Turner v. Dept. of Transportation

644 May 26, 2016 No. 35
35
Turner v. Dept. of Transportation 359
May 26, Or
2016
IN THE SUPREME COURT OF THE
STATE OF OREGON
Tyler TURNER,
Respondent on Review,
v.
STATE OF OREGON,
through its
Department of Transportation,
Petitioner on Review,
and
CITY OF DEPOE BAY
and Lincoln County,
Defendants-Respondents,
and
Carol COLIP,
Respondent on Review.
CITY OF DEPOE BAY, et al.,
Cross-Plaintiffs,
v.
Carol COLIP, et al.,
Cross-Defendants.
(CC 10C17842; CA A151193; SC S063319)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 14, 2016.
Peenesh H. Shah, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
W. Eugene Hallman, Hallman Law Office, Pendleton,
argued the cause and filed the brief for respondent on review
______________
*  Appeal from Marion County Circuit Court, Thomas M. Hart. 270 Or App
353, 348 P3d 253 (2015).
Cite as 359 Or 644 (2016) 645
Tyler Turner. With him on the brief was William Keith
Dozier, and Paulson & Coletti Trial Attorneys PC, Portland.
Thomas M. Christ, Cosgrave Vergeer Kester LLP,
Portland, filed the brief for respondent on review Carol
Colip. With him on the brief was Julie A. Smith.
Kathryn H. Clarke, Portland, filed the brief for amicus
curiae Oregon Trial Lawyers Association.
NAKAMOTO, J.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court. The decision of the Court of Appeals is affirmed.
Case Summary: In a personal injury action arising out of a motor vehicle
accident, plaintiff and defendant/cross-claimant both alleged that the Oregon
Department of Transportation (ODOT) and other governmental entities had con-
tributed to the accident by failing to correct hazardous conditions at the highway
intersection where the accident occurred. ODOT moved for summary judgment
on the ground that it was immune from liability under ORS 30.265(6)(c), a pro-
vision of the Oregon Tort Claims Act that immunizes governmental entities from
tort liability for “the performance of or the failure to exercise or perform a dis-
cretionary function or duty.” ODOT argued that any failure on its part to correct
the hazardous conditions at issue was the necessary result of a discretionary
policy choice by ODOT to seek highway safety construction funding from the leg-
islature only for sites that were highly rated on a crash history index known as
the Safety Priority Index System (SPIS). In support of its motion, ODOT submit-
ted a highway engineer’s declaration describing the role of the SPIS in ODOT’s
highway safety construction funding process and stating that the site where the
allegedly hazardous conditions were present was not highly rated on the SPIS.
Although plaintiff and cross-claimant submitted evidence suggesting that a high
SPIS ranking was not the only path to obtaining funding for highway safety
improvements, the trial court granted ODOT’s motion for summary judgment.
The Court of Appeals reversed on the ground that the summary judgment record
failed to establish that all of the improvements in question were considered and
rejected in the SPIS-driven funding process that was at the center of ODOT’s
discretionary-function immunity theory. Held: Given the summary judgment
record, a genuine issue remains with respect to a fact that is essential to ODOT’s
claim of discretionary-function immunity — whether sites that are not ranked
highly on the SPIS index are excluded from ODOT highway safety funding.
The judgment of the circuit court is affirmed in part and reversed in part and
the case is remanded to the circuit court. The decision of the Court of Appeals is
affirmed.
646 Turner v. Dept. of Transportation
NAKAMOTO, J.
In this personal injury action arising out of a motor
vehicle accident, plaintiff Turner contended that defendant
Oregon Department of Transportation (ODOT) had contrib-
uted to the accident by negligently failing to correct haz-
ardous conditions at the highway intersection where he was
injured. In a summary judgment motion, ODOT claimed
immunity from liability under ORS 30.265(6)(c), a provi-
sion of the Oregon Tort Claims Act, ORS 30.260 to ORS
30.300, that immunizes governmental entities from tort lia-
bility for “the performance of or the failure to exercise or
perform a discretionary function or duty.” ODOT’s claim of
immunity rested on the theory that, because it has a policy
of seeking highway safety improvement funding from the
legislature only for the most crash-prone sites in the state
highway system, ODOT’s omission of the crash site from its
appropriation requests amounted to a budget-driven, dis-
cretionary policy decision not to make improvements at the
site. Plaintiff opposed the motion with evidence that ODOT
employees knew that the intersection was dangerous but
had neglected to make improvements by using ODOT’s other
mechanisms for evaluating and funding low-cost highway
safety improvements. Although ODOT prevailed in the trial
court, the Court of Appeals determined that questions of
fact precluded summary judgment in favor of ODOT. Turner
v. Dept. of Transportation, 270 Or App 353, 365-68, 348 P3d
253 (2015).
On review before this court, petitioner ODOT
argues that, when a state agency uses a global process
for setting priorities and allocating limited resources,
discretionary-function immunity attaches and the agency
need not engage in further, particularized decision-making.
But whether or not we agree with ODOT’s proposition in the-
ory, ODOT’s immunity argument rests on the premise that
its crash-based ranking process for appropriation requests
was global—that is, a comprehensive method for determin-
ing which safety improvements to fund—and so its failure
improve the intersection at the crash site may be ascribed to
policy choices ODOT made in its appropriation requests. The
record on summary judgment does not bear out that prem-
ise as a matter of undisputed fact. It follows that ODOT’s
Cite as 359 Or 644 (2016) 647
employment of the ranking process cannot resolve the issue
of ODOT’s immunity under ORS 30.265(6)(c) as a matter of
law. Therefore, the trial court erred in granting summary
judgment for ODOT on that ground, and we affirm the deci-
sion of the Court of Appeals.
