Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JESUS VELEZ PASTRANA and

JOHN G. IRWIN, JR.,

Case No. 3:24-cv-00587-AB

Plaintiffs,

OPINION & ORDER

v.

CITY OF PORTLAND,

a municipal corporation,

Defendant.

David Thomas Wallace

Wallace Law Firm

7822 N Wabash Avenue

Portland, OR 97217

Attorney for Plaintiffs

Michael Porter

Elisabeth C. Woodard

City of Portland, Office of the City Attorney

1221 SW 4th Ave, Ste. 430

Portland, OR 97204

Attorneys for Defendant

BAGGIO, District Judge:

Plaintiffs Jesus Velez Pastrana and John G. Irwin, Jr. bring this case against Defendant

City of Portland. Plaintiffs bring one state negligence claim and one claim under 42 U.S.C.

§ 1983. Second Am. Compl. (“SAC”) ¶¶ 10–14, 19–36, ECF No. 13. Defendant moves for

summary judgment on Plaintiffs’ claims. Def.’s Mot. Summ. J. (“Def.’s MSJ”), ECF No. 38. The

Court heard oral argument on Defendant’s motion on October 23, 2025. For the reasons

described below, the Court grants Defendant’s motion.1

BACKGROUND

On April 29, 2022, Portland Police responded to a report of a stolen box truck, which was

located in a parking lot of a local business—Tom’s Bar—in Southeast Portland. Pls.’ Resp. Ex. 3

(“Meyer Dep.”), at 4:16–19, ECF No. 46-4. Portland Police dispatched officers “[t]o make

contact with the stolen vehicle” and one aerial unit (“AIR1”) to track the stolen box truck from

above. Id. at 7:20; see also Elias Decl. ¶ 2 (“I was . . . responsible for operating the [AIR1]

camera system and coordinating surveillance with ground units.”), ECF No. 40. After arriving at

Tom’s Bar, the responding officers initially “wait[ed] for additional resources, given the size of

the vehicle [they] were attempting to contact.” Meyer Dep. 8:2–4.

Joseph Gary Sumner and two nonparty passengers had possession of the stolen box truck

throughout the incident. Pls.’ Resp. Def.’s MSJ (“Pls.’ Resp.”) Ex. 5 (“First Sumner Dep.”), at

44:19–23, 95:18–96:11, ECF No. 46-6. On the day of the incident, Sumner “was high on

meth[,]” which “create[d] paranoia.” Id. at 39:25. While parked, one of the two nonparty

1 The Court dismissed Defendants Joseph Gary Sumner and Shaun Lee Palmer for

Plaintiffs’ failure to prosecute their case against them. Order, ECF No. 34. Additionally, at oral

argument, Plaintiffs withdrew their claim for negligent infliction of emotional distress against

remaining Defendant City of Portland. Minutes of Proceedings, ECF No. 50. Therefore,

Plaintiffs’ remaining claims are their negligence and Section 1983 claims against Defendant City

of Portland (“Defendant”).

passengers alerted Sumner that police were nearby. Id. at 50:23–51:1. In response, Sumner

“back[ed] up” the box truck to leave Tom’s Bar. Id. at 51:1–2. While leaving Tom’s Bar, Sumner

saw at least one police officer, id. at 51:2, and testified that “when I seen [sic] that officer, my

heart rate rose just as much as if you were to light up a meth pipe . . . .” Pls.’ Resp. Ex. 6

(“Second Sumner Dep.”), at 156:9–11, ECF No. 46-7.

Shortly before Sumner exited the parking lot of Tom’s Bar, Officer Ryan Hernandez

deployed spike strips in front of the stolen box truck. Pls.’ Resp. Ex. 8 (“Hernandez Dep.”), at

11:5–6, 13:25–14:5, ECF No. 46-9; see also Porter Decl. Ex. 4 (“AIR1 Video”), at 8:53 (aerial

footage showing Officer Hernandez deploying spike strips). Officer Quincy Ho, another

responding officer, testified that the spike strips were used “so the vehicle can’t drive at its

absolute full potential.” Pls.’ Resp. Ex. 7 (“Ho Dep.”), at 19:23–24, ECF No. 46-8. Sumner

drove the box truck over the spike strips, which “penetrated, at most, a single tire on the suspect

vehicle—a right rear tire on the passenger side.” Erickson Decl. ¶ 3, ECF No. 41. The spike

strips, however, did not stop the stolen box truck; instead, Sumner kept driving, heading

northbound on Southeast Cesar Chavez Boulevard. AIR1 Video 8:53–9:18.

