UNIS, J.
Plaintiff sued the City of Portland (City) for personal injury and property damages allegedly caused by the City’s failure to keep a stop sign clear of foliage. The issue presented in this case is the efficacy of city ordinances to exempt the City from liability in such cases. The trial court entered a summary judgment for the City on the basis of the ordinances. The Court of Appeal reversed. We affirm the decision of the Court of Appeals, but on different grounds.
According to plaintiffs complaint, on June 9, 1985, plaintiff rode his motorcycle past a stop sign that was obscured by foliage and collided with a pickup truck in the intersection. Plaintiffs complaint alleged that the City was negligent
“a) In failing to take special attention and necessary action to see that trees and shrubbery did not obscure the face of the sign;
“b) In failing to inspect to insure that the sign was not obscured by foliage;
“c) In failing to discover that the sign was obscured by foliage;
“d) In failing to remove or trim the foliage obscuring the sign; and
“e) In failing to remove or trim back the foliage near the sign to allow for ordinary growth of the foliage without it obscuring the sign.”
In its answer to plaintiffs complaint, the City raised two affirmative defenses. First, it alleged that plaintiff had failed to state a claim, “because the duty to keep foliage from obstructing the visibility of a stop sign rests solely with the person, firm or corporation owning, in possession of, occupying or having control of the premises [abutting or adjacent to the stop sign].” Second, it alleged that it was immune from liability under ORS 30.265(3) (c) of the Oregon Tort Claims Act.
The City also brought a third-party action for indemnity
and contribution against the owners of the property abutting the stop sign.
The City then moved for summary judgment. The City argued that Portland City Code (PCC), Sections 16.26.240(b) and (c),
and 20.40.080 B and C
relieved it of any
duty to keep foliage from obstructing the visibility of a stop sign and imposed that duty instead solely on the abutting property owners. The trial court agreed with the City and entered judgment in its favor.
The Court of Appeals reversed.
Pritchard v. City of Portland,
98 Or App 226, 778 P2d 984 (1989). It determined that “the [City’s] ordinances here make the abutting landowner responsible
and
provided an adequate alternative remedy” and, therefore, exempted the City from liability. 98 Or App at 229 (emphasis in original). Nonetheless, the court held that the exemption did not survive because, in that court’s view, ORS 30.265(1) and ORS 30.300 of the Oregon Tort Claims Act preclude a city from exempting itself from tort liability.
Id.,
98 Or App at 229-31. We granted review.
The City attempts to avoid any common law liability that it may have to maintain within its boundaries the visibility of stop signs, free of obstruction by vegetation,
see Donaca v. Curry County,
303 Or 30, 734 P2d 1339 (1987), on two grounds. First, the City argues, in effect, that it bestowed tort immunity on itself when it enacted PCC Sections 16.26.240 and
former
20.40.050. Those ordinances, the City contends,
“place exclusive responsibility on abutting property owners for the maintenance of visibility of stop signs, free of obstruction by vegetation. These ordinances also impose liability upon the property owners to persons injured by the property owners’ failure to meet their responsibility under the code. Under established Oregon law, the City therefore had no residual duty and was not liable to plaintiff in tort for any injury he might have suffered by reason of an obscured stop sign.”
Second, the City argues that:
“If the City Code provisions do not extinguish the City’s [common law liability] in this case altogether, then the choice made by the City Council to delegate the responsibility and liability to the abutting property owners constitutes the performance of a discretionary function, for which the City is immune from liability [under ORS 30.265(3) (c) of the Oregon Tort Claims Act].”
In response to the first argument, plaintiff contends that the provisions upon which the City relies do not
exempt
the City from liability, but instead impose concomitant responsibilities and liability on abutting property owners. We agree with plaintiff.
Neither PCC 16.26.240 nor
former
PCC 20.40.050 purports to exempt the City from any common law liability that it might have to an injured party for negligent failure to maintain the visibility of a stop sign. Those sections simply require abutting landowners to maintain the visibility of traffic signs and subject them to liability for failure to perform that obligation. The only part of either provision that refers to
the City’s
liability is found in
former
PCC 20.40.050(f), which provided:
“Nothing in this Ordinance shall be deemed to impose any liability upon any member of the City Council or the City, or any of its officers or employees nor to relieve the owner of any private property from the duty to trim trees in accordance with Titles 16,17 and 20 of the Code of the City of Portland.”