I.  FACTS AND PROCEDURAL HISTORY
We present and consider the facts in the light most
favorable to the nonmoving parties. Towe v. Sacagawea, 357
Or 74, 77 n 2, 347 P3d 766 (2015). Collins Street in the City
of Depoe Bay runs into State Highway 101. In 2008, when
the accident in question occurred, motorists driving west on
Collins Street could turn onto Highway 101 in either direc-
tion. Entering the highway was difficult, and particularly
so for those turning left, to the south. The topography of the
area and vehicles parked on the highway limited the line of
sight needed to safely enter the highway.
In 2008, as defendant Colip was turning left from
Collins Street onto Highway 101, her car collided with plain-
tiff, who was on his motorcycle riding north on Highway 101.
Plaintiff was severely injured in the accident.
Three governmental entities had the ability to
change the conditions at the intersection before the accident
occurred: ODOT, which owns Highway 101; Lincoln County,
which owns the relevant part of Collins Street; and the city,
where the intersection is located. ODOT, the county, and the
city had been aware of the safety problem at the intersection
since at least the mid-1990s. For example, a 1995 ODOT
memorandum concerning the impacts that a proposed real
estate development in the area would have on roadways
stated that there was a significant accident history at the
intersection:
“The 1992 accident rate for an urban, primary system,
non-freeway is 3.69. The actual accident rate for this area,
from 200 feet north of Clarke to 100 feet south of Bay Street,
is 4.61. As you can see, this is above the state average. * * *
“My interpretation of the accident summary database
shows a significant accident history in the Depoe Bay area.
Bay Street and Collins Street intersection areas seem to
have a significantly higher amount of accidents than other
intersections in the downtown area. * * *
648 Turner v. Dept. of Transportation
“* * * * *
“An interim solution, regardless of the development size
or staging, to increase safety on the highway, is to elimi-
nate egress from Collins Street. This would eliminate the
visibility restrictions to the south currently experienced
by motorist[s] entering the highway. Region 2 Traffic
Operations, Lincoln County, and the City of Depoe Bay
Engineers should review proper signing and delineation/
barricade techniques restricting the westbound motorists
on Collins Street.”
That same year, Owings, the city’s superintendent for streets
and public works, wrote to the city council and ODOT, warn-
ing them that turning south at the intersection was “very
dangerous.” Later, the concerns addressed in the ODOT
memorandum and Owings’s letter were relayed to county
supervisors, including the county public works director.
And, ODOT, the county, and the city had even dis-
cussed, at length, possible solutions for the Collins Street
intersection. Those possibilities included restricting or
reconfiguring parking on Highway 101 at the intersec-
tion, prohibiting left-hand turns from Collins Street onto
Highway 101, and closing access to the highway from Collins
Street altogether. All three entities had also participated in
the city’s development of a transportation plan (2000), and a
subsequent “refinement” plan (2005), both of which included
proposals for improvements aimed at the line-of-sight prob-
lem at the intersection.
Until the 2008 accident that is at the center of this
case, however, none of the proposed improvements had been
specifically planned, funded, or implemented by ODOT or
the other governments. If ODOT had decided to undertake
one or more of the suggested improvements, the project
would have needed funding.
The largest amount of funding that ODOT had for
highway safety improvement projects derived from a mul-
tistep process that ODOT used for seeking and obtaining
appropriations from the legislature for transportation proj-
ects of various sorts, including highway safety improve-
ments. Kargel, the traffic engineer for ODOT’s Region 2 that
included Lincoln County, explained in a declaration that,
Cite as 359 Or 644 (2016) 649
through ODOT’s Statewide Transportation Improvement
Program (STIP), ODOT selected highway safety projects to
be included on a list of projects for ODOT’s biennial bud-
get request. ODOT did that by using a computerized crash-
history list, the Safety Priority Index System (SPIS), “and
according to a cost/benefit analysis of improvements to high
accident sites.” Sites that fell in the top five percent of the
SPIS or that were highly rated “based on a cost/benefit
analysis” were included in a list of potential highway safety
construction projects to be included in the STIP Safety
Budget submitted to the legislature as part of ODOT’s bien-
nial funding request. ODOT did not request any funding to
address the line-of-site problem at the Collins Street inter-
section through the STIP process.
ODOT also had other sources of funding to
enhance safety. In her deposition, Kargel added that small
amounts of money from an ODOT maintenance manager’s
maintenance budget were available. She acknowledged
that the maintenance manager for the Depoe Bay area
could have used money to remove parking spaces at the
intersection of Collins Street and Highway 101, for exam-
ple. And, Kargel explained, if an intersection was not on
the SPIS list, ODOT could still make a decision to fund
low-cost physical improvements at that intersection, such
as by removing or changing the parking available near the
intersection.
If a safety improvement project was not selected for
funding through the STIP process, an alternative Highway
Safety Engineering Quick Fix program was available,
beginning in 2007. The Quick Fix program had “a dedicated
bucket of safety funds” that was specifically designed for
highway safety problems that are “best addressed by low-
cost engineering countermeasures without going through
the formal STIP project development process.” ODOT’s
regional offices were required to administer the Quick Fix
program. The record contains no evidence that ODOT con-
ducted a cost/benefit analysis for improvements at the Collin
Street intersection or analyzed whether a low-cost solution
for improving the intersection was suitable under the Quick
Fix program.
