Stevenson v. State Dept. of Transp.

• Decision Date: 04 November 1980
• Docket Number: No. 76-956-L,76-956-L
• Citation: Stevenson v. State Dept. of Transp., 290 Or. 3, 619 P.2d 247 (Or. 1980)
• Parties: Dale STEVENSON, Personal Representative of the Estate of Brenda Fern Stevenson, deceased, Petitioner, v. STATE of Oregon DEPARTMENT OF TRANSPORTATION, Highway Division, Respondent, and James Linder, an incompetent, by and through Emma Linder, his guardian ad litem, Petitioner. ; CA 10590; SC 26610, 26623.
• Court: Oregon Supreme Court

Page 247

619 P.2d 247

290 Or. 3

Dale STEVENSON, Personal Representative of the Estate of Brenda Fern Stevenson, deceased, Petitioner, v. STATE of Oregon DEPARTMENT OF TRANSPORTATION, Highway Division, Respondent and James Linder, an incompetent, by and through Emma Linder his guardian ad litem, Petitioner.

No. 76-956-L; CA 10590; SC 26610, 26623.

Supreme Court of Oregon.

Argued and Submitted March 4, 1980.

Decided Nov. 4, 1980.

Richard K. Lane, of Brown, Hughes, Bird & Lane, Grants Pass, argued the cause and filed the briefs for petitioner Dale Stevenson.

William E. Duhaime, of Brophy, Wilson & Duhaime, Medford, argued the cause and filed the briefs for petitioner James Linder.

[290 Or. 4-A] Edward H. Warren, Portland, argued the cause and filed the brief for respondent State of Oregon.

Clayton C. Patrick and Michael R. Shinn, Salem, filed the brief amicus curiae on behalf of Oregon Trial Lawyers Ass'n.

Before DENECKE, C. J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ.

DENECKE, Chief Justice.

This case requires us to consider the meaning of the provision in the Tort Claims Act that public bodies are immune from tort liability arising out of the performance of a discretionary function.

The action is against the State of Oregon by the plaintiff Stevenson for wrongful death and by the cross-claimant Linder for personal injuries resulting from a collision between a truck and a passenger car at the intersection of Redwood Avenue and the Redwood Highway near Grants Pass. The intersection is controlled by traffic signals which normally remain green for Highway traffic unless a change in the lights is activated by vehicles passing over sensors in the Avenue. The truck was on the Highway and, according to undisputed testimony, entered the intersection with a green light. There was no direct evidence about the color of the light controlling traffic on the Avenue at the time the car entered the intersection. ¹ Witnesses who saw the car the intersection testified that its driver did not brake, slow, or take any apparent evasive action.

The case was presented to the jury on two alternative factual charges of negligence against the state highway division. One theory was that the signal lights, at the time of the accident, were malfunctioning and showed green in both directions. The other was that the arrangement and design of the signals were deceptive so that motorists on the Avenue, until they rounded a curve leading directly into the intersection, could see the light governing traffic on the Highway and thus be led to believe that Avenue traffic had a green light when in fact it did not. The state was alleged to be negligent in failing to shield the Highway light so as to prevent this misleading effect.

The trial court overruled the state's motions for a directed verdict and to withdraw from the jury's consideration the allegations of negligence supporting each of these theories. The jury returned a verdict in favor of the car's injured driver and the estate of the deceased passenger, finding that 65% of the negligence which caused the accident was attributable to the state and 35% of the driver. The Court of Appeals reversed. Stevenson v. State of Oregon, 42 Or.App. 747, 601 P.2d 854 (1979).

We conclude the Court of Appeals was in error in holding that there was no evidence from which the jury could find that at the time of the fatal collision the light malfunctioned and showed green in both directions. The signal light was installed in August 1975 and there was evidence that from that time on there were complaints of malfunction. There was evidence that these malfunctions occurred up to the time of the fatal collision and thereafter. The Highway Division personnel were aware of these complaints and made frequent inspections but the jury could find that whatever the cause these malfunctions had not been corrected at the time of the collision.

