Date: 03-29-2017

Case Style: Dylan Robbins v. City of Medford

Case Number: A158451

Judge: Lagesen

Court: Oregon Court of Appeals on appeal from the Circuit Court, Jackson County

Plaintiff's Attorney: Dennis H. Black

Defendant's Attorney: Dominic M. Campanella

Description: Plaintiff was seriously injured when he was hit by
a car while crossing South Riverside Avenue at its intersection
with Ninth Street in Medford. There are no traffic signals
controlling that intersection, but the City of Medford
has installed a crosswalk across South Riverside Avenue on
the south side of the intersection. Plaintiff was in that crosswalk
when he was hit, and he alleges that the city was negligent
by placing a crosswalk at that location and by omitting
certain safety features from the crosswalk’s design that, in
plaintiff’s view, would have averted his accident. On summary
judgment, the trial court concluded that the discretionary
immunity provision of the Oregon Tort Claims Act,
ORS 30.265(6)(c),1 bars plaintiff’s negligence claims against
the city and entered judgment for the city on those claims.2
We conclude that the trial court’s grant of summary judgment
was correct with respect to plaintiff’s challenge to the
city’s design decisions but that there are genuine issues of
material fact as to the plaintiff’s challenge to the city’s decision
to locate the crosswalk where it did. We therefore affirm
in part and reverse in part.
I. ISSUE PRESENTED
AND STANDARD OF REVIEW
We start by identifying what is—and is not—at
issue in this appeal, as well as the legal standards that govern
our review of the trial court’s resolution of the issues
presented.
First, what is at issue: In the complaint, plaintiff
alleges that the city was negligent in five different ways. Two
of the specifications of negligence, specifications 13(a) and
13(b), challenge the city’s decision to place the crosswalk
where it did. They allege that the city was negligent by:
1 ORS 30.265(6)(c) provides that a “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 the failure to
exercise or perform a discretionary function or duty, whether or not the discretion
is abused.”
2 Plaintiff also asserted claims against two other defendants, the driver of
the car that hit him and the Medford Urban Renewal Agency. The claims against
those defendants are not at issue in this appeal.
Cite as 284 Or App 592 (2017) 595
“(a) Creating a marked, multi-lane crosswalk at the
South Riverside Avenue area where [plaintiff’s accident]
occurred; [and]
“(b) Failing to remove the marked crosswalk after having
been advised to do so by engineering staff.”
The remaining three specifications, specifications 13(c),
13(d), and 13(e), challenge the city’s design of the crosswalk.
They allege that the city was negligent by:
“(c) Failing to place traffic control devices adequate to
stop vehicles approaching the crosswalk before persons,
such as plaintiff, stepped into the crosswalk to cross the
street;
“(d) Failing to place features into the vehicular approach
to the crosswalk sufficient to protect plaintiff from being
struck; and,
“(e) Failing to respond with appropriate and well known
safety repairs to the dangers of the crosswalk once they
had become known.”
The city’s motion for summary judgment did not
put at issue plaintiff’s ability to prove those specifications of
negligence. The only issue raised in the motion was whether
discretionary immunity bars plaintiff from recovering on
his claims against the city. Consequently, for purposes of
this appeal, we assume that the city was negligent in each of
the manners alleged. Garrison v. Deschutes County, 334 Or
264, 272, 48 P3d 807 (2002) (on review of grant of summary
judgment to a county on the grounds of discretionary immunity,
“we assume that the county, were it a private party,
could have been found liable to plaintiffs for their injuries”).
The sole question is the city’s entitlement to discretionary
immunity for those assumedly negligent acts and omissions.
ORCP 47 C; Eklof v. Steward, 360 Or 717, 731, 385 P3d 1074
(2016) (the only issues properly before a court on summary
judgment are those raised in the motion for summary judgment);
Two Two v. Fujitec America, Inc., 355 Or 319, 326,
325 P3d 707 (2014) (same).
Second, our task on review: The trial court resolved
the issue of the city’s entitlement to discretionary immunity
on summary judgment. On review of a grant of summary
596 Robbins v. City of Medford
judgment, we must view the summary judgment record in
