrett v. Wills, 235 Or. 51, 383 P.2d 995 (1963), held that the superintendent of a mental institution was not liable for injuries caused by an allegedly dangerous mental ......
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