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 were 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 provision

of the Oregon Tort Claims Act, ORS 30.260 to 30.300, that

immunizes governmental entities from tort liability for “the

performance of or the failure to exercise or perform a discre-

tionary function or duty.” ODOT’s claim of immunity rested

on the theory that, because it has a policy of seeking high-

way 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, discretionary pol-

icy 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 mecha-

nisms 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 pre-

cluded 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 theory, 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 determining

which safety improvements to fund—and so its failure to

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 multi-

step process that ODOT used for seeking and obtaining

appropriations from the legislature for transportation proj-

ects of various sorts, including highway safety improvements.

Cite as 359 Or 644 (2016) 649

Kargel, the traffic engineer for ODOT’s Region 2 that

included Lincoln County, explained in a declaration that,

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 mainte-

nance 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 example. And, Kargel

explained, if an intersection was not on the SPIS list, ODOT

could still make a decision to fund low-cost physical improve-

ments 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 “discretionary

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 nonaction 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 noninclusion 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 10 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 outside of

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 10 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

the SPIS, such as requests from citizens, ODOT mainte-

nance personnel, and other public bodies, that could trig-

ger 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. Turner, 270 Or App

at 367. Summary judgment was not proper, the court con-

cluded, because ODOT had failed to show that it had made

658 Turner v. Dept. of Transportation

policy 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.” (Emphasis

in original.)). See also Hughes, 345 Or at 496 (“range of per-

missible choices does not * * * include the choice of not exer-

cising 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 ele-

ment 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

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

support that element of the theory at all, much less sup-

port 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 partic-

ularly adverts to ODOT’s bulletin announcing the “Quick

Fix” program and Kargel’s deposition testimony that “small

amounts of money” may be available from maintenance and

general budgets. Colip contends that at least some of the

safety improvements mentioned as possibilities in the com-

plaint and cross-complaint—specifically, parking changes

and signage on Highway 101—might have qualified for such

out-of-STIP funding. Colip also points to photographs 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 underpin-

ning of ODOT’s immunity claim is questionable, 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 nonaction 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.