State ex rel Dept. of Transp. v. Alderwoods (Oregon), Inc., 2015 WL 9589848, --- P.3d --- (2015)
The Oregon Supreme Court held that a government’s use of its police powers to eliminate or limit access to a property for public safety reasons is not compensable under Article I, Section 18 of the Oregon Constitution, so long as reasonable access to the abutting public right-of-way is maintained. The Court summarized its holding in the following proposition:
Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.) was a personal injury suit over an accident involving plaintiff motorcyclist who was injured when he struck an asphalt berm abutting a raised drain on a county road. The drain system used a heavy steel cover eight to ten inches off the ground with a sloped asphalt berm to channel water into the drain. Defendant County, which managed the road, responded with, among other things, a design immunity defense but brought forth no evidence of any engineering design plans. The County’s road maintenance engineer testified that he “probably” approved the design and there was no other testimony regarding design or engineering. The maintenance engineer was not a licensed engineer and there was no testimony or evidence to show any scientific of engineering analysis for the subject public work – in fact, testimony was that such works were designed “in the field,” and evolved based on practical experience rather than professional design. Plaintiff appealed a verdict favorable to Defendant County based on design immunity.
Plaintiff’s appeal was predicated on insufficient evidence to support the immunity defense. In reviewing a jury verdict, the Court looked only to whether there was substantial evidence to support the same. The Court set out the applicable law as follows:
[California public entity tort law] provides that public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. A public entity may avoid liability for a proven dangerous condition of its property by proving the affirmative defense of “design immunity.” * * *
The Court added that the purpose of design immunity was to prevent a jury from second guessing a local entity’s design or engineering judgment where reasonable people may differ. Under California case law, discretionary design immunity involves three elements:
1. Approval of a plan or design prior to construction;
2. A causal relationship between the plan or design and the accident; and
3. Substantial evidence supporting the reasonableness of the plan or design.
All three elements must be planned and proved by a defendant public entity.
In this case, the Court focused on the discretionary approval criterion as Plaintiff alleged there was no exercise of discretion involved in this case. The evidence showed no previously approved design or plan for the drainage system. Moreover, there was no approval of the project by anyone in the County system having discretionary immunity. The maintenance engineer did not have authority either by virtue of his position or by delegation.
Finally, the Court rejected the County’s contention that the use of this drainage plan in practice for 25-years constituted discretionary approval, as it had no basis in precedent and, in the Court’s view, would greatly expand this branch of immunity beyond what the legislature had authorized. In the absence of such immunity, a public entity is liable for reasonably foreseeable injuries proximately caused by a dangerous condition of its property. The immunity was designed to prevent second guessing decisions by engineers or design professionals exercising their discretion. The record fails to show that the claimed immunity has a basis in fact. Accordingly, the jury verdict was remanded to consider other issues raised by the County but not reached.
Oregon, like California, recognized discretionary immunity to prevent second guessing professional decisions. This case demonstrates the limits of such discretion.
Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.)
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