S055326, Opinion — Hughes v. Wilson

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted June 3, decision of Court of Appeals reversed; judgment of
circuit court reversed and case remanded to circuit court for further proceedings
December 18, 2008

Gregory A. HUGHES
and Laurie Ann Hughes,
Petitioners on Review,
v.
Keith L. WILSON
and Wasco County Public Works Department,
Defendants,
and
WASCO COUNTY,
Respondent on Review.
(CC 0500174CC; CA A132266; SC S055326)
199 P3d 305

<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->
<!-- PageFooter="CJS, Motor Vehicles § 187." -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 491 (2008)" -->

En Banc

On review from the Court of Appeals .*

Dean Heiling, Heiling Dwyer & Associates, Portland,
argued the cause and filed the brief for petitioners on review.
With him on the brief was Don S. Willner, Portland.

Stan LeGore, Miller & Wagner, LLP, Portland, argued the
cause and filed the brief for respondent on review.

W. Eugene Hallman, Hallman & Dretke, Pendleton, filed
a brief on behalf of amicus curiae Oregon Trial Lawyers
Association.

Linda Wicks, Assistant Attorney General, Salem, filed a
brief on behalf of amicus curiae State of Oregon. With her on
the brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

WALTERS, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed and the case is remanded
to the circuit court for further proceedings.

<!-- PageFooter="* Appeal from Wasco County Circuit Court, John V. Kelly, Judge. 213 Or App 588, 162 P3d 1095 (2007)." -->
<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->

# WALTERS, J.

In this case, we consider a county's claim of immu-
nity from civil liability under ORS 30.265(3)(c), Oregon's dis-
cretionary immunity statute.

Plaintiff Hughes was driving his motorcycle on
Cherry Heights Road, a county road in Wasco County, when
defendant Wilson drove out of a private driveway and the two
vehicles collided. Plaintiff1 brought a personal injury action
against Wilson, alleging that Wilson was at fault in entering
the road from a point where visibility of approaching traffic
was obstructed,2 and against Wasco County (county), alleg-
ing that a bush on the unpaved portion of the county road
obscured motorists' vision, causing plaintiff's injuries.

In the trial court, the county moved for summary
judgment under ORS 30.265(3), which provides public bodies
with immunity from liability arising out of certain kinds of
discretionary decisions. The county proffered evidence that it
had delegated authority to make policy decisions regarding
maintenance of county roads to its Director of Public Works,
Boldt. Boldt submitted an affidavit stating that he had
adopted a policy "for brush cutting"; that that policy was
"established and in force prior to the motor vehicle accident
which forms the basis for the present lawsuit"; and that it
was "formulated through a balancing of the needs of the
County, the available resources, and public safety." The
county argued that the uncontested evidence established
that Boldt had made a policy-level choice not to check or
maintain vision clearance for private driveways unless pri-
vate landowners gave notice of an impairment to vision. The
county asserted that that choice was a discretionary function
and, therefore, that the county was immune from liability
under ORS 30.265(3)(c).

Plaintiff opposed the county's motion and character-
ized the evidence and the law differently. Plaintiff submitted

1 Hughes's wife is also a plaintiff in the action, bringing a claim for loss of con-
sortium. Her claims do not present separate issues; therefore, for simplicity, we
will discuss the case as one brought by Hughes alone.

2 Plaintiff also alleged that Wilson was at fault in failing to keep a proper look-
out, failing to keep his vehicle under reasonable control, and failing to yield the
right-of-way to plaintiff.

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 491 (2008)" -->

deposition excerpts stating that the county's policy had not
been set out in writing and that the county had not commu-
nicated it to county officials, county employees, or private
landowners. Therefore, plaintiff argued, that policy should
not be given effect. Further, plaintiff contended, the county's
policy amounted to a decision not to fulfill the county's duties
to inspect and maintain its roads and a decision not to exer-
cise care is not entitled to immunity under ORS 30.265(3)(c).

The trial court granted the county's motion and
entered a general judgment dismissing plaintiff's complaint.3
The Court of Appeals affirmed the decision of the trial court
without opinion. Hughes v. Wilson, 213 Or App 588, 162 P3d
1095 (2007). We allowed plaintiff's petition for review and
now reverse the decision of the Court of Appeals and remand
the case to the trial court for further proceedings.

We begin our analysis with the text of ORS 30.265,
which provides, in part:

"(1) Subject to the limitations of ORS 30.260 to 30.300,
every public body is subject to action or suit for its torts and
those of its officers, employees and agents acting within the
scope of their employment or duties, whether arising out of
a governmental or proprietary function or while operating a
motor vehicle in a ridesharing arrangement authorized
under ORS 276.598.

"(3) 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."

