Bakr v. Elliott , 125 Or. App. 1 ( 1993 )

RICHARDSON, C. J.

On June 20, 1990, while driving on Jefferson Street in Eugene, plaintiffs decedent was fatally injured when a large tree limb broke and fell on his pickup truck. In 1981, the city had inspected the tree, observed that it was in “fair condition,”¹ and noted that it “needed work.” However, the city’s tree crew did not inspect or engage in any maintenance activity on the tree between 1981 and the time of the accident. Plaintiff brought this wrongful death action against the city,² alleging that it was negligent in the following respects:

“a. In failing to remove from the tree, or otherwise secure, the heavy branch that fell, even though that branch had veered from the body of the tree to a lower elevation several months before it broke off and fell.

“b. In failing to periodically, or at any time, prune the tree to prevent branches from breaking off and falling to the ground, even though other branches from that horse chestnut tree and from other trees in the immediate vicinity had previously broken off and fallen to the ground.

“c. In failing periodically, or at any time, to inspect the tree to determine whether large branches were overladen with foliage, had changed position, or otherwise constituted a hazard to vehicles and pedestrians in the vicinity.

“d. In failing to respond to requests to periodically, or at specific times, inspect this tree and other trees in the immediate vicinity!,] to prune and to determine the need for pruning to protect the public safety.”

The city moved for summary judgment. It argued that it had no actual or constructive knowledge of the hazardous condition of the tree, that its lack of knowledge was due to its not having inspected the tree and that the decision not to inspect the tree was an exercise of policy judgment for which it is immune from liability under ORS 30.265(3)(c).³ The trial court agreed with the city, granted its motion and entered judgment in its favor. Plaintiff appeals, and we affirm.

In Sager v. City of Portland, 68 Or App 808, 815, 684 P2d 600, rev den 298 Or 37 (1984), we held that the City of Portland was immune from liability for injuries allegedly arising from its failure to inspect and repair its sidewalks, because the development of its sidewalk maintenance program

“involve[d] a determination of priorities regarding allocation of personnel, materials and funds. Municipalities with fixed budgets must always struggle to allocate limited resources appropriately, and we are constrained against finding that the legislature intended to impose liability in such circumstances.” (Emphasis supplied.)

See also Ramsey v. City of Salem, 76 Or App 29, 707 P2d 1295 (1985). Although a municipality is immune from liability in connection with the development of an inspection and maintenance program, the immunity defense does not extend to claims based on negligence in the implementation of the program or the performance of particular maintenance activities. Tozer v. City of Eugene, 115 Or App 464, 466, 838 P2d 1104 (1992).

Plaintiff contends that there was evidence to show that the city was negligent in failing to inspect and attend to the tree.⁴ Her arguments fall into two categories. The first relates to alleged failures to undertake inspections and maintenance of the tree as part of a system-wide program. Those arguments are defeated by the city’s immunity defense. The record conclusively establishes that, due to its work load, understaffing and limited financial resources, the city, through its responsible officer, adopted a “crisis management” tree maintenance program. That program required supervisors to prioritize work requests, with the goal being to respond to immediate hazards within 24 hours, to potential hazards within five days, and to all other requested work as time allowed. Although staff members inspected the trees that they worked on and would occasionally examine trees that they were able to inventory, there was no formal tree inspection program in place at the time of this accident. Here, as in Sager, the city’s inspection and maintenance program was developed by policy-making officials in response to budgetary constraints. The city’s failures to inspect and maintain this tree as part of an inspection and maintenance program are attributable to its discretionary decision not to have a program that, in its regular performance, would have resulted in particular attention to the tree.⁵

Plaintiff also argues that the city was or should have been aware of the dangerous condition of this tree specifically, and that it is not cloaked with immunity for its failure to act on that information. Plaintiff relies on the 1981 report and on various events that she suggests gave the city the opportunity to familiarize itself with the condition of the tree. Most charitably viewed, the 1981 report arguably could support the inference plaintiff would draw; the other evidence to which she points could not.

The difficulty with the argument is that, to the extent it demonstrates a question of fact about negligence, it demonstrates the absence of a factual question about immunity. The city’s program was developed long after the 1981 report and, under the program, a tree in the condition that the 1981 report describes is not subject to regular inspection or maintenance.

This case differs from Mosley v. Portland School Dist. No. 1J, 315 Or 85, 843 P2d 415 (1992). The court held there that the administrative decision by school officials as to where to assign security personnel on school premises was discretionary, but the discretion did not extend to the failure to assign personnel to locations where the school authorities had “specific knowledge” that a fight would take place. The apparent thrust of the court’s reasoning in Mosley was that the school authorities had no discretion not to use the personnel to stop a fight that they knew was occurring or would occur.

Conversely, the policy decision here entailed a choice of what trees to inspect and maintain. This case might be analogous to Mosley if the evidence left open the question of whether this tree was one of the most dangerous ones in the city. However, the evidence established the opposite. The city was entitled to make a discretionary policy decision not to do anything about trees that its “specific knowledge” apprised it were in fair condition. Trees having only the deficiencies that the 1981 report identifies about this tree were excluded from further attention by the terms of the discretionary policy, while trees with more glaring deficiencies were to receive more urgent attention under it.

We hold that the evidence in the summary judgment record conclusively establishes that the city’s conduct, if negligent, entailed the formulation and execution of a policy judgment, and that it was immune as a matter of law.

Affirmed.

1 A tree’s condition is rated as good, fair or poor.

2 Plaintiff also brought a wrongful death action against Gordon Elliot, the owner of the property on which the tree is located. Elliot is not a party to this appeal.

3 ORS 30.265 provides, in pertinent part:

“(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:

* * * *

“(c) Any 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.”

4 She also argues that the city failed to respond to requests to perform work on the tree, but there was no evidence that any requests were received.

5 Plaintiff maintains that the city’s policy decision was “bogus,” andthatample resources were available to fund a more satisfactory inspection and maintenance program. The question for this court, however, is not whether the city’s policy decision was right or wrong, but whether it made one.