Weatherford v. County of Klamath

120 P.3d 530, 201 Or. App. 601, 2005 Ore. App. LEXIS 1246
CourtCourt of Appeals of Oregon
DecidedSeptember 28, 2005
Docket0002933CV; A122864
StatusPublished
Cited by1 cases

This text of 120 P.3d 530 (Weatherford v. County of Klamath) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weatherford v. County of Klamath, 120 P.3d 530, 201 Or. App. 601, 2005 Ore. App. LEXIS 1246 (Or. Ct. App. 2005).

Opinion

EDMONDS, P. J.

Plaintiff was injured when she slipped on ice in the parking lot of the Klamath County Jail. Plaintiff alleged that the county was negligent in failing to remove snow and ice from the parking lot, failing to utilize sand or other materials to improve traction or cause accelerated melting of the snow or ice, and failing to warn persons of the existence of snow and ice. The parties proceeded to trial and, at the close of evidence, the trial court granted the county’s motion for a directed verdict on the ground of discretionary immunity. The court entered judgment for the county, and plaintiff appeals. We reverse and remand.

Because the trial court granted the county’s motion for a directed verdict, we state the facts in the light most favorable to plaintiff. On a winter morning in 1998, plaintiff visited the Klamath County J ail to attend a court proceeding. When she arrived at the jail parking lot, plaintiff parked in a designated parking place and proceeded toward the gated entrance of the jail. While walking across the parking lot, plaintiff slipped on an icy surface and broke her ankle in two places.

On the morning of plaintiff’s fall, Gary Shepherd, then a sergeant with the Klamath County’s Sheriffs Office, arrived for work at the jail at around 5:00 a.m. Shepherd noticed icy conditions and decided to spread a chemical agent, referred to as “ice melt,” around the jail. Shepherd, with the help of other workers, spread the ice melt on the approach way from the parking lot, on the sidewalk areas in front of the jail, on the “threshold” and porch areas, and on the sidewalk to the front door of the sheriffs office. Shepherd exhausted his supply of ice melt and called the maintenance department to request more.1 He left a message with Tom Banks, the Klamath County Maintenance Supervisor, to the effect that “they had * * * some ice in the parking lot up at the jail.” Banks then traveled to the jail, and provided additional [604]*604ice melt to distribute through the pathway, along the sidewalks, and “along the driveway where people would normally walk in to access the courtroom.” Later, plaintiff fell in an area approximately 10 to 15 feet beyond where the ice melt had been applied.

On direct examination, Shepherd was asked, “Was there any kind of policy or direction to tell you where to spread that [ice melt]?” Shepherd answered, “No.” On re-direct examination, he testified as follows:

“Q: Deputy Shepherd, uh, did anybody ever give you explicit instructions on where to spread or not spread ice melt?
“A: No, Sir.
“Q: Okay. Um, was it basically, up to you to spread it where you felt it necessary and appropriate?
“A: Basically, it was a judgment call, just like shoveling the snow. When I get a crew out in the morning we just put it where it needed to be.”

Counsel for the county then re-cross-examined Shepherd as to the existence of a “policy”:

“Q: Okay. Now, back to the question of policy. You didn’t make a policy with regard to the use of ice melt with the county, did you?
“A: No, Sir.”

Shepherd then testified that he had observed over a period of years that ice melt was never put in “the broader parking lot areas, but was limited to the entrance areas and sidewalks.” According to Shepherd, he had never seen ice melt used anywhere other than on the sidewalks, or approach areas and going onto the sidewalks from the parking areas. Shepherd was asked if “That is the general practice,” to which he responded, “As far as I, as long as I’ve lived in this area[;] that is what I have seen throughout, not only with the county, but private businesses and everything else.”

Banks also testified regarding the existence of a policy for spreading ice melt. On direct examination, plaintiffs counsel asked Banks if “there [were] any rules that said you couldn’t put it where all the people walk?” Banks answered, [605]*605“No.” He then was asked if it “was just left up to the deputies to spread it where they wanted?” Banks answered,

“Well, the rule of thumb for us is that we usually don’t go and do a whole parking lot area. Any of the sidewalks that they find uh, or any kind of a pathway then yeah, I would say that, this isn’t written down, but the general knowledge is that, yeah, any place that somebody would be walking to access the building uh, a pathway or a side, especially sidewalks, that yes, you would ice melt in areas that you would find ice or snow or anything like that.”

On cross-examination by the county, Banks testified that the county does in fact have a “policy” that ice melt is not spread on parking lots. Banks testified that the policy is mostly because of expense; given the resources of his department, it would not be feasible to set aside the money required to put ice melt on parking lots. However, according to Banks, the policy is not directed at the deputies at the jail who spread the ice melt, but rather at his maintenance personnel. In fact, on re-cross examination, Banks testified that he never “said anything to any of the deputy sheriffs one way or another about where and how to apply [ice melt].”

At the close of evidence, the trial court granted a directed verdict on the ground that the county had discretionary immunity with regard to the alleged acts and omissions of its employees. In granting the motion, the trial court stated, “Mr. Banks testified that they did put it on the parking lot at the jail, but only in specific areas, not in the parking area per se. * * * I think there is a policy.” The court continued,

“The policy very fairly is sidewalks, areas of parking lots that are adjacent to entryways and certain walkways on the jail parking lot, not the parking lot per se. Jail personnel did have some discretion on when to use the quantity in locations of walking areas, but never had any discretion that I can see or never used any discretion to put [it] in the parking areas per se.”

In reviewing the trial court’s directed verdict in the county’s favor, we determine whether the facts in evidence, interpreted in plaintiffs’ favor, and every beneficial inference [606]*606that can be drawn from those facts, entitled the county to discretionary immunity as a matter of law. Jones v. Emerald Pacific Homes, Inc., 188 Or App 471, 478, 71 P3d 574, rev den, 336 Or 125, 79 P3d 882 (2003); McComb v. Tamlyn, 173 Or App 6, 14-15, 20 P3d 237 (2001).

The burden of proving discretionary immunity rests with the governmental defendant asserting that defense. Stevenson v. State of Oregon, 290 Or 3, 15, 619 P2d 247 (1980). ORS 30.265(3)(c), the statutory basis for discretionary immunity, provides that “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties * * *” are immune from liability for “[a]ny 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.” Under the statute, “conduct is ‘discretionary’ in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government * *

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Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 530, 201 Or. App. 601, 2005 Ore. App. LEXIS 1246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weatherford-v-county-of-klamath-orctapp-2005.