Tensions inherent in the text of that statute have
defied easy resolution. Section (1) of ORS 30.265 makes pub-
lic bodies liable for their torts. Paragraph (3)(c) grants those

8 The trial court granted the county's motion for summary judgment and
entered a limited judgment in favor of the county. Plaintiff and Wilson stipulated
to entry of a limited judgment in favor of Wilson, and the trial court then entered a
general judgment dismissing plaintiff's complaint.

<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->

entities immunity from claims based upon a "discretionary
function or duty." In fact, however, whenever a governmental
employee determines facts and acts accordingly, that
employee makes a number of choices and thereby exercises
discretion. Yet, the law often imposes limits on those choices
and recognizes that acts in violation of those limits may give
rise to liability.4

Recognizing those tensions, this court has explained
that the legislature used the words "discretionary function or
duty" to exempt governmental entities from liability only for
"certain types of decisions, namely, those that require super-
visors or policy makers to assess costs and benefits, and to
make a choice among competing goals and priorities."
Vokoun v. City of Lake Oswego, 335 Or 19, 31, 56 P3d 396
(2002) (citing McBride v. Magnuson, 282 Or 433, 437, 578
P2d 1259 (1978)). Accord Mosley v. Portland School Dist. No.
1J, 315 Or 85, 89, 843 P2d 415 (1992). This court also has
explained that, if the law requires a government to exercise
due care, then ORS 30.265 does not immunize its decision not
to exercise care at all. When a public body owes a duty of care,
that body has discretion in choosing the means by which it
carries out that duty. Little v. Wimmer, 303 Or 580, 589, 739
P2d 564 (1987); Miller v. Grants Pass Irr. Dist., 297 Or 312,
320, 686 P2d 324 (1984). But "[t]he range of permissible
choices does not * * * include the choice of not exercising
care." Mosley, 315 Or at 92.

On review to this court, the county bases its defense
of discretionary immunity on what it characterizes as a
policy-level choice of means to fulfill its road maintenance
duties. To analyze that defense, we first examine the nature
of the county's road maintenance duties.

4 The pairing of the terms "discretionary" and "duty" is particularly paradoxi-
cal. Whereas choice is intrinsic to discretion, duty ordinarily implies a legally dic-
tated course of action. A former member of this court expressed his befuddlement
as to how a duty can ever be discretionary. See Miller v. Grants Pass Irr. Dist., 297
Or 312, 324, 686 P2d 332 (1984) (Lent, J., concurring):

"[A] discretionary function is one concerning which the governmental agency
involved has power to make a choice among valid alternatives, but if there is a
duty imposed by law there is no choice but to obey. If there is no duty, to which
adherence is required, then the agency is concerned with a function rather
than a duty. I really don't know what a discretionary duty looks like."

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 491 (2008)" -->

The common law imposes a general, nondiscretion-
ary duty on landowners to make their property reasonably
safe for their invitees. Accordingly, public landowners must
make public property reasonably safe for members of the
public who use the property in a manner that is consistent
with its public purpose. See Woolston v. Wells, 297 Or 548,
557-58, 687 P2d 144 (1984) (possessor of land has a duty to
use reasonable care to make land safe for invitees); Taylor v.
Baker, 279 Or 139, 146, 566 P2d 884 (1977) (invitees include
members of the public on land for purpose for which land is
open to public). As this court has stated, the duty to make
property reasonably safe includes a duty to inspect the prop-
erty for conditions that create an unreasonable risk of harm:

"In general, it is the duty of the possessor of land to make
the premises reasonably safe for the invitee's visit. The pos-
sessor must exercise the standard of care above stated to
discover conditions of the premises that create an unrea-
sonable risk of harm to the invitee. The possessor must
exercise that standard of care either to eliminate the con-
dition creating that risk or to warn any foreseeable invitee
of the risk so as to enable the invitee to avoid the harm."

Woolston, 297 Or at 557-58.

The legislature has assigned county road mainte-
nance responsibilities to county governing bodies and road
officials, ORS 368.001,5 and, in doing so, has evidenced an
intent that accords with the common law. By assigning
local governments the responsibility to carry out road-
maintenance functions, the legislature intends that those
governments will fulfill their common-law responsibilities
and make travel on their roads reasonably safe for the gen-
eral public. See Little, 303 Or at 589 (stating principle based
on state highway statutes). A county's responsibility for road

5 ORS 368.046(2) provides that a county road official shall work under the
direction of the county governing body and shall:

"(a) Assist the county governing body in preparing specifications for
county work to be done on any road within the county;

"(b) Superintend work done by the county upon roads within the county,
whether the work is done under contract or otherwise;

"(c) Recommend to the county governing body methods to be adopted for
the construction, improvement, repair and maintenance of roads; and

"(d) Perform other duties assigned by the county governing body."

