Timberlake v. Washington County

• Decision Date: 27 May 2009
• Docket Number: C063473CV.,A136851.
• Court: Oregon Court of Appeals
• Parties: Patricia L. TIMBERLAKE, as personal representative for the ESTATE OF Matthew R. LYON, deceased, Plaintiff-Appellant, v. WASHINGTON COUNTY, Defendant-Respondent.

209 P.3d 398

228 Or. App. 607

Patricia L. TIMBERLAKE, as personal representative for the ESTATE OF Matthew R. LYON, deceased, Plaintiff-Appellant, v. WASHINGTON COUNTY, Defendant-Respondent.

C063473CV.

A136851.

Court of Appeals of Oregon.

Argued and Submitted November 18, 2008.

Decided May 27, 2009.

Linda K. Eyerman, Portland, argued the cause for appellant. With her on the briefs was Gaylord Eyerman Bradley, P.C.

William G. Blair, Senior Assistant County Counsel, argued the cause for respondent. With him on the brief was Dan R. Olsen, County Counsel, Office of County Counsel.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

This is a wrongful death action arising out of a vehicle collision on a public road over which defendant Washington County had jurisdiction and maintenance authority. Plaintiff, the personal representative of the individual killed in the collision, alleges that the county was negligent in failing to remove foliage that had grown at the site of the collision and that blocked visibility from the vehicle with which the decedent collided. The county moved for summary judgment on discretionary immunity grounds, based on the fact that its failure to maintain the collision site was the product of a budget-driven policy decision about the allocation of its limited resources available for road maintenance. The trial court granted the motion.

Plaintiff appeals, arguing that, as a matter of law, discretionary immunity does not apply to a county's obligation to maintain its roads and that, in any event, a local government cannot avoid liability merely because of limited financial resources. We conclude that, under settled law, discretionary immunity may apply to a local government's obligation to maintain roads and that limited fiscal resources available for road maintenance may justify a policy decision about how those limited resources are spent. We conclude that the trial court did not err in granting the county's summary judgment motion.

The relevant facts are not in dispute. Washington County is responsible for the maintenance of approximately 1,279 miles of public roads. Funding for road maintenance is limited. It derives primarily from two sources, both outside the county's control—a county road fund based on fuel taxes and weight/mile fees distributed by the State of Oregon and property tax revenue from the Urban Road Maintenance District, which is subject to a constitutional cap.

In the face of limited funding for road maintenance, the county's Board of Commissioners passed a resolution adopting a road maintenance policy on June 22, 2004, that dictates how those limited resources would be allocated during the following year. That road maintenance policy provides that approximately two-thirds of the county's road maintenance funds are allocated to scheduled, routine maintenance based on a priority matrix set by the functional classification of roads, and the remaining third is allocated to responding to complaints, extreme weather (snow, ice, floods, and the like), and other unplanned emergencies requiring service.

On June 3, 2005, Matthew Lyon rode his motorcycle southbound on SW Scholls Ferry Road in Washington County. As he approached the intersection with SW Raleighwood Way, a Ford Escort pulled out from Raleighwood onto Scholls Ferry, directly into the path of Lyon's motorcycle. The vehicles collided. Lyon died from injuries sustained in the collision.

At the time of the accident, vegetation growing near the intersection and along the shoulder of Scholls Ferry was overgrown, interfering with visibility for drivers pulling out from Raleighwood onto Scholls Ferry. Because of that vegetation, the driver of the Ford Escort did not see Lyon on his motorcycle and was not aware that she was driving directly into his path. During the previous year, the county had not received any reports of vision hazards at the intersection, and it was not scheduled for maintenance during that period under the county's road maintenance policy (except for some herbicide spraying scheduled for later that year). Nor was there any evidence that anyone at the county involved with road maintenance had actual knowledge of the existence of a visibility hazard at the intersection.

Plaintiff initiated this action against the county for negligence. Plaintiff alleged that the county was negligent in failing to remove or trim back the foliage at the intersection where Lyon was killed, in failing to maintain that foliage to allow for ordinary growth without obscuring or obstructing motorist visibility, in failing to inspect the intersection for visibility hazards, and in failing to discover the visibility hazard that did exist and that contributed to Lyon's death.

