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Turner v. State, Department of Transportation

Court of Appeals of Oregon

April 15, 2015

Tyler TURNER, Plaintiff-Appellant,
STATE OF OREGON, through its Department of Transportation; City of Depoe Bay; and Lincoln County, Defendants-Respondents, and Carol COLIP, Defendant-Appellant. CITY OF DEPOE BAY, et al., Cross-Plaintiffs,
Carol COLIP, et al., Cross-Defendants

Argued and Submitted January 28, 2014.

Page 254

10C17842; A151193. Marion County Circuit Court. Thomas M. Hart, Judge.

W. Eugene Hallman argued the cause for appellant Tyler Turner. With him on the briefs were Hallman Law Office, Wm. Keith Dozier, and Paulson & Coletti.

Thomas M. Christ argued the cause for appellant Carol Colip. With him on the briefs were Julie A. Smith and Cosgrave Vergeer Kester LLP.

Cecil A. Reniche-Smith, Senior Assistant Attorney General, argued the cause for respondent State of Oregon. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Janet M. Schroer argued the cause for respondents City of Depoe Bay and Lincoln County. With her on the brief were Marjorie Speirs and Hart Wagner LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.


Page 255

[270 Or.App. 355] SERCOMBE, P. J.

As plaintiff was travelling north on State Highway 101 in the City of Depoe Bay, his motorcycle collided with defendant Colip's automobile, which had entered the highway from the east on a road owned by Lincoln County. Plaintiff was severely injured in the accident and, more than two years later, brought a personal injury action against Colip, as well as the state, the county, and the city (the governmental entities), seeking damages for his injuries. Plaintiff alleged that Colip operated her vehicle negligently and that the governmental entities negligently designed and maintained the intersection and both roadways. Colip brought cross-claims for contribution against the governmental entities.

The governmental entities moved for summary judgment against plaintiff and Colip. The trial court entered a limited judgment in their favor, concluding that plaintiff's claims against the governmental entities were time-barred under ORS 30.275(9), the applicable statute of limitations in the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, and that the governmental entities were immune from liability under ORS 30.265(6)(c). We conclude that the trial court did not err in entering judgment in favor of the county on the grounds of discretionary immunity under ORS 30.265(6)(c). However, issues of

Page 256

fact on the accrual of the period of limitations and the existence or extent of any discretionary immunity preclude entry of summary judgment in favor of the state and the city. Accordingly, we affirm the limited judgment in part, and reverse in part.

Our standard of review is well known: Summary judgment is appropriate if there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Brehm v. Caterpillar, Inc., 235 Or.App. 274, 278, 231 P.3d 797, rev den, 349 Or. 245, 245 P.3d 129 (2010). When reviewing a grant of summary judgment, we view the facts in the light most favorable to the nonmoving parties--in this case, plaintiff and Colip. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). We set out the facts consistent with that standard of review.

[270 Or.App. 356] BACKGROUND

The accident occurred on June 27, 2008; plaintiff was hospitalized and heavily medicated for several weeks. On July 9, 2008, plaintiff's parents met with an attorney on his behalf, and plaintiff signed a retainer on July 23. That attorney investigated the accident and sent a tort claim notice on July 31, 2008, to each of the governmental entities.[1] The notice provided that " [t]he facts giving rise to [plaintiff's] claim are that on June 27, 2008, he was injured in an automobile/motorcycle collision. The incident took place on Highway 101 and Collins Street in Depoe Bay, Oregon. This incident was caused by the dangerous condition and design of this intersection."

Plaintiff filed an amended complaint against all defendants on July 6, 2010.[2] Plaintiff alleged that he " did not know, nor could he reasonably have known of the negligence of defendants more than two years before the filing of his Complaint." He claimed that the state was negligent in (1) failing to maintain sight distances for the highway intersection and to " adopt mitigation measures" required by administrative regulations, specifically to restrict left-turn movements from Collins Street to Highway 101 and to post warning signs, (2) permitting diagonal parking on the highway with a speed limit of more than 25 miles per hour, contrary to administrative regulations, and (3) " permitting and maintaining" an unreasonably dangerous " intersection onto a state highway" due to " impaired sight distances" and " a failure to post adequate warning signs of a dangerous intersection or impaired sight distances." The amended complaint further alleged that the county and city were negligent in (1) " permitting and maintaining an intersection with impaired sight distances," (2) failing to restrict Collins Street to prohibit a left turn onto Highway 101 or only " to one way [270 Or.App. 357] traffic flowing away from Highway 101," (3) " permitting and installing" diagonal parking on Highway 101 that impaired the views at the intersection, and (4) failing to post signs on both streets " warning of the dangerous intersection."

Plaintiff asserted that Colip was negligent in failing to obey a traffic control device, yield the right of way to plaintiff, and keep a reasonable lookout for oncoming traffic. Colip answered the amended complaint and asserted cross-claims for contribution against the governmental defendants. Those cross-claims reiterated the negligence claims in the amended complaint and added allegations that the governmental entities were negligent in " failing to close the intersection" and " failing to increase visibility for drivers approaching and entering the intersection." Because those acts of negligence " made the intersection dangerous for the traveling public," Colip contended that the governmental entities " should contribute to any amount awarded to Plaintiff."

Page 257

The governmental entities sought summary judgment, asserting that plaintiff's claims were not viable for two reasons. They first argued that plaintiff's amended complaint was untimely under ORS 30.275(9), pursuant to which " an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of [the OTCA] shall be commenced within two years after the alleged loss or injury." Those entities contended that plaintiff knew or should have known of any tortious conduct on their part more than two years prior to the filing of the amended complaint.

Alternatively, the governmental entities advocated that they were immune from liability for the negligence asserted in the amended complaint. The entities argued that their decisions regarding the design and construction of the intersection, parking, traffic controls, and signage, and failure to modify those features were discretionary decisions that were immune from liability under ORS 30.265(6)(c). That statute provides, in part, that " [e]very public body and its officers, employees and agents acting within the scope of their employment or duties *** are immune from liability for *** [a]ny claim based upon the performance of or [270 Or.App. 358] the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."

The court granted the governmental entities' motions for summary judgment against plaintiff on the ground that the claims were barred under the statute of limitations in ORS 30.275(9). Later, when those defendants sought summary judgment against Colip on the contribution cross-claims, the court granted summary judgment in their favor. The court concluded that the governmental entities were immune from liability to plaintiff, and thereby not liable to contribute to Colip for a share of any recovery obtained against her, because of the discretionary immunity provided under ORS 30.265(6)(c). Plaintiff and Colip appeal from the limited judgment entered against them and in favor of the governmental entities.


We begin by evaluating whether plaintiff's action was " commenced within two years after the alleged loss or injury" under ORS 30.275(9). The relevant legal principles are well established. First, the OTCA statute of limitations is tolled under the discovery rule until " a plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury." Doe v. Lake Oswego School District, 353 Or. 321, 327, 297 P.3d 1287 (2013) (internal quotation marks omitted; emphasis in original). More specifically, the term " injury" in the statute means that which " 'formed the basis for an action, i.e., legally cognizable harm'" and a " 'harm is legally cognizable if it is the result of tortious conduct.'" Id. at 328 (quoting Gaston v. Parsons, 318 Or. 247, 254-55, 864 P.2d 1319 (1994)). Thus, a reasonable plaintiff must discover " not only the conduct of the defendant, but also *** the tortious nature of that conduct." Id. at 331. As noted, ...

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