Jones v. Chehalem Park and Recreation Dist.

• Decision Date: 28 February 1977
• Citation: 560 P.2d 686,28 Or.App. 711
• Parties: Karen Frances JONES by Helen J. Jones, her guardian ad litem, Appellant, v. CHEHALEM PARK & RECREATION DISTRICT et al., Respondents.
• Court: Oregon Court of Appeals

Page 686

560 P.2d 686

28 Or.App. 711

Karen Frances JONES by Helen J. Jones, her guardian ad litem, Appellant, v. CHEHALEM PARK & RECREATION DISTRICT et al., Respondents.

Court of Appeals of Oregon.

Argued and Submitted Jan. 24, 1977.

Decided Feb. 28, 1977.

Donald O. Tarlow, Newberg, argued the cause for appellant. With him on the briefs was Brown & Tarlow, Newberg.

Larry A. Brisbee, Hillsboro, argued the cause and filed the brief for respondents.

Before SCHWAB, C.J., and RICHARDSON and JOHNSON, JJ.

JOHNSON, Judge.

This is an action for personal injuries under the Oregon Tort Claims Act, ORS 30.260 et seq., alleging negligence by a park and recreation district in the design and operation of the driveway and parking area adjacent to the district's public swimming pool. The defendant park and recreation district's demurrer was sustained by the trial court and plaintiff appeals. The other named defendants are not parties to this appeal. The ground for the demurrer was that the defendant is immune from liability under ORS 30.265(2)(d) which provides:

'Every public body is immune from liability for:

'* * *

'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 complaint states that the pedestrian entrance and exit from the pool leads directly to a circular single lane driveway. Immediately adjacent to the driveway is a parking area with angle parking so that automobiles leaving the parking area must first back into the driveway toward the pool entrance. The accident occurred when plaintiff was leaving the pool entrance and was struck by a car backing up in the driveway. The plaintiff alleges that defendant was negligent in seven particulars:

'1. Failure to provide sidewalks or other safe means of exit from the Chehalem Pool facility.

'2. Failure to post any warning signs or notices to advise plaintiff and the general public of the danger in exiting said pool.

'3. Failure to erect or post any warning signs or notices warning drivers of motor vehicles of pedestrian traffic exiting said pool facility.

'4. Failure to provide a crosswalk or other safe means of crossing said circular driveway.

'5. Failure to erect and post adequate traffic directional signals and signs in said circular driveway so as to control traffic flow and parking.

'6. Failure to maintain existing traffic direction signs in a sufficient manner so as to be observable by vehicular traffic.

'7. Failure to maintain a guard or other supervisory personnel to safeguard and control pedestrian and vehicular traffic in front of said pool facility.'

The trial court was in error in sustaining the demurrer with respect to allegation 6.

The 'discretionary function or duty' exception to tort liability provided for in ORS 30.265(2)(d) is common to both state and federal tort liability laws. See, e.g., Cal.Gov.Code § 820.2 (West 1966); 28 U.S.C.A. § 2680(a) (1965). Judges and scholars have diligently attempted to define the exception without great success. The leading decision in Oregon is Smith v. Cooper, 256 Or. 485, 499--511, 475 P.2d 78, 85 (1970). In that case the court did not purport to define the exception, but rather establish guidelines which were admittedly imprecise. We will not attempt to paraphrase those guidelines, but quote:

'The difficulty with all these attempts to state the distinction between 'discretionary' and 'ministerial' is that all, or almost all, acts performed by government employees involve some judgment or choice * * *. The issue is really, how much 'discretion' must be involved in the performance so as to render the employee immune? This means that at some point along the continuum of discretion a division must be made with liability on one side and immunity on the other and this division must necessarily be arbitrary.

'* * *

'* * * In our opinion * * * 'Where there is room for policy judgment and decision there is discretion.' (Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).)

'* * *

'* * * we do not find the planning-operational dichotomy to be of assistance and do not adopt it.

'* * *

'* * * Although the California court has not been definitive in stating the factors or the content of each factor, we find its basic reasoning of assistance.

'In attempting to state when acts are deemed 'discretionary' the California court in Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 230, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467 (1961), stated:

* * * Although it may not be possible to set forth a definitive rule which would determine in every instance whether a governmental agency is liable for discretionary acts of its officials, various factors furnish a means of deciding whether the agency in a particular case should have immunity, such as the importance to the public of the function involved, the extent to which governmental liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages.'

'* * *

'* * * a decision is discretionary in the sense that the superintendent has a wide latitude of decision uncontrolled by any specific rules.

'* * *

'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.

'* * *

'We hold that state employees are generally immune from liability for alleged negligence in planning and designing highways.'

The Oregon courts have applied these tests with the following results: In Jarrett v. Wills, 235 Or. 51, 383 P.2d 995 (1963), cited with approval in Smith v. Cooper, supra 256 Or. at 506, 475 P.2d 78, the court held that the decision of the state hospital administrator to grant a leave of absence to an inmate was discretionary. In Keeland v. Yamhill County, 24 Or.App. 85, 545 P.2d 137 (1976), the decision to permit inmates in the jail to possess razor blades was held to be ministerial. Smith held that the design of a highway intersection was discretionary. In Daugherty v. State Highway Comm., 270 Or. 144, 526 P.2d 1005 (1974), at 147--48, 526 P.2d 1005...