That provision merely prevents any term of the ordinance from imposing a
new
liability on the City. For instance, the City would not be liable for a failure by an abutting property owner to obey the ordinance and remove foliage that is obscuring a stop sign. Subsection (f) of
former
PCC 20.40.050, however, does not exempt the City from any liability that it might have to an injured party arising out of the City’s own negligent failure to remove foliage.
In several cases, this court has analyzed the constitutionality under Article I, section 10, of the Oregon Constitution
of a city’s charter or ordinance that explicitly gave the city tort immunity.
Those decisions considered whether the
city had provided the plaintiff with another substantial remedy.
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UNIS, J.
Plaintiff sued the City of Portland (City) for personal injury and property damages allegedly caused by the City’s failure to keep a stop sign clear of foliage. The issue presented in this case is the efficacy of city ordinances to exempt the City from liability in such cases. The trial court entered a summary judgment for the City on the basis of the ordinances. The Court of Appeal reversed. We affirm the decision of the Court of Appeals, but on different grounds.
According to plaintiffs complaint, on June 9, 1985, plaintiff rode his motorcycle past a stop sign that was obscured by foliage and collided with a pickup truck in the intersection. Plaintiffs complaint alleged that the City was negligent
“a) In failing to take special attention and necessary action to see that trees and shrubbery did not obscure the face of the sign;
“b) In failing to inspect to insure that the sign was not obscured by foliage;
“c) In failing to discover that the sign was obscured by foliage;
“d) In failing to remove or trim the foliage obscuring the sign; and
“e) In failing to remove or trim back the foliage near the sign to allow for ordinary growth of the foliage without it obscuring the sign.”
In its answer to plaintiffs complaint, the City raised two affirmative defenses. First, it alleged that plaintiff had failed to state a claim, “because the duty to keep foliage from obstructing the visibility of a stop sign rests solely with the person, firm or corporation owning, in possession of, occupying or having control of the premises [abutting or adjacent to the stop sign].” Second, it alleged that it was immune from liability under ORS 30.265(3) (c) of the Oregon Tort Claims Act.
The City also brought a third-party action for indemnity
and contribution against the owners of the property abutting the stop sign.
The City then moved for summary judgment. The City argued that Portland City Code (PCC), Sections 16.26.240(b) and (c),
and 20.40.080 B and C
relieved it of any
duty to keep foliage from obstructing the visibility of a stop sign and imposed that duty instead solely on the abutting property owners. The trial court agreed with the City and entered judgment in its favor.
The Court of Appeals reversed.
Pritchard v. City of Portland,
98 Or App 226, 778 P2d 984 (1989). It determined that “the [City’s] ordinances here make the abutting landowner responsible
and
provided an adequate alternative remedy” and, therefore, exempted the City from liability. 98 Or App at 229 (emphasis in original). Nonetheless, the court held that the exemption did not survive because, in that court’s view, ORS 30.265(1) and ORS 30.300 of the Oregon Tort Claims Act preclude a city from exempting itself from tort liability.
Id.,
98 Or App at 229-31. We granted review.
The City attempts to avoid any common law liability that it may have to maintain within its boundaries the visibility of stop signs, free of obstruction by vegetation,
see Donaca v. Curry County,
303 Or 30, 734 P2d 1339 (1987), on two grounds. First, the City argues, in effect, that it bestowed tort immunity on itself when it enacted PCC Sections 16.26.240 and
former
20.40.050. Those ordinances, the City contends,
“place exclusive responsibility on abutting property owners for the maintenance of visibility of stop signs, free of obstruction by vegetation. These ordinances also impose liability upon the property owners to persons injured by the property owners’ failure to meet their responsibility under the code. Under established Oregon law, the City therefore had no residual duty and was not liable to plaintiff in tort for any injury he might have suffered by reason of an obscured stop sign.”
