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Schlesinger v. City of Portland7/13/2005
n v. Union High School Dist No. 2, 130 Or 461, 471, 280 P 664 (1929). Plaintiff's complaint alleges only that she was injured by the negligence of the city. Plaintiff's complaint simply does not raise the issue that she claims to raise: that, by replacing a cause of action against public employees for torts committed in the scope of their employment with a cause of action against a public body that is immune from liability under the recreational use statute, the OTCA prevents her from pursuing a remedy she could have pursued against those employees at common law in violation of Article I, section 10.
Put another way, the remedy that plaintiff argues that she should be able to pursue is a remedy against individual city employees. Were we to agree with her, the proper result would be to allow her to pursue a claim against those employees. However, because plaintiff has not alleged that any city employee acted negligently, there is no existing claim that plaintiff could pursue. " nder Article III, section 1, and Article VII (Amended), section 1, of the Oregon Constitution, the judicial power of the state vested in courts is limited to actual controversies between parties." First Commerce of America v. Nimbus Center Assoc., 329 Or 199, 206, 986 P2d 556 (1999) (citing Barcik v. Kubiaczyk, 321 Or 174, 188-89, 895 P2d 765 (1995)). Similarly, a "'controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests.'" Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004) (quoting Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982)). Once it is determined that the city is immune under the recreational use statute, there is no actual controversy between the only two parties to this case: plaintiff and the city. Any possible controversy between plaintiff and the allegedly negligent individual city employees is not presented by this case.
The trial court did not err in dismissing plaintiff's complaint.
Affirmed.
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