The evidence was that the light was green for the truck. There was no direct evidence of the color of the light for the passenger car; however, the evidence was that it entered the intersection without braking or slowing down. From the evidence of the malfunctions and the conduct of the driver of the car the jury could properly infer that the light was green for the passenger car as well as the truck, and the state was negligent in failing to correct this malfunction.

The other allegations of negligence present the substantial problem in this case. The evidence would permit a finding that highway devision employes were negligent in failing to provide shields adequate to prevent motorists on the Avenue from being misled by the green light governing traffic on the Highway. The state argues, however, that determining the need for such a change in equipment is a discretionary function, and that the state cannot, under the provisions of the Tort Claims Act, be held liable for a negligent exercise of that discretion.

ORS 30.265(3), which is part of the Tort Claims Act, provides:

'Every public body and its officers, employes 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.'

We granted review in this case because we were concerned that in at least some kinds of situations questions of discretionary immunity under the statute were being decided by a mechanical or semantic approach; that is, were the state employees engaged in designing or planning, in which case they would be immune, or in maintenance, in which case they would not be immune. See Smith v. Cooper, 256 Or. 485, 475 P.2d 78, 45 A.L.R.3d 857 (1970).

The issue in Smith v. Cooper, supra, concerned the common law immunity of public officers and employes rather than the statutory immunity of public bodies. It was decided after the enactment of the Oregon Tort Claims Act, but the act did not apply in that case because the cause of action had arisen before its effective date. We noted that our prior case law had established that public employes were not liable for negligently performing a discretionary function and identified two possible reasons for the doctrine of public employes' immunity:

'Judge Learned Hand stated that the doctrine of immunity for public employees was based upon a policy of freeing public employees from fear of retaliation for unpopular decisions so that they could function freely and thereby give unflinching discharge of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. den. 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). Prosser also believed that public employees would be unduly intimidated in the discharge of their duties if they could be sued for actions which later were determined to be negligent. Prosser, Law of Torts (3d ed.), 1014. Another reason advanced for the immunity of state employees is that without immunity, highly skilled employees would not accept public positions because the potential liability was not commensurate with the relatively low compensation that public bodies pay. Van Alstyne, Government Tort Liability: A Public Policy Prospectus, 10 U.C.L.A.L.Rev. 463, 474, 478 (1963).' 256 Or. at 493-94, 475 P.2d 78.

In our discussion of how to determine when a public employe is performing such a function we examined, in addition to cases involving the common-law immunity of public employes, the interpretations given by the federal and California courts to those jurisdictions' respective tort claims acts. Those statutes, like ours, provide immunity from liability for both the government and its employes arising out of the performance of a discretionary function. ² The term 'discretionary' in those statutes, as in ours, appears to have the same meaning when applied to governmental immunity as it does when applied to public employes' immunity.

When we decided Smith v. Cooper we were mindful that although the case was not governed by the Tort Claims Act our decision would be important to the future construction of the statute. See 256 Or. at 506, n.4, 475 P.2d 78, and opinion of Sloan, J., dissenting, at 513, 475 P.2d 78. Because the statutory standard is the same for both governmental and public employes' immunity, we examined the reasons for both kinds of immunity when considering the meaning of the term 'discretionary function.' With respect to governmental immunity we said:

'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.' 256 Or. at 506, 475 P.2d 78.

We examined the allegations of negligence in that case in light of that factor:

'These allegations charge conduct by the executive branch of the government which should not be reviewed by the judicial branch. The decisions that were made to do not to do these things appear to have been dependent upon considerations that a court or jury should not consider, particularly by hindsight, such as the funds available for the project, the amount of additional land necessary to make a more gradual curve, the cost of the land, the loss of the land for recreational or agricultural purposes, the amount and kind of traffic contemplated, the evaluation of traffic and safety, technical data, etc.' 256 Or. at 511, 475 P.2d 78.

Immediately following this explanation, we said:

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

This broad statement has resulted in a line of cases...