As Sumner continued driving, the responding officers did not give chase. See id. at

10:12–17 (Officer Elias remarking “there are no officers pushing this guy, he’s just driving like

this on his own”); see also Second Sumner Dep. 178:9–10 (“[T]here was no point where it was

an actual chase.”). Instead, the responding officers drove on streets parallel to the streets on

which Sumner was driving the stolen box truck. Hernandez Dep. 25:4–11. AIR1 continued to

follow Sumner from above and provided updates on his location. Elias Decl. ¶ 3; Pls.’ Resp. Ex.

4 (“Elias Dep.”), at 20:20–21, ECF No. 46-5. Despite not being chased, Sumner drove at high

speeds through residential areas of Southeast Portland and through multiple major intersections

without stopping. See AIR1 Video 10:17–24 (Officer Elias remarking that Sumner was driving

“through a residential area in a box truck, doing about 40–50 [miles per hour]”). As Sumner was

driving through Southeast Portland, he was not aware of AIR1’s presence tracking him from

above and never observed police lights or sirens during his flight from Tom’s Bar. First Sumner

Dep. 73:1, 92:20–23.

After roughly four minutes, Sumner had travelled two miles to the intersection of

Southeast 26th Avenue and Southeast Pine Street. See AIR1 Video 11:52–12:04. Sumner entered

this intersection without stopping. Id. A vehicle driven by Susannah Badger also entered the

intersection at the same time as Sumner and struck the box truck’s rear driver side. Id. at 12:04–

18; see also Pls.’ Resp. Ex. 9 (“Badger Dep.”), at 25:9–12 (describing a diagram illustrating the

collision between Badger’s vehicle and the stolen box truck), ECF No. 46-10. Following the

collision, Sumner lost control of the stolen box truck, which swerved down Southeast 26th

Avenue and struck Plaintiffs as they were crossing the road. See AIR1 Video 12:04–12:18

(Officer Elias remarking that Sumner crashed “just south of [Southeast] Ash [Street] on

[Southeast] 26[th Avenue]”).

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The

moving party bears the initial responsibility of informing the court of the basis of its motion, and

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting former Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the

light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,

1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the

existence of a material issue of fact implausible, that party must come forward with more

persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

Defendant moves for summary judgment, arguing first that Plaintiffs fail to show

evidence of municipal liability under their state-created danger theory of liability. Def.’s MSJ 8–

11. Defendant also argues that Plaintiffs’ negligence claim similarly fails for lack of evidentiary

support, and that Defendant is entitled to discretionary immunity. Id. at 16–23, 27–29. The Court

grants Defendant’s Motion for Summary Judgment.

I. State-Created Danger

Defendant moves for summary judgment on Plaintiffs’ § 1983 claim because Plaintiffs do

not establish evidence supporting their state-created danger theory of liability. Def.’s MSJ 8–11;

Def.’s Reply 7–10, ECF No. 47. Plaintiffs disagree and respond that “[a] reasonable jury could

find that PPB officers affirmatively created or heightened the danger to Plaintiffs . . . .” Pls.’

Resp. 1, ECF No. 46. 2 The Court agrees with Defendant.

Under 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law[.]

42 U.S.C. § 1983. The Fourteenth Amendment generally “does not impose a duty on [the state]

to protect individuals from third parties.” Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir.

2007). But under the state-created danger doctrine, a municipality can be held liable “when

government employees ‘affirmatively place[ ] the plaintiff in a position of danger, that is, where

[their] action[s] create[ ] or expose[ ] an individual to a danger which he or she would not have

otherwise faced.’” Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018) (citing

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006)). There are “two clear

requirements” that Plaintiffs must show to prevail on a state-created danger claim. Patel v. Kent

Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011). First, Plaintiffs must show some “affirmative

conduct on the part of the state in placing the plaintiff[s] in danger.” Id. (quoting Munger v. City

of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000)). Second, “the exception applies

only where the state acts with ‘deliberate indifference’ to a ‘known or obvious danger.’” Id.

2 Plaintiffs alleged in their SAC, but no longer argue, that Defendant is liable under

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). See, e.g., SAC ¶ 26 (“[Defendant] acted

pursuant to an expressly adopted official policy and/or a longstanding practice or custom of

[Defendant].”). Now, Plaintiffs refer to their two remaining claims as “state-created danger and

negligence claims . . . .” Pls.’ Resp. 9. Counsel for Plaintiffs confirmed during oral argument that

Plaintiffs’ substantive due process claim rests on a state-created danger theory of liability, and

not on Monell. Additionally, Plaintiffs further argue that Defendant is not entitled to qualified

immunity, and Defendant agrees. Id. at 14–15; Def.’s Reply 17.

(quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). The Court discusses each element in

turn.

