268 P.3d 789
Or. Ct. App.2011Background
- Erin Smith injured at Bend pool splash pad when she tripped on a raised fountain cover while trying to prevent a child from entering the pool.
- Plaintiff asserted four negligence specifications: two about fountain design/placement and two about failure to warn.
- Trial court granted summary judgment for discretionary immunity on design/placement and for lack of causation on warnings; plaintiff appealed.
- Issue was whether fountain-cover design/placement decisions were discretionary under ORS 30.265(3)(c) and who had authority to make those decisions.
- Evidence showed Mercer, the project manager, appeared to make the fountain decisions, with no written board directive; delegation was contested.
- Court reversed in part on the discretionary-immunity ruling, holding genuine issues of material fact remained about whether the decisions embodied a policy judgment and were delegated to Mercer; otherwise, the dismissal on warning causation was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fountain-cover design/placement decisions were discretionary immunity under ORS 30.265(3)(c). | Smith argues the decisions were not policy-level and thus not immunized. | Bend asserts the board made policy-level design/placement decisions deserving immunity. | Disputed facts remain; immunity not established as a matter of law; reversed in part. |
| Who had authority to make the fountain decisions (board vs. Mercer/delegation). | Authority included Mercer; board directive not required. | Decisions were board-made policy choices. | Evidence raises delegation to Mercer; dispositive question unsettled; remanded for fact-finding. |
| Did plaintiff’s awareness of dangers preclude causation for failure to warn? | Warning could have prevented injury. | Plaintiff was fully aware of danger; no causation evidence. | Court upheld no-causation finding; affirmance on that aspect. |
Key Cases Cited
- McBride v. Magnuson, 282 Or. 433 (1978) (discretion involves policy judgments and delegated responsibility)
- Miller v. Grants Pass Irrigation Dist., 297 Or. 312 (1984) (discretionary immunity covers policy choices among public goals)
- Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or.App. 416 (2002) (three criteria for discretionary immunity; policy-level, not routine)
- Vokoun v. City of Lake Oswego, 335 Or. 19 (2002) (maintenance decisions are not discretionary immunity; focus on delegation and day-to-day actions)
- John v. City of Gresham, 214 Or.App. 305 (2007) (design decisions may be discretionary; not all aspects of a project are immune)
- Day v. City of Canby, 143 Or.App. 341 (1996) (parade-safety decisions are classic policy choices entitled to discretion)