650 Turner v. Dept. of Transportation
In his personal injury action against Colip, ODOT,
the city, and the county, plaintiff alleged that the accident
resulted from Colip’s negligence in failing to properly look
out for and yield the right of way to oncoming traffic and
from the three government entities’ negligence in failing
to take steps to correct or warn of the unsafe conditions at
the intersection. Colip filed cross-claims for contribution
against the three government entities, reiterating plaintiff’s
allegations of negligence and adding allegations that were
somewhat broader. Generally, plaintiff’s and Colip’s allega-
tions of negligence with respect to ODOT focused on ODOT’s
failure to prohibit diagonal parking along the highway at
the Collins Street intersection, restrict left turns onto the
highway from Collins Street, post signs on Highway 101
warning drivers about the intersection, close the intersec-
tion to traffic, or take other measures to increase visibility
at the intersection or to otherwise correct or mitigate the
sight-distance problem.
In their answers to plaintiff’s complaint and
Colip’s cross-claims, the three government entities raised
discretionary-function immunity, ORS 30.265(6)(c), and
the applicable statute of limitations, ORS 30.275(9), as
affirmative defenses, and they eventually sought summary
judgment against plaintiff on those grounds. Initially, the
trial court granted their motions on the statute of limita-
tions ground, without addressing discretionary-function
immunity. Later, after the trial court declined to hold that
the statute of limitations also barred Colip’s cross-claims,
the three government entities moved for summary judg-
ment on those cross-claims on the basis of discretionary-
function immunity. Each government entity asserted a
separate theory as to why its own inaction with respect to
the Collins Street intersection amounted to a discretionary
policy decision that was immune from liability under ORS
30.265(6)(c), and each submitted evidence in support of its
theory.
Ultimately, the trial court granted the motions for
summary judgment on Colip’s cross-claims. At the close of
the hearing, the court explained that, in its view, all three
entities had been engaged in an ongoing planning process
concerning the problems at the intersection and that their
Cite as 359 Or 644 (2016) 651
efforts in that process brought their actions (or inactions)
within the protection of the discretionary-immunity stat-
ute. Based on its summary judgment rulings, the trial court
issued a limited judgment for the three government enti-
ties, effectively dismissing them from the case. Plaintiff and
Colip appealed from that limited judgment, arguing that
the trial court had wrongly decided both the statute of lim-
itations and discretionary-function immunity issues.
The Court of Appeals affirmed in part and reversed
in part. Turner, 270 Or App at 372. For reasons that are
irrelevant to our review, it concluded that the trial court
had erred in granting summary judgment for the govern-
ment entities based on the statute of limitations. Id. at 362-
63. And, although the court concluded that the county had
shown that there were no material issues of fact regarding
its immunity from liability under the discretionary-function
immunity provision, it held that the applicability of that pro-
vision could not be resolved as a matter of law with respect
to ODOT and the city. Id. at 363-72. Of particular relevance
here, the Court of Appeals rejected ODOT’s contention,
which we describe more fully below, that the process that
ODOT had employed to prioritize and select highway con-
struction projects for its appropriation request immunized
it from liability as a matter of law for any and all of the
omissions that plaintiff and Colip had identified as negli-
gence. The Court of Appeals concluded that that theory was
unavailing when the record on summary judgment “d[id] not
show that all of the Highway 101 modifications in question
were considered and rejected in the [crash-history ranking]
process or that other available processes were used to decide
to not make those changes.” Id. at 367.1
1
The Court of Appeals also was unpersuaded by the city’s contention that
its adoption of the aforementioned transportation plan and refinement plan
amounted to policy choices that immunized it from liability for its inaction with
respect to the hazard at the Collins Street intersection. The court concluded that
the transportation and refinement plans constituted evidence that the city had
made a decision to do something to mitigate the hazard at the intersection, but,
in the absence of evidence that it had taken action to effectuate that decision,
discretionary immunity was not available. 270 Or App at 368-70. The Court of
Appeals thereby rejected the trial court’s reasoning that evidence of the partici-
pation of all three government bodies in an ongoing planning process to mitigate
the hazard was sufficient to establish discretionary immunity as a matter of law
for the actions and omissions alleged in the complaint and cross-complaint. Id.
652 Turner v. Dept. of Transportation
Of the parties that had reason to be dissatisfied
with the Court of Appeals decision, only ODOT sought
review. This court allowed review to address ODOT’s con-
tention that the Court of Appeals had erroneously limited
the discretionary-function immunity to which state agencies
are entitled under ORS 30.265(6)(c).
II. DISCUSSION
A.  Discretionary Immunity
Before we turn to the particulars of ODOT’s claim
of immunity, we briefly describe the relevant legal land-
scape. Public bodies in Oregon are liable for the torts of
their employees and agents, with certain exceptions.
ORS 30.265(1). One exception is the so-called “discretion-
ary function” exception, set out at ORS 30.265(6)(c). It
provides:
“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.”