A. Affirmative Conduct

Defendant argues that “Plaintiffs cannot show that the City took affirmative action that

placed them in a position of danger they would not otherwise have faced.” Def.’s MSJ 9.

Plaintiffs respond that Defendant affirmatively acted through its officers by deploying spike

strips. Pls.’ Resp. 10. The Court agrees with Defendant.

To establish an affirmative act for purposes of the state-created danger doctrine, a

plaintiff must show that, first, “[t]he affirmative act . . . create[s] an actual, particularized

danger . . . .” Hernandez, 897 F.3d at 1133 (citing Kennedy, 439 F.3d at 1063). Second, “the

ultimate injury to the plaintiffs must be foreseeable . . . .” Id. (citing Lawrence v. United States,

340 F.3d 952, 957 (9th Cir. 2003)). Third, “[t]he state must have taken actions that placed the

plaintiff in a ‘worse position’ than he would have been in ‘had [the state] not acted at all.’”

Polanco v. Diaz, 76 F.4th 918, 926 (9th Cir. 2023) (quoting Pauluk v. Savage, 836 F.3d 1117,

1124 (9th Cir. 2016)). But “[a]ffirmative state action that exposes a broad swath of the public to

‘generalized dangers’ cannot support a state-created-danger claim.” Id. at 927 (quoting Sinclair

v. City of Seattle, 61 F.4th 674, 676 (9th Cir. 2023)); see also Hall v. City of Portland, No. 3:22-

CV-00074-HZ, 2022 WL 3646994, at *5 (D. Or. Aug. 22, 2022) (“[The plaintiff] was no more

than a member of the ‘public at large,’ and any danger posed by police action (or inaction) was

not directed specifically at him.”). In affirming the district court in Hall, the Ninth Circuit added

that “[i]n cases where our court has identified an affirmative state act that satisfies the first prong

of our state-created danger test, law enforcement typically engaged in direct contact with the

victim.” Hall v. City of Portland, No. 22-35705, 2023 WL 5527854, at *1 (9th Cir. Aug. 28,

2023).

Here, Plaintiffs fail to show that Officer Hernandez’s deployment of spike strips created a

particularized danger to Plaintiffs. Plaintiffs provide no evidence that the responding officers

specifically directed their actions at Plaintiffs. Plaintiffs also do not argue that the responding

officers ever engaged in direct contact with Plaintiffs. See AIR1 Video 8:53–12:18 (Sumner

driving from Tom’s Bar to the site of the collision two miles away). Instead, Plaintiffs merely

provide evidence that the responding officers may have increased a risk to the general public,

which falls short of showing that their actions created a risk particular to Plaintiffs.

Plaintiffs cite two “controlling” cases in support of their argument that “the affirmative

act of deploying spike strips in a pedestrian-heavy area, coordinated with ground units and an

overhead aircraft, foreseeably escalated the risk to civilians . . . .” Pls.’ Resp. 9. First, Plaintiffs

cite as an analogous case Estate of Soakai v. Abdelaziz, 137 F.4th 969 (9th Cir. 2025),3 arguing

that liability may be found when an officer’s actions “‘set in motion a chain of events’

foreseeably leading to harm.” Pls.’ Resp. 10. But the court in Estate of Soakai explained that

“[the plaintiffs’] state-created danger claim targets not the injuries caused by the crash itself but

the additional risk faced by Plaintiffs after the crash due to delayed medical treatment.” Est. of

Soakai, 137 F.4th at 984. As to the initial crash involving the plaintiffs, the court only reiterated

its general rule that “[a]ffirmative state action that exposes a broad swath of the public to

3 In their briefing, Plaintiffs cite “Estate of Soakai v. City of Oakland, 77 F.4th 1103,

1115–16 (9th Cir. 2025).” Pls.’ Resp. 9. No such case exists. Defendant argues that Plaintiffs

mean to cite to the above-cited case, Est. of Soakai v. Abdelaziz, 137 F.4th 969 (9th Cir. 2025).

Def.’s Reply 8. Plaintiff also attributes to this case a quote (i.e., “set in motion a chain of

events”) that the Court is unable to attribute to Estate of Soakai or any other case that the parties

cite. Pls.’ Resp. 10.

‘generalized dangers’ cannot support a state-created-danger claim.” Id. (quoting Polanco, 76

F.4th at 927); see also id. at 983–84 (“[The defendants] argue that they did not create a

‘particularized’ danger because the high-speed chase ‘threatened the safety of the public at

large.’ Were we focused on the danger wrought by the car chase alone, [the defendants] would

have a valid point.”).

