observing that a defect in design or planning as “ludicrous” as a road designed to end at the edge of a cliff may be appropriately passed on by judge or jury
How later courts described this case
- observing that a defect in design or planning as “ludicrous” as a road designed to end at the edge of a cliff may be appropriately passed on by judge or jury
- in suit against employees of state highway commission, “most decisive factor ... is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury”
- in determining whether discretionary immunity applies, allegation of improper maintenance of roadway may present different question from allegations relating to planning and design of roadway
- distinguishing immunity for “discretionary and judicial acts” from immunity for ministerial acts
Written by the judges who cited it.
The opinion
*513 SLOAN, J.,
dissenting.
Assuming that the rationale of the majority opinion is correct in its attempt to solve the impossible distinction between discretionary and non-discretionary functions, it seems to me that the complaint does allege a cause of action of non-discretionary acts. The complaint is capable of being read to allege that defendants created a death trap and had reason to be aware of the hazard. The evidence may not sustain the allegations but the complaint does state a cause of action. The majority assume facts not alleged in order to reach the contrary result. A decision of this consequence, in its impact on the Oregon Tort Claims Act, ORS 30.260 et seq. should not be based on assumption of fact.