Argued and submitted on May 29, 2012.
Multnomah County Circuit Court,
No. 091115351 Charles E. Corrigan, Judge pro tempore.
Willard E. Merkel argued the cause for appellant. With him on the briefs was Merkel & Associates.
Stephan P. Rickles argued the cause for respondent. With him on the brief were Martin W. Jaqua and The Rickles Law Firm, PC.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
In this action under the Oregon Residential Landlord and Tenant Act (ORLTA), ORS chapter 90, plaintiff appeals from a judgment for defendant after the trial court granted defendant's motion for summary judgment on the ground that defendant was entitled to discretionary immunity. On appeal, plaintiff argues that the trial court erred in granting defendant's motion for summary judgment. For the reasons that follow, we affirm.
We state the facts in the light most favorable to the nonmoving party--i.e., plaintiff. See ORCP 47 C. Plaintiff rented an apartment in a public housing complex operated by defendant Housing Authority of Portland (HAP). In July 2009, as plaintiff was walking to her apartment through a common hallway of her building, she slipped and fell in a puddle of water that had leaked from a broken washing machine in a nearby laundry room, resulting in injuries to her foot and ankle. She brought this action against HAP, seeking damages under the habitability provisions of the ORLTA, ORS 90.320.
Although plaintiff's amended complaint also alleged a violation of the rental agreement, it did not attach or refer to specific provisions of the rental agreement.
The parties filed cross-motions for summary judgment on the question of liability. The trial court determined that HAP, as a public body, had discretionary immunity under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300; ORS 30.265(6)(c) (every public body is immune from liability for "[a]ny 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"),  and was therefore immune from liability for plaintiff's injury. On that ground, the court granted HAP's motion for summary judgment, denied plaintiff's motion as moot, and dismissed the claim.
On appeal, plaintiff assigns error to the granting of HAP's motion for summary judgment, asserting that a discretionary immunity defense under the OTCA is not available to public bodies for claims brought under the ORLTA. Plaintiff raises two arguments in support of her assignment of error. First, she argues that HAP's obligation under the ORLTA to maintain its washing machines in good repair at all times was a "ministerial" function and not one subject to discretionary immunity under the OTCA.
Plaintiff did not raise that argument to the trial court. We therefore decline to consider plaintiff's contention for the first time on appeal. See State v. Timmermann, 220 Or.App. 458, 464, 187 P.3d 744 (2008) (recognizing the underlying purposes of preservation to ensure fairness and efficiency).
Second, plaintiff argues that the trial court erred in applying the OTCA to her claim because a claim brought under the ORLTA arises from a rental agreement and, therefore, is not a tort claim for the purposes of ORS 30.260(8). HAP asserts that plaintiff did not preserve that claim of error either, but we disagree. The trial court noted at the summary judgment hearing that, in response to HAP's assertion of discretionary immunity, plaintiff asserted "that the landlord-tenant relationship is a contractual relationship, which is an umbrella overall even if the only pleading is as to a tort." The trial court then rejected plaintiff's argument and granted summary judgment to HAP. We conclude that the trial court heard, considered, and determined whether the OTCA applies to plaintiff's claim, and that plaintiff's second argument is therefore sufficiently preserved for our consideration on appeal.
We turn, then, to the question whether the trial court erred in concluding that plaintiff's claim constitutes a "tort" subject to the OTCA. For purposes of the ...