48 Trial Lawyer • Fall 2022 By Charley Gee OTLA Guardian By Timothy Walsh A roadway defect case is the quint- essential bicycle case. Almost every Oregon road has potholes, almost every road has people cycling on it, and cyclists are especially vulnerable to hitting those potholes, crashing and suffering serious injuries. But like the roads our clients crash on, a roadway defect case can be deceptively dangerous, even for the most experienced personal injury lawyer. The surface of the case seems smooth enough. Every state and local government has a duty to ensure public roads are reasonably safe to use. A roadway user crashing in a pothole is an imminently foreseeable outcome of inadequate road maintenance. Don’t be fooled, though. All over that smooth, open and shut negligence case are dangerous hazards that could send your case hurtling right out of court. The most dangerous of those case potholes is “discretionary immunity,” a provision of the OregonTort Claims Act that shields public bodies from liability for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” ORS 30.265(6)(c). In other words, to get off scot-free, the public agency defendant in your roadway defect case just needs to show it simply decided to prioritize repairing other streets instead of the one your client crashed on. And trust us — they always can. We’ve seen discretionary immunity raised as a defense in every one of our roadway defect cases, regardless of the facts, whether the crash was on a busy street or a side street, and whether it involved a pothole, a pavement seam, a manhole or some other utility access point. Rest assured. At some point in your roadway defect case, your defendant will file a motion for summary judgment, a supporting declaration from one of its employees talking about their street repair policy, and a legal memorandum that just points to the case law. The case law, in broad strokes, is not great for plaintiffs. At least four Oregon appellate decisions — Timberlake v. Washington Cnty., 228 Or App 607 (2009), Sager v. City of Portland, 68 Or App 808 (1984), Ramsey v. City of Salem, 76 Or App 29 (1985), and Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or App 416 (2002) — have held that the failure to inspect, warn and repair roadway defects are discretionary acts immune from liability. This may seem like an open invitation for public agencies to avoid accountability, and that’s exactly what it’s become. Fortunately, over the past few years, our firm has found a path to fight back against discretionary immunity in roadway defect cases. Because we’re based in Portland, we've focused on how to beat the City of Portland’s approach to roadway defect discretionary immunity at the summary judgment stage. But whether you’re suing Portland, another city, a Charley Gee Timothy Walsh How to avoid the biggest pothole in roadway defect cases.
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