 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Garrison v. Deshutes County6/21/2002
uestion before the court, therefore, is whether the fact that the refuse station is not privately owned and operated alters the analysis. The answer to that question lies in the applicability of the OTCA, ORS 30.260 et seq., which provides that public bodies generally are liable for their torts, except in certain limited circumstances.
In this case, the county has asserted throughout that one of those circumstances pertains here. It contends that it is entitled to "discretionary function" immunity under ORS 30.265(3)(c), which we again set out here for the convenience of the reader. That subsection 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."
By its terms, 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." The OTCA does not define that phrase. However, the statute's meaning and scope have been fleshed out through years of litigation. For example, this court has discussed the meaning of the term "discretion" in ORS 30.265(3)(c) on several occasions. In McBride v. Magnuson, 282 Or 433, 437, 578 P2d 1259 (1978), the court stated that conduct is "discretionary" in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government:
" nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has 'discretion' to the extent that he has been delegated responsibility for the latter kind of value judgment."
This court also has stated that ORS 30.265(3)(c) extends immunity "to decisions involving the making of policy, but not to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action." Lowrimore v. Dimmitt, 310 Or 291, 296, 797 P2d 1027 (1990).
Notwithstanding the foregoing, the court has stated that the "discretionary immunity" doctrine does not immunize a decision not to exercise care at all, if action of some kind is required:
"A public body that owes a particular duty of care * * * has wide policy discretion in choosing the means by which to carry out that duty. * * * The range of permissible choices does not, however, include the choice of not exercising care." Mosley v. Portland School Dist. No. 1J, 315 Or 85, 92, 843 P2d 415 (1992) (citations omitted).
In other words, the decision whether to protect the public by taking preventive measures, or by warning of a danger, if legally required, is not discretionary; however, the government's choice of means for fulfilling that requirement may be discretionary. See also Hawkins v. City of La Grande, 315 Or 57, 65, 843 P2d 400 (1992); Little v. Wimmer, 303 Or 580, 588-89, 739 P2d 564 (1987); Miller v. Grants Pass Irrigation, 297 Or 312, 320, 686 P2d 324 (1984) (all to same effect).
Moreover, only those decisions that are made by officials in a position of authority are immune from liability. As this court stated in Mosley, " ormally, a choice within the permissible range, in order to qualify for i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|