the light most favorable to the nonmoving party—in this
case, plaintiff—and determine whether there are genuine
issues of material fact and whether the city, as the moving
party, is entitled to judgment as a matter of law on the
ground of discretionary immunity. ORCP 47 C; John v. City
of Gresham, 214 Or App 305, 311, 165 P3d 1177 (2007),
rev dismissed, 344 Or 581 (2008).
Because discretionary immunity is an affirmative
defense on which the city would have the burden of proof at
trial, summary judgment is “appropriate only if [the city]
establishes all of the elements of the defense as a matter of
law.” John, 214 Or App at 311-12; see also Wieck v. Hostetter,
274 Or App 457, 470, 362 P3d 254 (2015) (explaining what
party who would bear the burden of proof at trial must show
to be entitled to summary judgment). “[O]ur task on appeal,
as circumscribed by our standard of review, is to determine
whether the uncontroverted evidence presented by defendant
in support of [its] motion for summary judgment is such that
all reasonable factfinders would have to find in defendant’s
favor on [its] affirmative defense of” discretionary immunity.
Wieck, 274 Or App at 470. In other words, “we must be
able to conclude that no reasonable factfinder could reject
defendant’s defense.” Id. Because plaintiff’s specifications of
negligence challenge distinct alleged acts and omissions by
the city, we consider the city’s entitlement to discretionary
immunity with respect to each act or omission alleged to
be negligent. See, e.g., Mosley v. Portland School Dist. No.
1J, 315 Or 85, 92-94, 843 P2d 415 (1992) (analyzing defendant’s
entitlement to discretionary immunity with respect
to distinct allegations of negligence); Stevenson v. State of
Oregon, 290 Or 3, 17-18, 619 P2d 247 (1980) (Tanzer, J., concurring)
(explaining that when complaint alleges multiple
acts of negligence, court should determine whether conduct
is immune with respect to each alleged negligent act).3
3 In their briefs to us, the parties have not undertaken to analyze the city’s
entitlement to discretionary immunity with respect to each distinct alleged specification
of negligence. We do so because that is the approach the Supreme Court
has taken in its case law and we understand that to be the required approach. See
Mosley, 315 Or at 92-94 (ascertaining defendant’s entitlement to discretionary
immunity with respect to distinct specifications of negligence); John, 214 Or App
at 312 (explaining that first step in assessing whether discretionary immunity
Cite as 284 Or App 592 (2017) 597
II. ANALYSIS
ORS 30.365(6)(c) immunizes public bodies and
their officers, agents and employees from civil liability for
conduct that “is the result of a choice among competing
policy considerations, made at the appropriate level of government.”
Garrison, 334 Or at 273. Under that provision, a
governmental actor is entitled to discretionary immunity for
allegedly negligent conduct only if three elements are met.
First, the conduct must be the product of a decision. John,
214 Or App at 314 (discretionary immunity does not apply
to nondecisions). Second, that decision must be a policy decision.
Turner v. Dept. of Transportation, 359 Or 644, 652-53,
375 P3d 508 (2016). A policy decision is one that involves the
“assessments of policy factors, such as the social, political,
financial, or economic effects of implementing a particular
plan or of taking no action.” Id. at 653; John, 214 Or App at
312 (“Discretionary policy decisions are those that involve a
balancing of competing policy considerations in determining
the public interest.”). Routine discretionary decisions made
by governmental employees in the course of their day-to-day
responsibilities are not policy decisions. John, 214 Or App at
312. Third, the decision must have been made by a governmental
decision-maker with the authority to make that type
of policy decision. Garrison, 334 Or at 274. We turn to our
examination of whether, with respect to each of plaintiff’s
specifications of negligence and each element of the discretionary
immunity defense, the city has established its entitlement
to discretionary immunity as a matter of law.
A. Allegations with Respect to Crosswalk Location
Specification 13(a) alleges that the city was negligent
in placing a marked crosswalk at the location where
plaintiff was injured. As we explain, there are factual disputes
regarding the decision-making process that led to the
placement of the crosswalk at that site. Those factual disputes