What constitutes a “discretionary function or duty”
for purposes of ORS 30.265(6)(c) has been the subject of
considerable discussion in this court. In a nutshell, govern-
mental conduct amounts to performance of a “discretionary
function or duty” if it “is the result of a choice among com-
peting policy considerations, made at the appropriate level
of government.” Garrison v. Deschutes County, 334 Or 264,
273, 48 P3d 807 (2002). It is important to understand that
not all decisions by governmental actors involve such policy
choices. Discretionary-function immunity does not extend to
“routine decisions made by employees in the course of their
day-to-day activities, even though the decision involves a
choice among two or more courses of action.” Lowrimore
v. Dimmitt, 310 Or 291, 296, 797 P2d 1027 (1990). As this
court explained in McBride v. Magnuson, 282 Or 433, 437,
578 P2d 1259 (1978),
Cite as 359 Or 644 (2016) 653
“insofar as an official action involves both the determina-
tion of facts and simple cause-and-effect relationships and
also the assessment of costs and benefits, the evaluation of
relative effectiveness and risks, and a choice among com-
peting goals and priorities, an official has ‘discretion’ to the
extent that he has been delegated responsibility for the lat-
ter kind of value judgment.”
The accepted rationale for providing discretionary-
function immunity—separation of powers of coordinate
branches of government, see Stevenson v. State of Oregon,
290 Or 3, 10, 619 P2d 247 (1980)—explains the particu-
lar focus on governmental policy choices and also provides
insight into the immunity inquiry. A governmental actor
performs discretionary functions and duties when exercis-
ing delegated responsibility for making decisions commit-
ted to the authority of that particular branch of government
that are based on assessments of policy factors, such as the
social, political, financial, or economic effects of implement-
ing a particular plan or of taking no action. As this court
has explained, “[w]hen a governmental body by its officers
and employees makes [a policy] decision, the courts should
not, without clear authorization, decide whether the proper
policy has been adopted or whether a given course of action
will be effective in furthering that policy.” Id.B.  ODOT’s Summary Judgment Motion
In ODOT’s motion for summary judgment against
Colip, its discretionary-function immunity claim centered
on its use of crash-history rankings to select safety improve-
ment projects for funding requests from the legislature.2
ODOT explained that, as a matter of policy, it has chosen
to allocate its limited highway safety improvement funds to
sites selected under the STIP. ODOT argued that its use of
SPIS rankings and the STIP process to select projects for
2
As noted above, ODOT raised discretionary-function immunity in both
of its motions for summary judgment—one against plaintiff and one against
defendant/cross-plaintiff Colip. Although the focus of our analysis rests on the
latter motion, which the trial court actually decided on the basis of ODOT’s
claim of discretionary-function immunity, given the trial court’s reasoning and
the Court of Appeals decision, our review has implications for ODOT’s summary
judgment motion against plaintiff as well, and plaintiff therefore has partici-
pated in the arguments.
654 Turner v. Dept. of Transportation
funding means that ODOT’s non-action with respect to a
site that does not qualify under the SPIS metric is the result
of a number of high-level policy choices: (1) a decision to
use the agency’s limited budget on selected projects rather
than spreading the money evenly over the entire highway
system; (2) a decision to select projects according to rela-
tive dangerousness of the site; and (3) a decision to assess
relative dangerousness based on crash statistics indexed in
the SPIS. Taken together, ODOT asserted, those decisions
constitute a global policy decision not to fund improvements
at sites that are not within the top five percent of the SPIS
or rated highly based on a cost-benefit analysis—a policy
decision that falls within the protection of the discretionary-
immunity statute. That policy decision implicated the
Collins Street intersection, ODOT added, because it did not
rank in the top five percent of the SPIS or qualify under the
cost/benefit alternative at the relevant time: Even if ODOT
was aware of the hazard at the intersection and wished to
take steps to mitigate it, ODOT argued, the SPIS-to-STIP
budgeting process meant that no mitigation project would be
funded at the site.
When ODOT moved for summary judgment in the
trial court, it supported its motions with a single declara-
tion, Kargel’s declaration. In it, Kargel described the STIP
and SPIS processes in the following terms:
“Highway safety construction projects are selected
according to high-level ODOT budgetary policy using a
computerized safety ranking process known as Safety
Priority Index System (SPIS), and according to a cost/
benefit analysis of improvements to high accident sites.
“ODOT prioritizes safety construction funds primar-
ily on crash history as reflected in the SPIS safety sta-
tistics and the projected safety benefit that a project will
have on that crash history. Specifically, it is ODOT policy
to include the worst 5 percent SPIS-rated accident sites,
as well as other high accident rated sites based on a cost/
benefit analysis, in a list of potential highway safety construc-
tion improvement projects in the Statewide Transportation
Improvement Program (STIP) Safety Budget.
“STIP Safety Budget funding requests for highway
safety construction projects selected in this manner
Cite as 359 Or 644 (2016) 655
according to ODOT policy are included in the State Highway
Construction Plan (Plan) using the list of projects from the
STIP safety budget. The State Highway Construction Plan
is then submitted for funding to the Oregon Legislature
with the Governor’s proposed biennial budget pursuant to
ORS 184.658.”
Kargel’s declaration also indicated that the Collins Street
intersection had not ranked in the top five percent of the
SPIS in 2008 and that the intersection had “not been consid-
ered a high-accident site before 2008”:
“The crash rates for the five years before the 2005
Refinement Plan study was published show that Depoe
Bay rates were well below the state averages every year.
No sites in Depoe Bay were in the top 5 percent of histori-
cal accident sites listed in the SPIS records before June 27,
2008, and only two accidents were reported for the Collins
Street and Highway 101 intersection in the five years before
the Refinement Plan study.”