The county asserted an affirmative defense of discretionary immunity. The county alleged that it had adopted and implemented a policy not to inspect county roads for vegetation hazards and, instead, to trim or remove vegetation according to a preestablished maintenance schedule and in response to citizen complaints and notification of particular hazards and emergencies.

The county moved for summary judgment on its discretionary immunity defense. It supported its motion with affidavits attesting to the foregoing facts about its road maintenance policy. In response, plaintiff did not contest the existence of the policy, its validity, or the adequacy of its implementation. In particular, plaintiff did not dispute that the county adopted and implemented its policy, developed by upper-level management through the exercise of judgment in the allocation of limited funds and that, in failing to inspect, discover, or remove the foliage at the intersection of Scholls Ferry and Raleighwood, the county was carrying out its road maintenance policy. Plaintiff's response was more narrowly one of law, viz., that, as a matter of law, discretionary immunity does not apply to decisions that are a product of limited resources. In plaintiff's words: "Counties may not avoid liability for negligence by putting costs over the safety of the traveling public." Based on Donaca v. Curry Co., 303 Or. 30, 36-38, 734 P.2d 1339 (1987), plaintiff argued that "discretionary immunity does not apply where a defendant has a duty imposed by law." According to plaintiff, the county has a duty imposed by law to keep its roads safe, which may not be avoided simply because funds are limited. The trial court granted the county's motion and entered a general judgment in favor of the county.

On appeal, plaintiff essentially reprises the same contentions that she advanced to the trial court. She contends that road maintenance "is a ministerial function or duty of government entities in Oregon, and all decisions pertaining thereto must be made in the exercise of reasonable care to prevent foreseeable harm." Discretionary immunity, she contends, simply does not apply. Further, she argues, "under the Oregon Tort Claims Act, public bodies are not immune from liability because their financial resources are limited." Plaintiff does not contend that there exist any genuine issues of material fact. Her contentions on appeal are solely that, on the facts in the record, the county is not entitled to judgment on its discretionary immunity defense as a matter of law.

The county responds that plaintiff's categorical legal contentions have been addressed and rejected by this court on a number of occasions, in particular, in Sager v. City of Portland, 68 Or.App. 808, 684 P.2d 600, rev. den., 298 Or. 37, 688 P.2d 845 (1984); Ramsey v. City of Salem, 76 Or.App. 29, 707 P.2d 1295 (1985); and Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or.App. 416, 39 P.3d 931, rev. den., 335 Or. 114, 61 P.3d 256 (2002). Plaintiff replies that those cases were wrongly decided and should be overruled.

After this case was submitted, the Oregon Supreme Court decided Hughes v. Wilson, 345 Or. 491, 199 P.3d 305 (2008), in which the court reversed the dismissal, on grounds of discretionary immunity, of a negligence action against a county on facts somewhat similar to those in this case. In supplemental briefing, plaintiff contends that this case is controlled by the Supreme Court's decision in Hughes. The county contends that the court's decision in that case is completely distinguishable.

As we have noted, there appear to be no genuine issues of material fact. The sole question, consequently, is whether the county is entitled to judgment as a matter of law. ORCP 47 C; Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001).

ORS 30.265(3)(c) provides, in part:

"Every public body and its officers, employees 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."

ORS 30.265(3)(c) confers immunity on the county, as a public body, from liability for the negligent performance or nonperformance of a "discretionary function or duty."

Case law has established the guidelines for determining what functions or duties are discretionary. Governmental defendants are protected from liability for decisions that require a policy judgment by a person or body with governmental discretion. Little v. Wimmer, 303 Or. 580, 588, 739 P.2d 564 (1987); see also Vokoun v. City of Lake Oswego, 335 Or. 19, 31, 56 P.3d 396 (2002). In McBride v. Magnuson, 282 Or. 433, 436-37, 578 P.2d 1259 (1978), the court described the type of decision that is "discretionary" for purposes of ORS 30.265(3):

"[N]ot every exercise of judgment and choice is the exercise of discretion. It depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion, as this court has noted in other contexts, involves `room for policy judgment,' * * * or the...