Leonard v. Jackson
| Decision Date | 30 November 1971 |
| Citation | 6 Or.App. 613,488 P.2d 838 |
| Parties | Elaine LEONARD, Appellant, v. Glenn L. JACKSON et al., Respondents. |
| Court | Oregon Court of Appeals |
Wendell Gronso, Burns, argued the cause for appellant. With him on the brief were Roy Kilpatrick and Robert Dayton, John Day, and John Smallmon, Hermiston.
Norma J. Paulus, Salem, argued the cause for respondents. With her on the brief were Malcolm F. Marsh and Clark & Marsh, Salem.
Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.
Plaintiff brought this action for damages for injuries she sustained when a large rock fell through the windshield of her automobile as she was traveling along the Columbia River highway in Umatilla County. The defendants are the members of the State Highway Commission, the state highway engineer, maintenance engineer, division engineer, district maintenance superintendent and section foreman.
In her amended complaint plaintiff alleged that defendants were negligent in planning and establishing said highway 'adjacent to a cliff which was approximately vertical' so that 'large rocks could and would free-fall on the traveled portion of said highway * * * creating an unreasonably dangerous condition * * * which the defendants * * * knew or should have known.' In addition she alleged defendants were negligent in 'failing to * * * (c) onstruct, maintain and operate the highway and adjacent cliffs in such a fashion as to prevent rocks from striking users of the highway,' and in failing to '(r) emove the loose rocks above the highway.' 1
The defendants demurred to the complaint upon the ground that the complaint failed to state a cause of action, citing as authority Smith v. Cooper, Or.App., 91 Adv.Sh. 287, 475 P.2d 78 (1970), which held that public officers and employes are generally immune from liability for alleged negligence in planning and designing highways. The lower court sustained defendants' demurrer and plaintiff appealed.
To the extent that plaintiff's allegations of negligence involve planning and designing of the highway, Smith is controlling, plaintiff cannot claim a right of recovery thereon, and defendants' demurrer was properly sustained. However, plaintiff also alleged negligence in failing to remove loosened rocks above the highway in question. Removal of rocks within the highway right of way might constitute highway maintenance and could be a ministerial act. The evidence may or may not sustain these allegations. This can only be determined by the trial judge after he has heard the evidence. Smith expressly recognized that negligent performance of a ministerial act, as distinguished from a discretionary act, could be the basis for recovery. Therefore defendants' demurrer should not have been sustained. 2
Affirmed in part; reversed in part and...
To continue reading
Request your trial
-
Donaca v. Curry County
...County, 36 Or.App. 231, 584 P.2d 335 (1978); Lanning v. State Hwy Comm., 15 Or.App. 310, 515 P.2d 1355 (1973); and Leonard v. Jackson, 6 Or.App. 613, 488 P.2d 838 (1971). Although those cases do recognize a duty of reasonable care on the part of the state highway commission in the performan......
-
Comley v. Emanuel Lutheran Charity Bd., 417-542
...19 Or.App. 50, 526 P.2d 616 Rev. den. (1974); Baker v. Straumfjord, 10 Or.App. 414, 500 P.2d 496 Rev. den. (1972); Leonard v. Jackson, 6 Or.App. 613, 488 P.2d 838 Rev. den. (1971). However, this is an inaccurate characterization. Immunity insulates defendant from liability for tortious cond......
-
Weaver v. Lane County
...by the court. Smith v. Cooper, supra, 256 Or. at 511, 475 P.2d 78; Ogle v. Billick, 253 Or. 92, 99 453 P.2d 677 (1969); Leonard v. Jackson, 6 Or.App. 613, 488 P.2d 838, Sup.Ct. review denied A ministerial act is described as '* * * being one that is done 'where the law prescribes and define......
-
Lanning v. State Highway Commission
...to remove loosened rocks above a highway 'might constitute highway maintenance and could be a ministerial act.' Leonard v. Jackson, 6 Or.App. 613, 615, 488 P.2d 838, 839, Sup.Ct. review denied (1971). We also held, relying on Smith, that the Lane County Director of Public Works was immune f......