preclude summary judgment on the issue of discretionary
immunity. See John, 214 Or App at 313-14 (conflicting
evidence regarding the decision-making process that led
applies is to “ascertain the nature of the decision or action involved” in the light
of the particular challenge made by the plaintiff).
598 Robbins v. City of Medford
to the painting of a crosswalk precluded grant of summary
judgment to city on discretionary-immunity grounds on
plaintiff’s claim that city was negligent in placing crosswalk
where it did).
On the one hand, the evidence tends to suggest that
the city, through the proper governmental decision-maker,
did, in fact, make a policy decision to locate a crosswalk at
the intersection in question. According to that evidence, the
city, by ordinance, has delegated the authority to make decisions
about the location and design of crosswalks to its public
works director. Cory Crebbin is the city’s public works director
and, in February 2009, he decided to paint the marked
crosswalk at the location where plaintiff was injured. At the
same time, he decided to remove a marked crosswalk that
had been located on the north side of the intersection since
2003. Crebbin made those decisions after receiving a recommendation
from the city’s Traffic Coordinating Committee
(TCC), which is charged with advising the public works
director about matters of pedestrian and vehicular traffic.
The TCC, which had received complaints about the existing
crosswalk, recommended the removal of that crosswalk and
the painting of a new crosswalk at the location where plaintiff
was injured. It made that recommendation in the hopes
of reducing conflicts between pedestrians and vehicles turning
left onto South Riverside Avenue from Ninth Street.
Crebbin reviewed the TCC’s recommendation, and determined
that it was consistent with the Manual for Uniform
Traffic Control Devices (MUTCD) and also comported with
his own engineering judgment. Based on that assessment,
Crebbin chose to implement the TCC’s recommendation by
removing the existing crosswalk and repainting it on the
opposite side of the intersection.
On the other hand, the evidence submitted by plaintiff
in opposition to the city’s motion suggests a different
version of events. That evidence would permit a reasonable
factfinder to find that the crosswalk’s location was not the
product of a policy decision, or, at a minimum, would permit
a reasonable factfinder to reject the city’s contention that it
was the product of a policy decision. In particular, plaintiff
submitted an affidavit from Anne McLoy, a television news
reporter in Medford. In it, McLoy testified that a few months
Cite as 284 Or App 592 (2017) 599
after plaintiff’s accident, she interviewed Crebbin about
pedestrian accidents in Medford generally, and about plaintiff’s
accident in particular, for a story that she was doing
on Medford pedestrian accidents. In response to McLoy’s
question as to why so many Medford crosswalks were faded,
Crebbin told her that “research has shown that painting a
crosswalk can actually increase the number of pedestrians
hit by cars.” Crebbin also told McLoy “that the crosswalk
that [plaintiff] was struck in, the one on 9th and Riverside,
is clearly marked, but [that] it is actually dangerous and, in
fact, it really was never supposed to be there.” Crebbin said
that city engineers had “missed it in the City’s renovation
plans, but when they suggested removing it, it was determined
to leave it and mark it better.”
Crebbin’s statements to McLoy, which would be
admissible against the city at trial as admissions of a
party opponent,4 create a factual dispute as to whether
the city, through its delegated decision-maker Crebbin,
actually made a policy decision to locate a marked crosswalk
at the location where plaintiff was injured. That evidence
would permit a reasonable factfinder to find that
the crosswalk’s location was more a product of mistake or
inadvertence than of the weighing of policy considerations
required for discretionary immunity to apply. At the very
least, McLoy’s testimony would impeach Crebbin’s testimony
(assuming he testified consistently with his affidavit
that was submitted in support of the city’s motion for
summary judgment), and allow a reasonable factfinder
to have doubts about the nature of the city’s decisionmaking
process for locating the crosswalk and, based on
those doubts, reject the city’s discretionary-immunity
defense. See Washington v. Taseca Homes, Inc., 310 Or