Later, ODOT added small portions of Kargel’s depo-
sition testimony to the summary judgment record, includ-
ing Kargel’s statement that the non-inclusion of the Collins
Street intersection at the top of the SPIS rankings amounted
to a decision that ODOT highway safety construction money
“couldn’t have been spent for improvements” there. The por-
tions of Kargel’s testimony that ODOT added to the record
did not expand on the explanation of the operation of the
SPIS-to-STIP process on which ODOT relied.
Colip opposed the motion for summary judgment,
arguing that ODOT’s theory was legally unsound and that,
in light of the material she had submitted as part of the
summary judgment record, ODOT had failed to establish,
as a matter of law, that it was immune from liability for the
alleged negligent omissions under ORS 30.265(6)(c). Among
other things, Colip submitted:
1.  An email from Kargel to another ODOT
employee, Cantrell, describing the SPIS-to-STIP process,
which included a statement that
“[o]utside of the SPIS, other methods of flagging potential
problem areas include citizen phone calls, local jurisdic-
tional concerns, or planned construction projects where
656 Turner v. Dept. of Transportation
safety reviews are done as part of the design process.
Roadway improvements at these areas are prioritized
along with SPIS sites based on Benefit/Cost calculations
and available funding sources.”
2. ODOT’s Highway Safety Program Guide
(September 2010), which includes, among other things, a
statement that projects may become eligible for STIP fund-
ing by meeting one of three criteria—a top ten percent SPIS
ranking,3 a cost-benefit ratio of 1.0 or greater, or justifica-
tion by a so-called “risk narrative.” The guide also contains
descriptions of the SPIS and of the method for determining
a project’s cost-benefit ratio, along with a brief statement
about risk narratives—that they “shall not be used to jus-
tify highway safety projects except for projects where crash
trends may not be evident, such as bicycle or pedestrian
improvements.”
3.  An ODOT bulletin announcing that, effec-
tive September 20, 2007, ODOT had adopted the Highway
Safety Engineering Quick Fix Program that provided ODOT
regions with limited funds to implement low-cost (under
$50,000) safety improvements without going through the
STIP process.
4.  A compilation of photographs showing that,
within a few months of the accident that caused plaintiff’s
injuries, construction had been undertaken to create “bump
outs” at the Collins Street intersection, presumably to
improve the line of sight and presumably by ODOT.
5.  Portions of Kargel’s deposition testimony in
which she acknowledged that there were mechanisms
3
Kargel’s affidavit and deposition testimony refer to the top five percent of
the SPIS as a criterion for funding eligibility, while the 2010 ODOT Highway
Safety Program Guide that Colip submitted into the record refers to the crite-
rion as the top ten percent of the SPIS. The difference seemingly arises from the
different time period that the Program Guide speaks to (notably, the 2007 Quick
Fix Program bulletin that Colip submitted into the record refers to the criteria in
the Highway Safety Program Guide as “SPIS top 5%.”). In the trial court, ODOT
did not challenge the relevance of the 2010 Highway Safety Program Guide to its
theory of discretionary-function immunity as it pertains to its actions in 2008
(the time of the accident) and earlier. In fact, it chose to supply the 2010 Program
Guide, rather than an earlier version, in response to plaintiff’s discovery request
for “documents describing the factors, procedures or analysis * * * by which defen-
dant selects highway safety construction projects.”
Cite as 359 Or 644 (2016) 657
outside of the SPIS, such as requests from citizens, ODOT
maintenance personnel, and other public bodies, that could
trigger an investigation into whether a safety improvement
is needed; that ODOT could make “minor” or “low-cost”
improvements to portions of a roadway that are not in listed
in the STIP; that ODOT sometimes used money from main-
tenance and general budgets to fund such improvements;
and that removing parking spaces or reconfiguring parking
on Highway 101 at Collins Street would qualify as low-cost.
Colip also submitted documentary evidence, includ-
ing emails, meeting minutes, and planning documents sug-
gesting that ODOT employees had been aware of the line-
of-sight problems at the intersection for a number of years,
had offered recommendations relating to the problem, and
had participated in planning efforts, along with represen-
tatives of the city and county, that resulted in proposals for
addressing the danger. Plaintiff had submitted many of the
same materials in opposition to ODOT’s motion for sum-
mary judgment against his claims.
As noted, the Court of Appeals reversed the trial
court’s grant of summary judgment. It likened the circum-
stances to those in Vokoun v. City of Lake Oswego, 335 Or
19, 56 P3d 396 (2002). In that case, this court rejected the
defendant city’s contention that its adoption of a capital
improvement plan that did not include fixing the storm drain
problem at issue in the case amounted to a policy decision
for which it was immune under ORS 30.265(6)(c). Noting
that the decision in Vokoun appeared to turn on (1) evidence
that the city had a supplemental budget system for paying
for repairs outside of the capital improvement plan and
(2) the fact that there was no evidence that the city had con-
sidered using a supplemental budget to pay for the repairs,
the Court of Appeals in the present case looked for similar
alternatives to the SPIS-to-STIP funding process on which
ODOT relied. The court concluded that the summary judg-
ment record failed to establish “that all of the Highway 101
modifications in question were considered and rejected in
the STIP process or that other available processes were used
to decide to not make those changes. 270 Or App at 367.
Summary judgment was not proper, the court concluded,
because ODOT had failed to show that it had made policy
658 Turner v. Dept. of Transportation
choices for which ODOT was entitled to immunity. Id. at
368.
C.  Arguments on Review
Before this court, ODOT contends that the Court
of Appeals’ decision erroneously makes the availability of
discretionary-function immunity depend on the public body
showing that it gave particularized consideration to every
hazard and potential improvement at the site in question.