Second, the City argues that:
“If the City Code provisions do not extinguish the City’s [common law liability] in this case altogether, then the choice made by the City Council to delegate the responsibility and liability to the abutting property owners constitutes the performance of a discretionary function, for which the City is immune from liability [under ORS 30.265(3) (c) of the Oregon Tort Claims Act].”
In response to the first argument, plaintiff contends that the provisions upon which the City relies do not
exempt
the City from liability, but instead impose concomitant responsibilities and liability on abutting property owners. We agree with plaintiff.
Neither PCC 16.26.240 nor
former
PCC 20.40.050 purports to exempt the City from any common law liability that it might have to an injured party for negligent failure to maintain the visibility of a stop sign. Those sections simply require abutting landowners to maintain the visibility of traffic signs and subject them to liability for failure to perform that obligation. The only part of either provision that refers to
the City’s
liability is found in
former
PCC 20.40.050(f), which provided:
“Nothing in this Ordinance shall be deemed to impose any liability upon any member of the City Council or the City, or any of its officers or employees nor to relieve the owner of any private property from the duty to trim trees in accordance with Titles 16,17 and 20 of the Code of the City of Portland.”
That provision merely prevents any term of the ordinance from imposing a
new
liability on the City. For instance, the City would not be liable for a failure by an abutting property owner to obey the ordinance and remove foliage that is obscuring a stop sign. Subsection (f) of
former
PCC 20.40.050, however, does not exempt the City from any liability that it might have to an injured party arising out of the City’s own negligent failure to remove foliage.
In several cases, this court has analyzed the constitutionality under Article I, section 10, of the Oregon Constitution
of a city’s charter or ordinance that explicitly gave the city tort immunity.
Those decisions considered whether the
city had provided the plaintiff with another substantial remedy.
See, e.g., Mattson v. Astoria,
39 Or 577, 65 P 1066 (1901) (city charter provision which purported to exempt
both
the city and its officers from liability to an injured party for damages resulting from defective streets invalidated);
Noonan v. Astoria,
161 Or 213, 88 P2d 808 (1939) (a provision of the city charter which exempted the city from liability but did not attempt to immunize the city officers from suit held not to infringe upon the guaranteed remedy provision of Article I, section 10, of the Oregon Constitution). 161 Or at 216.
See generally Hale v. Port of Portland,
308 Or 519, 523, 783 P2d 506 (1989)
(discussing the viability of municipal immunity under Article I, section 10, of the Oregon Constitution). Plaintiff argues that to the extent the ordinances at issue in this case purport to exempt the City from liability, it is necessary to determine whether they are constitutional under Article I, section 10, of the Oregon Constitution. We need not reach any constitutional question under Article I, section 10, because, as we have already held, the ordinances at issue do not exempt the City from any common law liability that it might have to an injured party for negligent failure to keep a stop sign clear of foliage.
The City’s alternative argument is that, “[i]f the City Code does not extinguish the City’s duty in this case altogether, then the choice made by the City Council to delegate the responsibility and liability to the abutting property
owners constitutes the performance of a discretionary function, for which the City is immune from liability” under ORS 30.265(3)(c) of the Tort Claims Act. That argument misses the mark, for two reasons. First, it assumes incorrectly that the ordinances “delegate”
all
potential responsibility and liability to abutting landowners. As discussed above, we do not read the ordinances that way. Second, plaintiff is not suing the City for its exercise of a policy choice, such as the decision to place responsibility and liability on landowners. Rather, plaintiff is suing the City for its negligence in failing to keep a stop sign clear of foliage.
Nothing in the trial record demonstrates that that alleged act or omission involves the performance of a discretionary function.
See Miller v. Grants Pass Irrigation,
297 Or 312, 320-22, 686 P2d 324 (1986) (discussing concept of “discretionary junction”);
Stevenson v. State of Oregon,
290 Or 3, 619 P2d 247 (1980) (same). For further discussion of the concept of a “discretionary function or duty,”
see
Comment,
Oregon’s Discretionary Interpretation of Discretionary Immunity,
22 Willamette L Rev 147 (1986).
The decision of the Court of Appeals is affirmed on different grounds, and the judgment of the circuit court is reversed.