Plaintiffs also cite Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011), to argue

that Defendant is “liab[le] where police escalation removed the possibility of peaceful resolution

and foreseeably caused harm . . . .” Pls.’ Resp. 9. But Plaintiffs’ argument fails for two reasons.

First, Glenn is factually distinct. The facts in Glenn involved police officers’ use of a bean bag

gun and semiautomatic weapons against a victim in a home setting. Glenn, 673 F.3d at 869.

Second, Glenn involved legally distinct issues; that is, whether the defendants used excessive

force in violation of the Fourth Amendment and whether the defendants were entitled to

qualified immunity. See id. at 870.

In all, the record in the instant case shows that the responding officers, at most, created a

danger that exposed the public to a generalized danger. In other words, even if “the city may

have exposed [Plaintiffs] to an actual danger through its affirmative acts, the danger was not

particularized to [them].” Hall, 2023 WL 5527854, at *1. Accordingly, Plaintiffs fail to

demonstrate the existence of an affirmative act that created an actual and particularized danger.

B. Deliberate Indifference

Defendant argues that Plaintiffs fail to show that Defendant, through its officers, acted

with deliberate indifference in deploying spike strips on the stolen box truck. Def.’s MSJ 10.

Plaintiffs respond that Defendant acted with deliberate indifference because the responding

officers were required to—and did not—obtain “[s]upervisory authorization” or conduct “risk-

balancing broadcasts.” Pls.’ Resp. 12. Again, the Court agrees with Defendant.

“Deliberate indifference is ‘a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.’” Patel, 648 F.3d at 974

(quoting Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). Deliberate indifference requires a

plaintiff to prove that a defendant “had a culpable state of mind and intended wantonly to inflict

pain . . . [and had] actual knowledge . . . of impending harm” that is “easily preventable.”

Grubbs, 92 F.3d at 899–900 (quoting Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir.

1992)). “The deliberate-indifference inquiry should go to the jury if any rational factfinder could

find this requisite mental state.” Patel, 648 F.3d at 974.

Here, Plaintiffs fail to show that Officer Hernandez acted with deliberate indifference

because Plaintiffs do not argue whether Officer Hernandez—or any other responding officer—

possessed the requisite culpable mental state at the time of the incident. Plaintiffs also provide no

evidence that Officer Hernandez actually knew of impending harm to Plaintiffs, or that he

intended to inflict pain. Instead, the record supports a conclusion that the officers deployed spike

strips with the intent to prevent Sumner from fleeing. The responding officers’ testimony

explains that they used spike strips “so the vehicle can’t drive at its absolute full potential.” Ho

Dep. 19:23–24; see also id. at 23:23–24 (“We want this vehicle stopped and the occupant to get

out.”); Elias Dep. 14:5–7 (Officer Elias explaining that the use of spike strips is “always a good

preemptive thing to do, to keep a car from running from you, or if it does run, to flatten the

tires”). AIR1 footage provides further evidence that the responding officers discussed—for

roughly seven minutes—whether to use spike strips and weighed factors such as Sumner’s

driving behavior, the responding officers’ proximity to the stolen box truck, and their desired

outcome. See AIR1 Video 1:42–46 (Officer Elias radioing officers on the ground, “maybe we

could do a preemptive—maybe spike [the box truck] . . . .”); id. at 7:12–7:17 (“probably spike

[Sumner] coming out of the lot, I don’t know how close you are.”); id. at 7:32–36 (“Yeah,

[Sumner is] driving really mellow so we can get ahead of him and throw spikes . . . .”); id. at

8:36–40 (“Get some spikes out on [Southeast Cesar Chavez Boulevard] if you can, he’ll kinda be

stuck in [the parking lot].”); see also Elias Decl. ¶ 3 (“I am the voice heard on the AIR1

video . . . advising on tactical options that might be used to detain and arrest the driver of the

stolen truck.”). While Officer Hernandez testified that he did not “check in with anybody” before

deploying the spike strips, Hernandez Dep. 11:7–9, the record also shows that he was listening to

AIR1 updates at the time the other responding officers were discussing whether to deploy spike

strips, id. at 9:23–10:1, 10:12–22. This level of deliberation among the responding officers

supports a finding that the officers weighed the risks of using spike strips and ultimately

deployed them with the desired effect of immobilizing the stolen box truck. The record does not

support a finding that the responding officers intended to inflict harm.