ODOT asserts that, when a public agency has very broad
responsibilities and limited resources, it should be entitled
to discretionary-function immunity when it uses a non-
particularized and global process, such as the SPIS-to-STIP
process, to decide that it will not allocate its resources to
lower-priority sites. That is so, ODOT argues, because deci-
sions involving priority-setting and resource allocation are
the essence of policy discretion and because denying a pub-
lic body immunity for such decisions would result in utter
paralysis: ODOT, for example, would have to spend all of
its resources individually cataloging potential roadway haz-
ards, leaving nothing to actually fix them.
Plaintiff and Colip have different answers to ODOT’s
argument. Plaintiff suggests that, in fact, discretionary-
function immunity is not available for the kind of decision-
making process that ODOT describes. Plaintiff observes
that the crux of ODOT’s theory of budget-driven discretion
is that, by employing a crash-history driven process to select
hazardous sites for improvement, ODOT made a discre-
tionary policy choice not to take action at sites that do not
exhibit the required crash history. Yet, plaintiff notes, under
this court’s cases, the state has a nondiscretionary duty to
make state-owned highways reasonably safe for members
of the public who use them in a manner that is consistent
with their purpose. See generally Little v. Wimmer, 303 Or
580, 589, 739 P2d 564 (1987) (finding legislative intent to
impose such a duty in ORS 366.205(2) and ORS 366.290(1));
Hughes v. Wilson, 345 Or 491, 497-98, 199 P3d 305 (2008)
(holding that counties have a duty to make roads that they
own and control reasonably safe for the general public). In
light of that nondiscretionary duty, plaintiff argues, ODOT
may have had discretion to choose the means by which to
Cite as 359 Or 644 (2016) 659
make the roads reasonably safe, but it had no discretion as
to whether to fulfill that duty. Plaintiff relies on Garrison v.
Deschutes County, 334 Or 264, 274, 48 P3d 807 (2002) (“The
decision whether to protect the public by taking preventive
measures, or by warning of a danger, if legally required, is
not discretionary; however, government’s choice of means for
fulfilling that requirement may be discretionary”) (empha-
sis in original). See also Hughes, 345 Or at 496 (“range of
permissible choices does not * * * include the choice of not
exercising care”). And because ODOT lacks discretion not to
take action with respect to a particular hazard or site, plain-
tiff concludes, ODOT cannot claim discretionary-function
immunity for such a decision. However, we do not reach
plaintiff’s argument, because Colip’s argument, which takes
a different tack, is well-taken.
Colip calls into question whether ODOT has offered
a factual showing that even makes relevant ODOT’s basic
premise—that a public body’s budget-driven choice not to
act on a particular hazard or site, because it has limited
resources and decides that other hazards or sites are more
important, is entitled to discretionary-function immunity.
Colip’s argument to this court is that ODOT has failed to
establish that, as a matter of law, the “global” SPIS-to-STIP
process on which ODOT’s entire theory rests in fact was a
policy decision not to fund or implement improvements at
the Collins Street intersection.
In that regard, Colip observes that a necessary
element of ODOT’s theory is the idea that sites that do
not rank at the top of the SPIS index do not get funded by
ODOT.4 Colip contends that the summary judgment record
does not support that element of the theory at all, much
4
In so arguing, Colip sets aside ODOT’s additional mention of “other
high accident rated sites based on a cost/benefit analysis.” We agree with that
approach: ODOT never explains how that alternative fits into its SPIS-to-STIP
prioritization theory, and, as discussed below, the scant evidence in the summary
judgment record that speaks to the cost-benefit option does not support the idea
that the option depends on SPIS crash-history ranking.
An additional point that is worth making at this juncture is that, when
Kargel mentioned “other high accident rated sites based on a cost/benefit analy-
sis,” she was not referring to some entirely separate “cost-benefit” metric. Her
declarations that were specific to the Collins Street intersection only pertained to
the area’s crash history, as recorded in the SPIS.
660 Turner v. Dept. of Transportation
less support it as a matter of law. Colip points to evidence
in the record—specifically, Kargel’s deposition testimony
and her email to Cantrell—that shows that a site can be
identified for consideration in the STIP process by means
other than a top-five-percent ranking on the SPIS. Colip
also notes that ODOT’s Highway Safety Program Guide,
which is part of the record, shows that a project can actually
qualify for STIP listing based on criteria other than a top-
five-percent SPIS ranking—specifically, by having a “cost-
benefit ratio of 1.0 or greater” or through a “risk narrative.”
Finally, Colip argues that evidence in the record suggests
that safety improvement funding for some “minor” or lower
cost projects may be obtained outside of the STIP process.
Colip particularly adverts to ODOT’s bulletin announcing
the “Quick Fix” program and Kargel’s deposition testimony
that “small amounts of money” may be available from main-
tenance and general budgets. Colip contends that at least
some of the safety improvements mentioned as possibilities
in the complaint and cross-complaint—specifically, parking
changes and signage on Highway 101—might have quali-
fied for such out-of-STIP funding. Colip also points to photo-
graphs in the record showing that improvements had been
undertaken at the Collins Street intersection within a few
months of the collision of plaintiff’s motorcycle and Colip’s
car, presumably by ODOT and presumably with funds that
had not been obtained through the recent SPIS-to-STIP
process. In light of all of that evidence, Colip argues, the
factual underpinning of ODOT’s immunity claim is ques-
tionable, at best, and summary judgment should not have
been granted.
