Thompson v. City of Portland ( 2022 )

131
Argued and submitted November 15, 2021, affirmed January 20, 2022
Jeffery THOMPSON,
Plaintiff-Appellant,
v.
CITY OF PORTLAND,
a Public Body, and
Multnomah County,
a Public Body,
Defendants-Respondents.
Multnomah County Circuit Court
18CV55358; A173444
505 P3d 484
Amy Holmes Hehn, Judge.
J. Randolph Pickett argued the cause for appellant. Also
on the opening brief were Kimberly O. Weingart, Shangar S.
Meman, and Pickett Dummigan McCall LLP; and Charley
Gee and Charley Gee P.C. Also on the reply brief was Rachel
M. Jennings.
Denis M. Vannier argued the cause for respondents. On
the brief was YoungWoo Joh.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
PER CURIAM
Affirmed.
132 Thompson v. City of Portland
PER CURIAM
Plaintiff was riding a bicycle downhill when he
struck a pothole, causing him to crash and sustain serious
injuries. Plaintiff brought this action against Multnomah
County, which owns the road where the crash occurred, and
the City of Portland (city), which maintains the road under
an intergovernmental agreement. Plaintiff alleged that
defendants were negligent in failing to repair the pothole
sooner. Defendants moved for summary judgment on the
affirmative defense of discretionary immunity under ORS
30.265(6)(c). The trial court granted the motion and entered
a general judgment of dismissal. Plaintiff appeals.
When reviewing a grant of summary judgment, we
state the facts from the summary judgment record in the
light most favorable to the nonmoving party, which is plain-
tiff in this case. Wirth v. Sierra Cascade, LLC, 234 Or App
740, 745, 230 P3d 29, rev den, 348 Or 669 (2010). Our task
is to view the record and all reasonable inferences that may
be drawn from it in the light most favorable to plaintiff to
determine whether a genuine issue of material fact exists
and, if not, whether defendants are entitled to judgment on
their affirmative defense as a matter of law. ORCP 47 C. “No
genuine issue of material fact exists if no objectively reason-
able juror could return a verdict for the nonmoving party.”
Wirth, 234 Or App at 745.
ORS 30.265(6)(c) immunizes public bodies from claims
based on discretionary acts. Plaintiff does not challenge
defendants’ pothole-repair policy, which he acknowledges
is subject to immunity. The gist of that policy is that the
city has a “target” of repairing any pothole within approxi-
mately 30 days of receiving a report that the pothole exists.1
What plaintiff contends is that the trial court erred in dis-
missing his claims because there is a genuine dispute of
material fact as to the city’s implementation of the policy.
As plaintiff puts it, he is “not challenging the policy of using
a complaint-driven system to address potholes” but, rather,
“defendants’ failure to fix a known hazardous pothole after
receiving notice.”
1
On average, the city fills approximately 11,000 potholes per year.
Cite as 317 Or App 131 (2022) 133
The parties disagree about the state of the evidence
regarding when the pothole was reported. Defendants main-
tain that the only evidence is that the pothole was reported
on July 19, 10 days prior to plaintiff’s accident of July 29.
Plaintiff contends that there is conflicting evidence as to
whether the pothole was reported on May 21, July 4, or July 19.
Having reviewed the summary judgment record, we agree
with defendants that there is no evidence that this pothole
was reported on May 21. The only factual finding that the
evidence in the record would legally permit is that dif-
ferent potholes, located approximately one mile from the
site of plaintiff’s accident, were reported on May 21. And
we need not resolve whether there is some evidence of a
July 4 report—a disputed point that turns on the laws of
evidence—because the difference between a report date of
July 4 or July 19 is not material in this instance.
Because there is no evidence that the pothole at issue
was reported more than 30 days before plaintiff’s accident,
the trial court did not err in concluding that the summary
judgment record forecloses that theory of plaintiff’s case. We
also conclude that the trial court did not err in deciding that
no genuine dispute of material fact exists as to plaintiff’s
other case theories. In short, based on the evidence in the
summary judgment record, plaintiff’s other theories could
not prevail unless a factfinder engaged in impermissible
speculation regarding when the pothole at issue formed, its
severity over time, and ways that defendants might have
discovered the pothole before it was reported.
On this record, the trial court did not err in grant-
ing summary judgment for defendants based on their
affirmative defense of discretionary immunity under ORS
30.265(6)(c).
Affirmed.