783, 789-90, 802 P2d 70 (1990) (noting “that a party-
4 Under OEC 801(4)(b)(D), Crebbin’s statement to McLoy would be admissible
against the city because it is “[a] statement by the party’s agent or servant
concerning a matter within the scope of the agency or employment, made
during the existence of the relationship.” See Andrews v. R.W. Hays Co., 166 Or
App 494, 499-500, 998 P2d 774 (2000) (discussing when statements of an organization’s
employees are admissible as admissions of the organization in a case
against the organization). It is undisputed that, by ordinance, Crebbin is the city
employee with the delegated responsibility for the city’s crosswalks. Thus, his
statements about the crosswalk are ones “concerning a matter within the scope”
of his employment.
600 Robbins v. City of Medford
opponent’s statement may have dual probative value * * *
both to prove what did not occur and to show defendant’s
prior inconsistent statement on that subject”). For those
reasons, there is a genuine issue of material fact as to
whether the city’s decision to place a crosswalk at the location
where plaintiff was injured is protected by discretionary
immunity. As a result, the trial court erred in concluding
that the city was entitled to summary judgment with
respect to the first specification of negligence against the
city.
We also conclude that the trial court erred in granting
summary judgment to the city with respect to plaintiff’s
specification 13(b). That specification alleges that the city
was negligent in failing to remove the crosswalk after city
engineers advised the city to do so. As noted above, because
the city did not challenge those allegations in its motion for
summary judgment, we assume the truth of them—that is,
that the city engineers in fact advised the city to remove the
crosswalk in which defendant was hit but that the city did
not do so. Nothing in the city’s summary judgment evidence
addresses those allegations; the only evidence in the record
about the removal of a crosswalk is the evidence regarding
the decision to remove the previous crosswalk on the other
side of the intersection. Thus, the city simply has not made a
case for discretionary immunity with respect to the second
specification of negligence and, consequently, is not entitled
to summary judgment on discretionary-immunity grounds
as to that allegation.
B. Allegations with Respect to Crosswalk Design
Plaintiff’s third, fourth, and fifth specifications
of negligence, specifications 13(c), 13(d), and 13(e), challenge
the crosswalk’s design.5 Plaintiff alleges that the city
5 Plaintiff’s fifth specification of negligence is ambiguous. It alleges that
the city was negligent in “[f]ailing to respond with appropriate and well known
safety repairs to the dangers of the crosswalk once they had become known.”
Although the reference to “repairs” could be construed to suggest that plaintiff
was alleging that the city was negligent in its routine maintenance of the crosswalk,
the parties appear to have treated this allegation as challenging the crosswalk’s
design and the city’s failure to incorporate additional safety features into
that design. For that reason, we construe the fifth allegation as a challenge to the
crosswalk’s design.
Cite as 284 Or App 592 (2017) 601
was negligent in omitting certain safety features from its
design. The city argues that it is entitled to summary judgment
as to those specifications because the uncontroverted
evidence in the summary judgment record establishes
that the crosswalk’s design—including the safety features
that it does and does not have—is the product of a policy
decision made by Crebbin in 2010, approximately one year
after the crosswalk was installed at the location of plaintiff’s
accident.
We agree with the city. According to the city’s
uncontroverted evidence, a year after the installation of
the crosswalk, Crebbin received a recommendation from
the TCC that the city should install additional pedestrian
safety measures at the crosswalk. The TCC recommended
painting a “ ‘STOP bar’ on the pavement 20 feet south of the
subject crosswalk and ‘Stop Here for Pedestrian’ signs on
both sides of Riverside Avenue.” The TCC advised against
pedestrian actuated lights at the crosswalk because of concerns
about effectiveness, expense, and the potential impact
of such lights on the traffic flow on Riverside Avenue. After
receiving that recommendation, Crebbin conducted his
own assessment of what safety measures to install at the