<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->

maintenance extends not only to the paved portion of county
roads, but also to county rights-of-way in their entirety. ORS
368.001(1) defines "county road" as "a public road under the
jurisdiction of a county that has been designated as a county
road" (emphasis added), and ORS 368.001(6) defines a "road"
as "the entire right of way of any public or private way that
provides ingress to or egress from property by means of vehi-
cles or other means or that provides travel between places by
means of vehicles." (Emphasis added.)

In this case, therefore, the county had a general
common-law duty to inspect its roads, including the unpaved
portions of those rights-of-way, and to maintain those roads,
in their entirety, in a reasonably safe condition for the benefit
of the traveling public.6

The next step in our analysis is to examine the
policy-level decision which the county asserts to render it
immune from liability for plaintiff's claim.7 Plaintiff, in his
complaint, alleged that the county was negligent in its exe-
cution of its road-maintenance duties because it had allowed
a bush that obscured the vision of motorists to grow on the
unpaved portion of Cherry Heights Road, had failed to
remove the bush, and had failed to warn motorists of the
obstructed vision. As an affirmative defense to plaintiff's
claim, the county alleged that its "program for the removal of
shrubbery from and adjacent to the roadway system in Wasco
County and the execution thereof" entitled it to discretionary

6 The county does not disavow those common-law duties. In fact, the policy on
which the county relies for its claim of immunity recognizes and purports to
address the county's obligation to inspect and maintain its roads. Boldt stated in
his deposition that part of his department's responsibility was to keep brush off
county roads when it could be a safety hazard, and in his affidavit he stated that
"[r]oad projects that must be provided include maintenance of the County roads."
Boldt also stated in his affidavit that maintenance of county roads includes "main-
taining and replacing signs along all 700 miles of County roads, and maintaining
drainage ditches and culverts along all County roads for the safety of all who use
the County roads," and that "Ip]art of maintaining the shoulders includes cutting
brush that impairs visibility for vehicles that are driving on the County roads."
(Emphasis added.) In addition, the county also submitted Boldt's job description,
which requires that Boldt "cause[ ] to be * * * kept in good repair all County roads,"
and which provides that Boldt's duties may entail "cleaning road shoulders."
(Emphasis added.)

7 Plaintiff does not contend that Boldt lacked the requisite authority to set
county policy. Thus, there is no issue in that regard.

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 491 (2008)" -->

immunity. In support of its motion for summary judgment,
the county submitted the Boldt affidavit, which described the
policies and general practices that the county had estab-
lished as follows:

"a. Vision clearance shall be maintained for all vehi-
cles driving on County roads such that drivers in the actual
driving lanes on a County roadway shall have an unob-
structed view of both lanes of traffic on the County roads;

"b. Every County road shall be inspected at least once
a year for vision clearance and any brush shall be removed
that impairs the vision of both lanes of traffic on the County
road for any vehicle in either lane of the County road; and,

"c. Because the County does not have sufficient time to
inspect vision clearance for private driveways which enter
upon County roads, the County relies on private landown-
ers to remove the brush or to notify the County that the
vision from a private driveway is impaired by brush, and
the County shall clear that brush as necessary."

Boldt also averred that the county had acted consistently
with that policy in not removing the bush in question. Thus,
the "discretionary function or duty" on which the county
bases its claim of immunity is the county's establishment of-
and the county's action or nonaction in accordance with-
those policies and practices.8

The county's policy provided that the county would
inspect its roads and remove brush in two circumstances.
Paragraph "b" provided that the county would inspect its
roads at least once a year for vision clearance and would
remove brush that impaired the "vision of both lanes of traffic
on the County road." Paragraph "c" provided that the county
would not inspect vision clearance for private driveways, but
that, when private landowners notified the county that the
vision from a private driveway was impaired by brush, the
county would clear that brush.

8 For simplicity, we discuss the county's discretionary immunity defense as a
defense based on the county's "policy." But we do not imply that, to be entitled to
immunity, a government's policy-level decision must be formally adopted. See, e.g.,
Garrison v. Deschutes County, 334 Or 264, 268-69, 48 P3d 807 (2002) (immunity
based on decision-makers' "debate"); Mosley, 315 Or at 92 (immunity based on prin-
cipal's decision).

<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->

In this case, the bush that allegedly obstructed the
view of motorists did not satisfy either of the two removal cri-
teria that the policy had specified. The bush was located on
the unpaved portion of the road and did not extend into, or
obscure motorists' vision of, the lanes of traffic; therefore, it
was not subject to removal under paragraph "b." No land-
owner had notified the county that the bush posed an obsta-
cle to vision from the driveway; therefore, it was not subject
to removal under paragraph "c."

