discretionary act exception in Oregon

1984Smith v. Cooper, 256 Or 485, 506 , 475 P2d 78 , 45 ALR3d 857 (1970). * * * “Application of the discretionary act exception in a manner consistent with its underlying doctrine requires examination of the nature of the government action upon which plaintiffs claim is based.

1984Smith v. Cooper, 256 Or 485, 506 , 475 P2d 78 , 45 ALR3d 857 (1970). * * * “Application of the discretionary act exception in a manner consistent with its underlying doctrine requires examination of the nature of the government action upon which plaintiffs claim is based.

1979Moody v Lane County, 36 Or App 231, 233 , 584 P2d 335 (1978).

1979Moody v Lane County, 36 Or App 231, 233 , 584 P2d 335 (1978).

1979Gallison v. City of Portland, 37 Or App 145 , 586 P2d 393 , rev den, 285 Or 319 (1978). "*** The perimeters of the discretionary function immunity afforded governmental agents and their principals are rather well settled in the area of road and street design and maintenance.

1979Gallison v. City of Portland, 37 Or App 145 , 586 P2d 393 , rev den, 285 Or 319 (1978). "*** The perimeters of the discretionary function immunity afforded governmental agents and their principals are rather well settled in the area of road and street design and maintenance.

1978In Comley v. State Bd. of Higher Ed., 35 Or App 465 , 582 P2d 443 (1978) we stated the underlying *234 rationale of the discretionary act exception as follows: "* * * To permit a jury or judge to pass upon the reasonableness of such governmental decisions in the context of a tort action would dilute the decision-making authority of the branch of government entrusted with the responsibility for that decision.

1978In Comley v. State Bd. of Higher Ed., 35 Or App 465 , 582 P2d 443 (1978) we stated the underlying *234 rationale of the discretionary act exception as follows: "* * * To permit a jury or judge to pass upon the reasonableness of such governmental decisions in the context of a tort action would dilute the decision-making authority of the branch of government entrusted with the responsibility for that decision.

1981We agree with defendants, however, that the court indicated its inclination to find the defense unmeritorious, and we will therefore consider the discretionary act immunity issue. 3 The issue in Furrer was not whether the action was time-barred, but whether the proof established what damage had been sustained within the two-year limitation period. 4 Defendants do not argue that plaintiff failed to introduce sufficient evidence of damages occurring within 180 days of his notice and two years of the commencement of the action to create a jury question. 5 Cf. Adams v. Oregon State Police, 289 Or

1981We agree with defendants, however, that the court indicated its inclination to find the defense unmeritorious, and we will therefore consider the discretionary act immunity issue. 3 The issue in Furrer was not whether the action was time-barred, but whether the proof established what damage had been sustained within the two-year limitation period. 4 Defendants do not argue that plaintiff failed to introduce sufficient evidence of damages occurring within 180 days of his notice and two years of the commencement of the action to create a jury question. 5 Cf. Adams v. Oregon State Police, 289 Or

1980App. 711, 717 , 560 P.2d 686, 689 , rev. den. (1977), we characterized the defendant's duty to maintain existing traffic direction signs as a ministerial function not within the discretionary act exception and stated that "[b]y erecting the signs defendant has acknowledged that a dangerous condition exists and assumed a responsibility to warn the public." Here there was no showing that the district erected the marker cable system, either originally or seasonally.

1980Dist., 28 Or App 711, 717 , 560 P2d 686 , rev den (1977), we characterized the defendant’s duty to maintain existing traffic direction signs as a ministerial function not within the discretionary act exception and stated that "[b]y erecting the signs defendant has acknowledged that a dangerous condition exists and assumed a responsibility to warn the public.” Here there was no showing that the district erected the marker cable system, either originally or seasonally.

1979McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978); Moody v. Lane County, supra at 234.

1979McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978); Moody v. Lane County, supra at 234.

1979ORS 30.265(3)(c), the discretionary act exception to governmental tort liability, provides in part: *415 "Every public body and its officers, employes, 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.” In his specially concurring opinion to the decision in the Court of Appeals, Chief Judge Schwab concluded that the City was immune under this provision because "the decision by the

1978This distinction is well illustrated by Baker v. State Bd. of Higher Ed., 20 Or App 277 , 531 P2d 716 rev den (1975), in which we held that the state was not liable *477 under the discretionary act exception of the Tort Claims Act for having decided to hold a "Powwow” at an allegedly unsafe county fairground, but that the county would be liable for injuries arising from failure to maintain the fairgrounds in a safe condition.

1978This distinction is well illustrated by Baker v. State Bd. of Higher Ed., 20 Or App 277 , 531 P2d 716 rev den (1975), in which we held that the state was not liable *477 under the discretionary act exception of the Tort Claims Act for having decided to hold a "Powwow” at an allegedly unsafe county fairground, but that the county would be liable for injuries arising from failure to maintain the fairgrounds in a safe condition.

1978Reversed and remanded. 1 ORS 30.265(3)(c) provides: "Every public body and its officers, employes 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.” 2 See also James & Yost, Inc. v. Board of Higher Edu., 216 Or 598, 601 , 340 P2d 577 (1959), which, although containing language seemingly to the contrary (page 602), holds that unless raised at trial and preserved on appeal, immunity

1978Reversed and remanded. 1 ORS 30.265(3)(c) provides: "Every public body and its officers, employes 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.” 2 See also James & Yost, Inc. v. Board of Higher Edu., 216 Or 598, 601 , 340 P2d 577 (1959), which, although containing language seemingly to the contrary (page 602), holds that unless raised at trial and preserved on appeal, immunity