Plaintiffs contend that the responding officers acted or failed to act in ways that

constituted deliberate indifference. First, Plaintiffs argue that “[s]upervisory

authorization . . . [was] required but absent . . . .” Pls.’ Resp. 12. But Plaintiffs’ evidence does

not support their assertion. For example, Plaintiffs argue that the responding officers violated

City of Portland Police Directive 630.05, see generally Pls.’ Resp. Ex. 11 (“Directive 630.05”),

ECF No. 46-12, but the plain language of Directive 630.05 does not require supervisory

authorization before deploying spike strips.4 Second, Plaintiffs argue that “risk-balancing [was]

4 Section 3.2 of Directive 630.05 provides that “[t]he managing supervisor

will . . . declare if the pursuit is authorized to continue,” but the “Definitions” section of

Directive 630.05 includes “stop/spike strips” as a “Vehicle Intervention Strateg[y]” which has a

required but absent . . . .” Pls.’ Resp. 12. But, as mentioned above, the responding officers did

discuss whether to use spike strips for several minutes before Officer Hernandez deployed them.

See AIR1 Video 7:12–8:40. Third, Plaintiffs argue that Sumner “aimed for [Southeast]

Hawthorne [Boulevard]” and that the responding “[o]fficers knew forcing this route increased

pedestrian and vehicle exposure.” Pls.’ Resp. 11. But Plaintiffs provide no evidence that the

responding officers forced Sumner to drive in a particular direction, or that they knew that

Sumner would drive in the direction he did after leaving Tom’s Bar. See Hernandez Dep. 23:12–

13 (“I can’t control what a person does and how they choose to drive their vehicle.”).

In all, the record shows that the responding officers intended to slow or stop the stolen

box truck, not to cause harm to Plaintiffs. Plaintiffs do not offer sufficient evidence such that a

jury could reach a different conclusion. Therefore, the Court finds that Defendant, through its

officers, did not act with deliberate indifference. Because Plaintiffs fail to establish either

element of their state-created danger theory of liability, the Court grants Defendant’s Motion as

to Plaintiffs’ § 1983 claim.

II. Negligence

Defendant moves for summary judgment on Plaintiffs’ negligence claim because (1) “no

reasonable jury could conclude that the City was on notice that such harm to Plaintiffs was

foreseeable[,]” (2) “the City’s alleged conduct did not cause Plaintiffs’ injuries[,]” and (3)

Plaintiffs’ negligence claim is “barred by [Or. Rev. Stat. § (“ORS”)] 30.265(6)(c) because [it]

arise[s] from conduct that constitutes a discretionary function.”5 Def.’s MSJ 20, 27. Plaintiffs

definition distinct from the Directive’s definition of “pursuit” and for which supervisory

approval is not required. Directive 630.05 at 1, 3, 5.

5 Defendant also argues that no special relationship or independent duty exists in this

case. Def.’s MSJ 17–18. At oral argument, counsel for Plaintiffs confirmed that they are not

arguing that a special relationship exists here. Counsel for Plaintiffs did argue—for the first

respond that “[a] jury could find these acts breached duties under Oregon law, created an

unreasonable and foreseeable risk of harm, and substantially contributed to Plaintiffs’ injuries[,]”

and that Oregon’s discretionary immunity law does not apply to the “operational negligence”

present in this case. Pls.’ Resp. 14, 16. While the Court finds that Defendant is not entitled to

discretionary immunity, under ORS 30.265(6)(c), Defendant is still entitled to summary

judgment because the responding officers’ actions did not cause a foreseeable risk of harm to

Plaintiffs.

A. Discretionary Immunity

Defendant argues that it is entitled to discretionary immunity because Plaintiffs’ claim

“arise[s] from conduct that constitutes a discretionary function.” Def.’s MSJ 27. Plaintiffs

respond that Defendant is not entitled to discretionary immunity because such immunity “shields

only high-level policy decisions, not operational negligence.” Pls.’ Resp. 16. The Court agrees

with Plaintiffs and finds that discretionary immunity does not apply in this case.

Under the Oregon Tort Claims Act (OTCA), “every public body is subject to civil action

for its torts . . . .” ORS 30.265(1); see also Jensen v. Whitlow, 334 Or. 412, 416, 51 P.3d 599

time—that Defendant had an independent duty (1) not to violate Portland Police Bureau

Directive 630.05 and (2) to weigh the risks of engaging the stolen box truck. But Plaintiffs

provide no authority to support their assertion. Additionally, this argument does not appear in

Plaintiffs’ SAC or Response brief. See Fazzolari By & Through Fazzolari v. Portland Sch. Dist.

No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987) (“[U]nless the parties invoke a status, a relationship,

or a particular standard of conduct that . . . defines . . . the defendant’s duty, the issue of liability

for harm . . . properly depends on whether that conduct unreasonably created a foreseeable

risk . . . of harm that befell the plaintiff.”). Even if Plaintiffs did allege an independent duty,

“‘[t]here is no duty so to control the conduct of a third person as to prevent him from causing

physical harm to another’ unless there is a special relationship between the actor (defendant) and

an injured party (plaintiff).” Buchler v. State By & Through Oregon Corr. Div., 316 Or. 499,

505, 853 P.2d 798 (1993) (quoting Restatement (Second) of Torts § 315 (Am. Law Inst. 1965)).