crosswalk, with the assistance of Alex Georgevitch, the
city’s transportation manager and engineer. In particular,
Crebbin investigated whether to install pedestrian actuated
lights in the crosswalk or to, instead, accept the TCC’s
recommendation to address safety issues with a painted
stop bar and additional signs. Ultimately, Crebbin chose
to accept the TCC’s recommendation—which he had determined
otherwise complied with the MUTCD—because
of policy considerations: the cost of the lights, their likely
effectiveness, and the process of obtaining approval from
the state to install the lights. Thus, at the time of plaintiff’s
accident, the safety features in place at the crosswalk were
the product of Crebbin’s policy decision. Because it is undisputed
that Crebbin had the delegated authority to make
that decision, the city has established that it is entitled to
discretionary immunity as a matter of law with respect
to plaintiff’s third and fourth specifications of negligence.
See Mann v. McCullough, 174 Or App 599, 607, 26 P3d 856
(2001), rev den, 334 Or 631 (2002) (affirming a directed
602 Robbins v. City of Medford
verdict on discretionary-immunity grounds on negligence
claim where undisputed evidence showed traffic control
choices were the result of city’s delegated policy decisions).
In arguing for a contrary conclusion, plaintiff points
to his ORCP 47 E affidavit, which avers that plaintiff has
an expert who will testify in such a way as to give rise to
an issue of material fact. But, in this case, the city’s claim
to discretionary immunity is dependent on the historical
facts—the city’s theory of defense is that Crebbin, its delegated
decision-maker, made a policy decision about what
safety features the crosswalk should include. Whether or
not Crebbin made the policy decision that the city claims he
made is not a matter that is susceptible to proof by expert
testimony. Under those circumstances, plaintiff’s ORCP
47 E affidavit is insufficient to preclude summary judgment.
As we have explained,
“If the point or points put at issue by a * * * summary
judgment motion could not conceivably be proven through
expert testimony, but necessarily would require proof by
testimony from witnesses with personal knowledge, then
an ORCP 47 E affidavit will not, on its own, preclude summary
judgment.”
See Hinchman v. UC Market, LLC, 270 Or App 561, 572, 348
P3d 328 (2015).6
Consequently, the trial court correctly granted summary
judgment to the city with respect to plaintiff’s third,
fourth, and fifth specifications of negligence.
6 This does not mean that an ORCP 47 E affidavit will never suffice to preclude
summary judgment on an issue of discretionary immunity. In some cases, it
may. For example, if a governmental entity were to claim discretionary immunity
in connection with a claim for negligent crosswalk design by contending that the
design was the product of its policy decision to adopt the MUTCD, then an ORCP
47 E affidavit could suffice to create a factual dispute. That is because, in such
a case, the governmental entity’s claim for discretionary immunity would fail if
the crosswalk’s design did not, in fact, comport with the MUTCD, and the issue
of the design’s compliance with the MUTCD is one that is susceptible to proof by
expert testimony. See McComb v. Tamlyn, 173 Or App 6, 14-15, 20 P3d 237 (2001)
(conflicting expert testimony about whether intersection’s design complied with
MUTCD where state argued that adopting MUTCD was a policy choice precluded
directed verdict for the state on discretionary immunity grounds). As always,
whether an ORCP 47 E affidavit suffices to preclude summary judgment depends
on the particular facts of the case, including the plaintiff’s theory of the case, the
defendant’s theory of defense, and the particular issues raised by the motion for
summary judgment.
Cite as 284 Or App 592 (2017) 603

Outcome: For the foregoing reasons, we affirm the trial court’s
grant of summary judgment to the city with respect to the
specifications of negligence alleged in paragraphs 13(c),
13(d), and 13(e) (the design allegations) of the complaint,
but reverse with respect to the specifications of negligence
alleged in paragraphs 13(a) and 13(b) (the location allegations)
and remand for further proceedings with respect to
those allegations.
Reversed and remanded for further proceedings
with respect to specifications 13(a) and 13(b); otherwise
affirmed.

Plaintiff's Experts:

Defendant's Experts:

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