Ramsey v. City of Salem

707 P.2d 1295 (1985)

Elouise RAMSEY, Appellant, v. CITY OF SALEM, an Oregon Municipal Corporation, Respondent.

144789; CA A34199.

Court of Appeals of Oregon.

Decided October 30, 1985.

Argued and Submitted June 12, 1985.

Gregory W. Byrne, Portland, argued the cause and filed the brief for appellant.

William G. Blair, Asst. City Atty., Salem, argued the cause for respondent. With him on the brief was William J. Juza, City Atty., Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Plaintiff fell on a sidewalk and suffered injuries. She alleged that the defendant city was negligent in failing to repair the sidewalk and in failing to warn plaintiff of the danger it presented. The city answered affirmatively that it had no actual or constructive knowledge of the defective condition of the sidewalk, that its lack of knowledge was due to its not having inspected the sidewalk and that the decision not to inspect the sidewalk was an exercise of governmental discretion which is immune from liability under ORS 30.265(3)(c). The trial court agreed with the city, granted its motion for summary judgment and entered judgment in its favor. Plaintiff appeals, and we affirm.

The city relies on Sager v. City of Portland, 68 Or. App. 808, 815, 684 P.2d 600, rev. den. 298 Or. 37, 688 P.2d 845 (1984), where we said:

"* * * 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. "We conclude that the failure of the City to inspect and repair its sidewalks is a discretionary act and immune from liability. * * *"

The quoted statement from Sager was made after a detailed recitation of the applicable law and the facts. We emphasize that Sager does not hold that discretionary acts immunity applies to all decisions by any city employe about whether to inspect *1296 sidewalks. The same distinction between policy judgment and implementation, and the same emphasis on the nature of the decision, the decision-maker and the latter's authority rather than on the substance of the decision, are as applicable here as they are in any other context where the defense of discretionary acts immunity is interposed. See Miller v. Grants Pass Irrigation, 297 Or. 312, 686 P.2d 324 (1984); Stevenson v. State of Oregon, 290 Or. 3, 619 P.2d 247 (1980); Pendergrass v. State of Oregon, 74 Or. App. 209, 702 P.2d 444, rev. den. 300 Or. 162, 707 P.2d 584 (1985).

In this case, as in Sager, the relevant decisions concerning the provision of sidewalk inspection services were made at the city council and other policy making levels as part of the process of adopting the city's budget. We agree with the trial court that, as a matter of law, the city is immune from liability in this action.

Affirmed.