Because Plaintiffs do not allege an independent duty in their SAC, sufficiently brief the issue, or

cite any authority supporting their argument, the Court declines to discuss the issue further.

(2002) (finding the OTCA “abrogated, in part, the state’s sovereign immunity”). ORS 30.265(1)

further provides that a municipality may be subject to civil action for the torts “of its officers,

employees and agents acting within the scope of their employment or duties.” Id.

“Discretionary immunity applies to actions that embody ‘a choice among alternative

public policies by persons to whom responsibility for such policies have been delegated.’”

Ramirez v. Hawaii T & S Enters., Inc., 179 Or. App. 416, 419, 39 P.3d 931 (2002) (quoting

Miller v. Grants Pass Irrigation District, 297 Or. 312, 316, 686 P.2d 324 (1984)). There are

three criteria that a defendant must show to qualify for discretionary immunity:

It must be the result of a choice, that is, the exercise of judgment; that choice must

involve public policy, as opposed to the routine day-to-day activities of public

officials; and the public policy choice must be exercised by a body or person that

has, either directly or by delegation, the responsibility or authority to make it.

Id. The Court first clarifies the challenged conduct at issue and then determines that Defendant is

not entitled to discretionary immunity because the conduct at issue involves routine-day-to-day

activity of public officials.

i. Challenged Conduct

The parties disagree about what conduct is at issue for purposes of determining whether

Defendant is entitled to discretionary immunity. Defendant argues that “[t]he discretionary

judgment at issue here was made not by the responding officers in the field, but by PPB

leadership in developing and issuing Directive 630.05 . . . .” Def.’s MSJ 28. Plaintiffs disagree,

arguing instead that the conduct at issue involved the “[d]ecisions to deploy spike strips,

coordinate ground and air units, and continue active trailing in a pedestrian zone . . . .” Pls.’

Resp. 16. The Court agrees with Plaintiffs that the conduct at issue here involves the actions of

the responding officers, not Defendant’s choice to enact Directive 630.05.

Under ORS 30.265, “public bodies are immune from respondeat superior tort liability if

the conduct of the employee whose acts are alleged to create the liability involved the exercise of

‘policy judgment.’” Lowrimore v. Dimmitt, 310 Or. 291, 294, 797 P.2d 1027 (1990) (emphasis

added) (quoting McBride v. Magnuson, 282 Or. 433, 437, 578 P.2d 1259 (1978)). In Lowrimore,

the plaintiff sued Marion County “for personal injuries allegedly sustained by the plaintiff when

her vehicle was struck by an automobile driven by [a third party] as he was being pursued by a

Marion County deputy sheriff.” Id. at 293. In analyzing whether ORS 30.265(6)(c) precluded

liability, the court identified the challenged conduct as the actions of the Marion County deputy

sheriff. See id. at 296 (“A traffic officer’s decision to pursue a vehicle such as the [third party’s]

vehicle, though discretionary in the sense that it involves the exercise of judgment and choice by

the officer, is not one that qualifies its maker to immunity under [the statutory predecessor to

ORS 30.265(6)(c)].”). In conducting its discretionary immunity analysis, the court in Lowrimore

did not evaluate any departmental policy under which the Marion County deputy sheriff was

acting.

Here, the Court finds that the challenged conduct involves the actions of the responding

officers on the scene and that Defendant’s decision to enact Directive 630.05 is not the

“conduct . . . alleged to create the liability . . . .” Id. at 294. In other words, the parties do not

dispute whether Defendant was negligent in enacting Directive 630.05. Rather, Plaintiffs

challenge the conduct of the responding officers at the time of the incident. See Pls.’ Resp. 12

(“PPB’s own written directives—if followed—would have prohibited initiating a pursuit or

deploying spike strips in this case.”).

Defendant insists that “Plaintiffs’ challenge to the consequences of a no-pursuit policy

does not alter the discretionary nature of the decision to adopt it.” Def.’s MSJ 29 (citing Carillo

v. City of Portland, No. 3:21-CV-01340-YY, 2022 WL 4243460 (D. Or. June 3, 2022), report

and recommendation adopted sub nom., No. 3:21-CV-1340-YY, 2022 WL 3715227 (D. Or.

