OTLA Trial Lawyer Fall 2022

49 Trial Lawyer • Fall 2022 county or the state, the message is the same: together, we can fill this pothole back up. Seeing the pothole Whenever you sue the City of Portland on a roadway defect case, the third affirmative defense in its answer will be discretionary immunity, and it will look exactly like this: Third Affirmative Defense (Di scret ionar y Immuni ty — ORS 30.265(6)(c)) Any acts or omissions that Plaintiff alleges against City that give rise to City’s liability are discretionary functions and/or duties for which City is immune from liability pursuant to ORS 30.265(6)(c). So be forewarned. The city plans to file a discretionary immunity MSJ from the moment you file your pavement defect case. How do we know that the city will approach your case like this? Well, because in every pavement defect case we’ve handled over the past three years, the city has used the exact same motion, typos and all. The template looks like this: Background: • A summary of the plaintiff’s crash. • The full history of construction and maintenance on the road where your client crashed. • A two-paragraph description of “The city’s complaint-driven system for identifying, prioritizing and addressing infrastructure issues. • A paragraph explaining that the city either never received any complaints about the pavement defect your client hit, or that they’d received a complaint but not had time to repair it yet. Argument: • A lengthy section linking the “complaint-driven” system to Timberlake, Sager, Ramsey, and Ramirez. • A brief assertion that any alleged negligence — typically a failure to inspect, warn or repair the road — was a product of that “complaint-driven” system. • A conclusion that the city is therefore shielded from liability. The more we read it, the more we understand why the city uses that template. It’s a clear and, at least superficially, fairly persuasive argument. Now, to be sure, any response to that MSJ could go on for pages about the inherent flaws of the “complaint-driven” system, how the duty to ensure that public roads are reasonably safe to use is “nondiscretionary” and how the “range of permissible choices” in carrying out that duty do not include “the choice of not exercising care.” Hughes v. Wilson, 345 Or 491, 497, 500 (2008), citing Mosley v. Portland School Dist. No. 1J, 315 Or 85, 92 (1992) and Vokoun v. City of Lake Oswego, 335 Or 19, 31 (2002). But, at least in our experience, a fullfrontal assault on city policy simply hasn’t worked. So here’s our first tip for avoiding the discretionary immunity pothole. Can’t beat the system Portland has 48 times more lane miles of pavement than the city has resources to pave each year, so city government has made a policy decision to prioritize repairs for roads that people complain about the most. That kind of policylevel decision is exactly what discretionary immunity was designed to protect. See, e.g., Stevenson v. State Dep’t of Transp., 290 Or 3, 15 (1980) (“The appropriate agency might decide, for example, that its budget would permit the repaving of either of two sections of highway but not both. The decision to repair one rather than the other would not be grounds for tort liability if made in the deliberate exercise of the agency’s authority to set such priorities.”) City attorneys are experienced at explaining the city’s dilemma, and it doesn’t take a lot of imagination to see how judges in our cash-strapped court system might be sympathetic. So, our first real breakthrough in crafting our MSJ responses was to just… concede it. We tell the court up front that we agree with the city. Its fiscal constraints, budget process and street repair system are all immune from liability. That one simple move gains us credibility with the court, disarms the city’s most potent legal argument and allows us to redefine the fight on our terms. Because what the city hasn’t fully grasped—at least, not yet — is that while the city’s policy decisions may be immune from liability, city employees’ routine, day-to-day decisions are not. That led to our second big breakthrough. Narrow the scope Instead of attacking the complaintdriven system as a whole, focus your arguments (and your investigation) on the specific roadway defect your client crashed on. There are several easy ways to turn up compelling circumstantial evidence that some responsible city employee, at some point in time, interacted with the defect that injured your client and didn’t do anything about it. Six years ago, one of our clients was riding just south of Downtown Portland. As she moved into the bike lane, her front wheel caught in an inch-deep pavement seam that was concealed by the white stripe that separates the bike lane from the general traffic lane. The city had never received a complaint about that pavement defect. But just from looking at Google street views over the last decade, it was obvious the city had repeatedly repainted the lane stripe in a way that visually concealed the pavement seam, creating the dangerous condition that led to our client’s crash. That’s precisely the kind of routine, day-to-day negligence that isn’t covered by discreSee Pothole 50

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