ODOT responds that Colip’s evidence of alternatives
to the crash-history-based STIP process does not support
the point that Colip wishes to make. According to ODOT,
that is because the identified alternatives to the SPIS-to-
STIP budgeting process all ultimately depend on the STIP
process and the SPIS crash-history index that is its heart.
In support of that contention, ODOT generally adverts to
the 2010 Highway Safety Program Guide and the Quick Fix
Program bulletin that Collip had introduced into the sum-
mary judgment record. It acknowledges that, for that pur-
pose, the record is less than ideal.
Cite as 359 Or 644 (2016) 661
In fact, as explained below, the record is far from
ideal for purposes of ODOT’s summary judgment motion.
For somewhat different reasons than those articulated
by the Court of Appeals, we conclude that ODOT failed to
establish a lack of genuine issues of fact for trial and that
it was entitled to judgment based on discretionary-function
immunity as a matter of law.
D.  Whether ODOT Was Entitled to Summary Judgment
Part of ODOT’s claim of immunity is that, as a mat-
ter of discretionary policy, sites are included in appropria-
tion requests and are funded through STIP based on suffi-
ciently high SPIS rankings. If that were ODOT’s singular
position, then logically, there would be no need for ODOT to
respond to Colip’s evidence that there are ways, other than
a high SPIS ranking, to identify sites for funding consider-
ation in the STIP process.
But ODOT makes a bolder claim: the SPIS-to-STIP
process constitutes a global policy decision not to fund safety
improvements at sites that are not highly ranked on the
SPIS index. To succeed in making that claim, ODOT was
obligated to respond to the evidence in the record that indi-
cates that, for the kind of improvements suggested in plain-
tiff’s complaint and Colip’s cross-complaint, (1) a high SPIS
ranking was not the only path to inclusion in the biennial
STIP listing and (2) inclusion in the STIP listing was not
the only path to funding by ODOT. ODOT failed to do that.
We turn, first, to the evidence that is relevant to
the latter proposition. As noted above, to counter ODOT’s
suggestion that funding for highway safety projects depends
on their inclusion in the STIP list, Colip submitted several
pieces of evidence (other than evidence that ODOT was
aware of the hazard at the Collins Street exit): (1) an ODOT
bulletin announcing a “Quick Fix” program that would pro-
vide some limited funding to address immediate highway
safety concerns, without the necessity of going through
the two to six year-long STIP process, and (2) Kargel’s
deposition testimony acknowledging that ODOT can fund
“minor” or “low-cost” highway safety improvements outside
of the STIP, through maintenance or general budgets, and
662 Turner v. Dept. of Transportation
that removing parking spaces or reconfiguring parking on
Highway 101 at Collins Street would qualify as low-cost.
ODOT does not attempt to meet the latter evidence with any
evidence of its own, but it argues that ODOT’s immunity for
a programmatic exercise of its policy discretion should not
be lost merely because it makes some small amount of fund-
ing available for emergencies. For reasons that will become
clear, we need not address that concern.
As to Colip’s evidence of a “Quick Fix” alterna-
tive to STIP funding, ODOT points to the Quick Fix bulle-
tin itself as showing that eligibility for that program also
depends on SPIS crash history rankings. We assume that
ODOT refers to a statement in the bulletin that, to be cho-
sen for funding under the Quick Fix program, projects shall
“meet the guidance outlined in the ODOT Highway Safety
Program Guide (B[enefit]/C[ost], SPIS top 5%, SIP 4 or 55
or Risk Narrative).”6 If so, then ODOT is placing all of its
chips on a single factual proposition—that, at least as they
would apply to the improvements that Colip alleged should
have been made, all of the alternative criteria for inclusion
in the STIP list ultimately depend on SPIS crash-history
rankings. If the evidence in the summary judgment record
establishes the truth of that proposition as a matter of law,
then Colip’s evidence that those alternatives exist does not
undermine ODOT’s theory that its use of the SPIS-to-STIP
process to select projects for funding was a policy decision
that dictated non-action with respect to lower-SPIS-ranked
sites like the Collins Street intersection.
As it turns out, the evidence in the record is insuf-
ficient for that purpose. The 2010 Highway Safety Program
Guide appears to be the only evidence that addresses the
STIP selection process in any detail. The Program Guide
states:
“Projects shall meet one of the following criteria for eli-
gibility for Highway Safety Program funds:
“*  Positive Benefit/Cost (B/C) Ratio of 1.0 or greater
5
The SIP index mentioned here apparently was relevant, at one time, in
ODOT’s process for prioritizing highway safety construction projects.
6
We have found no other material in the Quick Fix Bulletin or in the sum-
mary judgment record as a whole that appears to be relevant to ODOT’s claim.
Cite as 359 Or 644 (2016) 663
“*  Top 10% Safety Priority Index System; or
“*  Justified by Risk Narrative[.]”
Only one of the three alternative criteria expressly relies
on a high crash-history ranking. The question remains
whether there is evidence that the other two criteria also
rely in some fashion on a high SPIS ranking, or otherwise
are made irrelevant to the Collins Street intersection and
the improvements that plaintiff and Colip mentioned in
their claims.
The requirement of a positive “Benefit/Cost Ratio”
of 1.0 or greater is explained briefly in the Program Guide.