Aug. 29, 2022)). But Defendant’s argument fails for two reasons. First, Plaintiffs do not

“challenge the consequences of a no-pursuit policy[,]” id.; instead, they challenge the responding

officers’ choice “to deploy spike strips[,]” Pls.’ Resp. 16. Second, the challenged action in

Carillo is distinct from the challenged actions in this case. The plaintiff in Carillo challenged a

decision by Portland’s Mayor and “other unidentified municipal actors” to “order[] officers to

stay out of sight and allow the protestors to express their emotions.” Carillo, 2022 WL 4243460,

at *8 (internal quotations omitted). The plaintiff in Carillo did not challenge the actions of the

police officers on the scene, as Plaintiffs do here.

Because courts must review the “acts . . . alleged to create the liability[,]” the Court finds

that the actions at issue are those of the responding officers, not Defendant’s decision to enact

Directive 630.05. Lowrimore, 310 Or. at 294.

ii. Conduct Involving Public Policy or Routine Activity

Because the conduct at issue involves the actions of the responding officers on the day of

the incident, Defendant’s discretionary immunity defense fails on the second prong of the

analysis.

In general, “the decision of a governmental official, employee, or body is entitled to

discretionary immunity if a governmental person or entity made a policy choice among

alternatives, with the authority to make that choice.” Westfall v. State ex rel. Oregon Dep’t of

Corr., 355 Or. 144, 157, 324 P.3d 440 (2014). But “the judgment . . . generally must take place

at a relatively high level of public authority; the ‘routine decisions which every employee must

make,’ even when they require judgment, do not qualify for discretionary immunity.” Ramirez,

179 Or. App. at 420 (quoting Stevenson v. State Dep’t of Transp., 290 Or. 3, 14, 619 P.2d 247

(1980)). As is relevant here, although decisions made by police officers “involve[] the exercise

of judgment and choice[,]” their actions do not render a defendant immune from liability because

they are “routine decisions made by employees in the course of their day-to-day activities.”

Lowrimore, 310 Or. at 296; see also Westfall, 355 Or. at 157 (quoting Lowrimore). “Although [a]

decision . . . may have been made pursuant to a county departmental policy, the decision itself is

not a policy judgment . . . .” Lowrimore, 310 Or. at 296.

Here, Defendant fails to prove the second prong of the discretionary immunity analysis

because the responding officers’ conduct constituted “routine, day-to-day judgment[s] and not a

public policy choice.” Ramirez, 179 Or. App. at 420 (citing Lowrimore, 310 Or. at 296). Because

such conduct does not render Defendant “immune from liability for the ensuing harm it causes,”

Defendant’s discretionary immunity defense fails. Id. (citing Lowrimore, 310 Or. at 296).

B. Negligence

Defendant also moves for summary judgment on the merits of Plaintiffs’ negligence

claim. To prevail on a negligence claim under Oregon law, absent a showing of a special

relationship or other independent duty, a plaintiff must show each of the following elements:

(1) that defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is

to an interest of a kind that the law protects against negligent invasion, (3) that

defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was

a cause of plaintiff’s harm, and (5) that plaintiff was within the class of persons and

plaintiff’s injury was within the general type of potential incidents and injuries that

made defendant’s conduct negligent.

Son v. Ashland Cmty. Healthcare Servs., 239 Or. App. 495, 506, 244 P.3d 835 (2010) (quoting

Solberg v. Johnson, 306 Or. 484, 490–91, 760 P.2d 867 (1988)). The parties dispute whether

Plaintiffs’ injuries were foreseeable and whether the responding officers’ actions were a but-for

cause of Plaintiffs’ injury. Def.’s MSJ 18, 20; Pls.’ Resp. 13–14. The Court finds that Plaintiffs’

negligence claim fails because Defendant did not cause a foreseeable risk of harm to Plaintiffs.

Defendant argues that the record does not show “that a reasonable person in the position

of the City would have foreseen that these particular actions or inactions posed a risk of the type

of criminal harm to Plaintiffs.” Def.’s MSJ 18. Plaintiffs argue that “[a] jury could find these

acts . . . created an unreasonable and foreseeable risk of harm . . . .” Pls.’ Resp. 14. The Court

agrees with Defendant.

Foreseeability refers to the “generalized risk of the types of incidents and injuries that

occurred rather than the predictability of the actual sequence of events.” Fazzolari, 303 Or. at 13.

In negligence claims arising from third-party criminal acts, “a trier of fact must be able to find

from concrete facts that a reasonable person in the position of the defendant reasonably would

have foreseen that the person or location and circumstances posed a risk of criminal harm to

persons such as the plaintiff.” Piazza v. Kellim, 360 Or. 58, 81, 377 P.3d 492 (2016). The court

in Piazza also noted that, to prove foreseeability:

Facts pertaining to the similarity, frequency, and recency of prior criminal acts,

committed under the same or similar circumstances, or at or near the same location,

and involving the same or similar types of victims, as well as the place and character

of the location of the current criminal act, are all relevant to the determination.