In its brief, the county argues that its policy was that
it "would not check or maintain vision clearance except as set
forth in its policy." (Emphases added.) Although Boldt did not
describe the county policy in those terms in his affidavit, he
did set forth the instances in which the county would clear
brush from the unpaved portions of its roads, and he did state
that in not removing the bush, the county had acted in con-
formance with that policy. Therefore, by negative implica-
tion, the county's policy provided that the county would not
clear brush on the unpaved portions of its roads except in the
two circumstances specified in its policy. As applied to the
facts of this case, the policy provided that the county would
not remove the bush located on the unpaved portion of its
roads, unless notified by a private landowner to do so.

Having described the road-maintenance duties owed
by the county, and the policy upon which it rests its claim of
discretionary immunity, we next determine whether the
county established that its policy was a choice within the
"range of permissible choices" of means to carry out its duties,
and not a "choice of not exercising care." Mosley, 315 Or at 92.
See Vokoun, 335 Or at 31 (county has burden to establish dis-
cretionary immunity). Because this issue arises on the
county's motion for summary judgment,9 the county must
demonstrate that the record shows that "there is no genuine
issue as to any material fact" and that it is "entitled to a judg-
ment as a matter of law." ORCP 47 C. As that rule further
provides:

9 Plaintiff did not move for summary judgment, and therefore we do not con-
sider the question of whether plaintiff would be entitled to prevail on the issue of
discretionary immunity as a matter of law.

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 491 (2008)" -->

"No genuine issue as to a material fact exists if, based on
the record before the court viewed in a manner most favor-
able to the adverse party, no objectively reasonable juror
could return a verdict for the adverse party on the matter
that is the subject of the motion for summary judgment."

In this case, because plaintiff is the adverse party, we view
the record in the manner most favorable to plaintiff to deter-
mine whether an objectively reasonable juror could return a
verdict for plaintiff on the defense of discretionary immunity.

The record discloses that, although no landowner
had informed the county that the offending bush posed a haz-
ard, Boldt personally had observed the bush and was familiar
with its location.1º However, the county had not received a
request from a landowner to remove the bush and, therefore,
pursuant to its policy, the county did not remove it. Signifi-
cantly, the record also discloses that the county had not
informed landowners that it was relying on them to give the
notice that was a necessary prerequisite to county action.

The county based its discretionary immunity defense
on a decision to rely on landowners, over whom it had no
right of control, to perform a key function in carrying out its
road maintenance duties.11 However, on summary judgment,
the county did not demonstrate that it had put its policy into
effect by communicating it to those landowners. Merely
weighing costs and benefits and making a decision, even if
that decision might qualify as a permissible discretionary
decision, is not sufficient to entitle a government to immu-
nity. The government must also demonstrate that it took the
action necessary to effectuate that decision. So, for example,
if a government made a policy-level choice about which road
signs to install, its decision could be described as discretion-
ary, but that decision alone would not entitle the government

10 In his affidavit, Boldt stated that he was very familiar with the scene of the
accident, passed by its exact location at least twice a week, and knew the location
of the bush by personal observation.

11 This court previously has held that a city was not entitled to summary judg-
ment on its claim of discretionary immunity when a city enacted an ordinance
requiring that abutting landowners remove foliage obscuring stop signs. Pritchard
v. City of Portland, 310 Or 235, 241, 796 P2d 1184 (1990) (summary judgment inap-
propriate when plaintiff is suing city for city's failure to cut foliage, not for its deci-
sion to require landowners to do so).

<!-- PageBreak -->

<!-- PageHeader="Hughes v. Wilson" -->

to immunity: The government would also have to show that it
had installed the signs that it had selected. Even if the
county's decision to have others act for it could constitute a
permissible means of carrying out its duties-an issue that
we need not and do not decide-the county is not entitled to
immunity on this record because it did not demonstrate that
it had implemented its policy. In particular, the county did
not establish that it had informed landowners that it was
relying on them to signal the need for brush removal. We hold
that the trial court erred in granting the county's motion for
summary judgment.

In stating our holding, we emphasize that we
address only the county's affirmative defense of discretionary
immunity. The issue presented does not require us to decide,
and we do not decide, whether the county can be held liable to
this plaintiff on his negligence claim. Issues remain as to
whether a reasonable factfinder could find that the county
acted unreasonably in failing to cut the bush in question. On
remand, the county is entitled to argue that, given its fiscal
constraints and the foreseeable risk of harm, it cannot be
subject to liability for negligence. See Donaca v. Curry
County, 303 Or 30, 36-38, 734 P2d 1339 (1987) (county liabil-
ity for failing to maintain right-of-way depends on whether
county's action was reasonable in light of risk, including feas-
ibility and cost of avoiding risk). Today we decide only that
the trial court erred in granting summary judgment in favor
of the county on its discretionary immunity defense.12

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed and the case is
remanded to the circuit court for further proceedings.

12 We also do not reach plaintiff's contention that the trial court erred in grant-
ing summary judgment because there was a question of fact as to whether Boldt
actually had adopted the county policy that he recited.