Moody v. Lane County, Or.

• Citation: 36 Or.App. 231,584 P.2d 335
• Decision Date: 18 September 1978
• Docket Number: No. 76-5246,76-5246
• Parties: Colleen A. MOODY, Personal Representative of the Estate of Jerry Lee Moody, Deceased, Appellant, v. LANE COUNTY, OREGON, a political subdivision of the State of Oregon, Respondent. ; CA 9059.
• Court: Oregon Court of Appeals

Page 335

584 P.2d 335

36 Or.App. 231

Colleen A. MOODY, Personal Representative of the Estate of Jerry Lee Moody, Deceased, Appellant, v. LANE COUNTY, OREGON, a political subdivision of the State of Oregon, Respondent.

No. 76-5246; CA 9059.

Court of Appeals of Oregon.

Argued and Submitted March 24, 1978.

Decided Sept. 18, 1978.

John B. Arnold, Eugene, argued the cause for appellant. With him on the briefs were Arthur C. Johnson and Johnson, Harrang & Mercer, Eugene.

Randall Bryson, Eugene, argued the cause for respondent. On the brief were Richard Bryson, Calkins & Calkins and Bryson & Bryson, Eugene.

Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.

TANZER, Judge.

This is an action for wrongful death against Lane County. The decedent was allegedly killed in a head-on automobile collision at an intersection which was designed and maintained by the County. Plaintiff alleges that, after the County identified a hazardous condition at the intersection and authorized minor changes in traffic control which would have alleviated that condition, it unreasonably delayed making those authorized changes. Plaintiff further alleges that the County's negligent delay was a proximate cause of decedent's death.

The County demurred to plaintiff's second amended complaint on the ground that the County's alleged failure to act was a discretionary function for which it was immune under the Tort Claims Act. ORS 30.265(3)(c). ¹ The circuit court sustained the demurrer and, after plaintiff declined to plead further, judgment was entered for the County. This appeal followed.

The discretionary act exception to the general waiver of governmental immunity contained in the Tort Claims Act is intended to preclude judicial review of certain political decisions which are expressly committed to other branches of government. The exception protects governmental decisions which involve public policy considerations such as the availability of funds, public acceptance and order of priorities. Smith v. Cooper, 256 Or. 485, 506, 475 P.2d 78, 45 A.L.R.3d 857 (1970). In Comley v. State Bd. of Higher Ed., 35 Or.App. 465, 582 P.2d 443 (1978), we stated the underlying rationale of the discretionary act exception as follows "* * * To permit a jury or judge to pass upon the reasonableness of such governmental decisions in the context of a tort action would dilute the decision-making authority of the branch of government entrusted with the responsibility for that decision. The judiciary would thus become the final arbiter of the political decisions of the other co-equal branches of government. * * * (T)he discretionary act exception (is) a shield from this sort of judicial usurpation. In a sense, the exception served to preserve the separation-of-powers principle upon which our government was founded." 35 Or.App. at 475, 582 P.2d at 450.

Application of the discretionary act exception in a manner consistent with its underlying doctrine requires examination of the nature of the government action upon which plaintiff's claim is based. If adjudication of the claim necessarily involves judicial second-guessing of a public policy based decision made by another branch of government, then immunity attaches. Conversely, if the claim does not involve judicial review of such a governmental decision, then the discretionary act exception does not apply even though defendant's conduct may involve judgment of a non-governmental nature. Comley v. State Bd. of Higher Ed.

In this case, plaintiff's claim against the County, as set forth in her second amended complaint, is predicated upon the following conduct:

"Approximately a year prior to the date of the described collision, Defendant learned that the shape of the intersection and the existing traffic control at the intersection constituted an unnecessary traffic hazard which could be remedied by a simple and inexpensive change, to wit: The prohibiting of left turns from West 11th Avenue onto Crow Road and requiring vehicles which intend to proceed onto Crow Road to do so by proceeding farther west to the next intersection where they would make a 90o left turn off of West 11th Avenue thereby avoiding the long acute angle. Defendant exercised its discretion, selected a design which would eliminate the existing hazard caused by the long acute angle of the existing intersection and made the decision to make appropriate changes. To accomplish those changes it was not necessary to acquire any additional land, and the necessary funds, manpower, and materials required to make the change were available and remained continuously available from the time of the decision until the date of the collision, approximately a year later, but the changes were not made during that time.

"* * * of

"Defendant was negligent in one or more of the following particulars:

"(1) In failing to make the changes at the intersection which it had decided to make, within a reasonable time after the decision.

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