Id. Notably, Oregon courts have been hesitant to find foreseeability based on “generalized

allegations” that are “attenuated” or “substantially separated in time and distance from the

pertinent events.” Id. at 82–83. In Buchler v. State By & Through Oregon Corrections Division,

the court was hesitant to adopt a rule charging a defendant “with responsibility for all intervening

intentional criminal conduct that might conceivably occur . . . where there are no claimed facts

showing defendant’s knowledge of unreasonable risk of danger to the particular plaintiffs

involved . . . [or] evidence to show any such knowledge by defendant.” 316 Or. 499, 511, 853

P.2d 798 (1993).

Here, Plaintiffs fail to show that the responding officers knew of an unreasonable risk of

danger to Plaintiffs. Specifically, Plaintiffs do not provide evidence that sufficiently establishes

that the responding officers knew that their use of spike strips at Tom’s Bar would cause

Plaintiffs’ injuries roughly two miles away. See AIR1 Video 8:53–12:09 (Sumner driving two

miles from Tom’s Bar to the site of collision). Additionally, Plaintiffs provide no evidence of

“[f]acts pertaining to the similarity, frequency, and recency of prior criminal acts, committed

under . . . similar circumstances, or at or near the same location, and involving the same or

similar types of victims, as well as the place and character of the location of the current criminal

act . . . .” Piazza, 360 Or. at 81.

In response, Plaintiffs rely on three parts of the record in support of their argument that

Plaintiffs’ injuries were foreseeable. First, Plaintiffs argue that the “[o]fficers knew [Southeast]

Division [Street] and [Southeast Cesar Chavez Boulevard] is a pedestrian-heavy, high-traffic

corridor.” Pls.’ Resp. 13. Second, Plaintiffs argue that Officer Hernandez “admitted” that public

safety is not a consideration when deploying spike strips. Id. Third, Plaintiffs argue that there

were “a bunch of people out” at the site of the crash and that it was “a pretty tight area.” Id.

(quoting Badger Dep. 15:15–17).

Even viewing these portions of the record in the light most favorable to Plaintiffs,

Plaintiffs do not explain how the responding officers “reasonably would have foreseen that

the . . . circumstances posed a risk of criminal harm to persons such as the plaintiff.” Piazza, 360

Or. at 81. First, Plaintiffs do not explain why it matters that the area around Tom’s Bar was

“pedestrian-heavy” when Sumner struck Plaintiffs nearly two miles away. Second, even if public

safety was not part of the responding officers’ protocol, the responding officers weighed the risks

of deploying spike strips anyway. At the time, the record shows that the responding officers

observed that “[Sumner was] driving really mellow” such that “[they] can get ahead of him and

throw spikes . . . .” AIR1 Video 7:32–36. They also discussed that, by deploying spike strips,

they hoped that Officer Hernandez would immobilize the stolen box truck. See id. at 8:36–40

(“Get some spikes out on [Southeast Cesar Chavez Boulevard] if you can, he’ll kinda be stuck in

[the parking lot].”). Third, even if there were “a bunch of people out” at the site of the collision

and that it was a “pretty tight area[,]” Badger Dep. 15:15–17, Plaintiffs do not explain how the

responding officers at Tom’s Bar knew this information or that they would have foreseen that

Sumner would have struck Plaintiffs where he did—two miles away from the deployment of the

spike strips, see Buchler, 316 Or. at 511 (holding no foreseeability “where there are no claimed

facts showing defendant’s knowledge of unreasonable risk of danger to the particular plaintiffs

involved” or “evidence to show any such knowledge by defendant.”). At most, Plaintiffs’

argument shows that the responding officers “mere[ly] ‘facilitat[ed]’ . . . an unintended adverse

result, where intervening intentional criminality of another person is the harm-producing

force . . . .” Buchler, 316 Or. at 511–12. That showing alone is insufficient to support liability.

Id. at 512.

Plaintiffs fail to provide sufficient evidence that the responding officers’ conduct caused

a foreseeable risk of harm to Plaintiffs. Accordingly, Plaintiffs’ negligence claim fails, and

Defendant is entitled to summary judgment.

///

///

///

CONCLUSION

The Court GRANTS Defendant City of Portland’s Motion for Summary Judgment [38].

The Parties shall submit a joint proposed judgment within 14 days of this Opinion & Order.

IT IS SO ORDERED.

DATED this 19th day of January, 2026.

AMY M. BAGGIO

United States District Judge

21 OPINION & ORDER