50 Trial Lawyer • Fall 2022 tionary immunity, and our MSJ judge agreed. Narrowing the scope of the question before the judge from the systemic to the specific is the first step in turning the city’s legal argument into a question of fact — one most judges will be reluctant to resolve at the summary judgment stage. How can we say “most judges”? Well, read on. Case on point There have been a ton of discretionary immunity decisions over the years, and the decisions reached have been inconsistent, to say the least. Compare Tozer v. City of Eugene, 115 Or App 464 (1992) (no discretionary immunity for City of Eugene’s failure to maintain street trees) with Bakr v. Elliott, 125 Or App 1 (discretionary immunity for City of Eugene’s failure to maintain street trees). The upside of that inconsistency, at least for plaintiffs, is that it usually just takes a little digging to find a good case with facts close enough to your own. For example, in our pavement seam case, we had evidence the city had previously repaired the pavement seam just a few feet south of where our client crashed. So, in our response to the city’s MSJ, we relied heavily on Vokoun. In Vokoun, the defendant city had a complaint-driven policy to inspect and repair storm drains. But after receiving a complaint, the repair was done negligently, resulting in a landslide. Although the Oregon Supreme Court agreed that the city’s complaint-driven policy was immunized, it held that the city’s negligent response to the complaint “was a routine decision made by employees in the course of their day-to-day activities,” and thus not subject to discretionary immunity. Id. at 33. We argued that the decision not to fix the full seam was a negligent repair, like Vokoun, and the court agreed. But, even if you can find an appellate case on your side, our narrow, fact specific approach is still only as good as, well … your facts. And that’s why there’s one always final step that you need to take to avoid discretionary immunity in a roadway defect case. Hire an expert every time We really can’t stress enough how critical it is to hire an expert for these cases. Even as lawyers who work on bicycle cases every day, we’re constantly reminded of how much we don’t know A woman was riding her bicycle a little south of Downtown Portland. 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. Our photos showed 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. Pothole Continued from p 49
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