According to the guide, the Benefit/Cost Ratio is “the ratio
of the economic value of the long-term reductions of target
crashes to the estimated cost of the improvement.” The doc-
ument describes how to determine costs and explains that
the expected reduction in crashes (the “CRF”) should be
drawn from a document maintained by ODOT that lists
CRF for various types of improvements. The only mention of
crash history data in the explanation is an admonition that
“3-5 years of the most recent crash data available should
be used for the analysis.” Although, based on that minimal
explanation, we can imagine that it might be easier for a site
with a high accident history to generate a higher Benefit/
Cost Ratio under those instructions, there is nothing in the
explanation that suggests that a top-five-percent SPIS rank-
ing or identification as a “high accident site” would be nec-
essary to achieving a positive Benefit/Cost Ratio of at least
one—particularly for some of the low cost improvements that
Colip and plaintiff had mentioned in their claims. In short,
the evidence in the record does not support ODOT’s sugges-
tion that all possible routes to listing in the STIP ultimately
were controlled by a policy decision to limit STIP funding to
sites with top-five-percent or, at least, “high” crash-history
rankings.
The relevance of a site’s crash history ranking to the
“risk narrative” alternative is more obscure. The Program
Guide—the only evidence in the summary judgment record
that speaks to the question—describes the risk narrative
alternative in the following terms:
664 Turner v. Dept. of Transportation
“The Risk Narrative Form is a way to justify a project
based on the safety hazard at a location that does not have
available motor vehicle crash records or would typically not
show evidence of a safety problem through crash records.
Pedestrian and bicycle safety improvements are often jus-
tified by a risk narrative because they do not necessarily
have significant crash history but have the potential for
severe or fatal injury crashes. Safety projects for improv-
ing safety of motor vehicles should normally use the ben-
efit cost analysis because they typically would have crash
records associated with a location or segment of roadway.
* * * Risk Narratives may not be used to justify roadway
safety projects that would typically display crash trends
but few or no crashes exist. A Risk Narrative (RN) should
only be used when potential exists for high severity crashes
and the nature of the crashes are such that they happen so
sporadically that a crash history may not exist.”
ODOT suggested at oral argument that risk narratives per-
tain to improvements for bicyclists and pedestrians. ODOT’s
point would appear to be that, because Colip’s and plaintiff’s
claims address safety hazards at a location for which crash
records are available and of a kind that would be made evi-
dent by crash records, the risk narrative alternative is irrel-
evant to the present question and cannot be used to place an
improvement project for the crash site into the STIP.
We disagree. It is at least arguable that the safety
hazard at the Collins Street intersection was one for which
there was a potential for high-severity crashes of a sort
that “happen so sporadically that a crash history may not
exist.” Whether to accept, as appropriate, a risk narrative
pitched in that fashion would be a matter to be decided by
an ODOT employee with the task of applying the policy set
out in the Program Guide. And although it is possible, and
perhaps even likely, that that employee would reject such a
pitch, the decision to do so would not be a direct application
of a high-level policy choice regarding the necessity of crash-
history data but, rather, a determination that the conditions
for application of that policy choice were not present. In the
end, the material in the Program Guide describing the risk
narrative alternative does not exclude that alternative from
the range of possibilities for including the improvements at
issue in the STIP list.
Cite as 359 Or 644 (2016) 665
On this summary judgment record, then, there at
least is a possibility that inclusion in the STIP could have
been obtained through the risk narrative and Benefit/Cost
Ratio alternatives to the SPIS crash-history ranking crite-
rion and that those alternative criteria did not depend on
the SPIS. ODOT therefore has not established, as a matter
of law, that the kinds of improvements that Colip and plain-
tiff mentioned in their claims were automatically excluded
from funding because of the Collins Street intersection’s
failure to rank in the top five percent of the SPIS index or
to be otherwise considered a “high accident site.” Insofar as
that factual proposition is the lynchpin of ODOT’s theory of
discretionary-function immunity, the theory fails.
Because we have determined that ODOT has failed
to establish under the requisite summary judgment stan-
dard a factual proposition that is essential to its affirmative
defense of discretionary immunity based on the STIP selec-
tion process, we need not consider its contention that the
existence of alternative funding sources for minor and emer-
gency improvements (the Quick Fix program and mainte-
nance and general budgets) should not undermine its dis-
cretionary immunity. Neither need we consider its attempts
to distinguish the circumstances of the present case from
those at issue in Vokoun, which, as noted above, the Court of
Appeals relied on in reversing the trial court’s grant of sum-
mary judgment: ODOT’s argument with respect to Vokoun
also relies on the factual proposition, which it has failed to
prove as a matter of law, that ODOT’s global SPIS-to-STIP
process constituted consideration of and a decision against
any improvements at the Collins Street intersection.
It may be that, on a more developed record, ODOT
could have shown that the policy decision on which it relies
in fact did exclude any projects at the Collins Street inter-
section from funding through ODOT. Or it may be that it
could have established, in some other way, that global pol-
icy decisions based on its funding priorities necessarily had
that effect. But the bottom line is that, on this record, a gen-
uine issue of material fact exists as to whether sites that
are not ranked in the top five percent of the SPIS index or
are not considered “high accident sites” are excluded from
ODOT highway safety funding, either through the STIP or
666 Turner v. Dept. of Transportation
other highway safety funds. ODOT’s claim of discretionary-
function immunity depended on such a finding, and the trial
court erred in granting summary judgment to it based on
that claim of immunity.
The judgment of the circuit court is affirmed in part
and reversed in part, and the case is remanded to the circuit
court. The decision of the Court of Appeals is affirmed.