# Stevenson v. State Ex Rel. Department of Transportation > Oregon Supreme Court · November 4, 1980 · 290 Or. 3 URL: https://www.frixlaw.com/law-library/cases/9618637 ## Case - **Full name:** STEVENSON, Petitioner, v. STATE Ex Rel DEPARTMENT OF TRANSPORTATION, HIGHWAY DIVISION, Respondent, and LINDER, Petitioner - **Court:** Oregon Supreme Court - **Decided:** November 4, 1980 - **Citations:** 290 Or. 3; 619 P.2d 247; 1980 Ore. LEXIS 1143 - **Precedential status:** Published - **Opinion:** Concurrence by Tanzer - **Judges:** Denecke, Tongue, Howell, Lent, Peterson, Tanzer - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9618637 ## How later opinions describe it (automated extraction) - explaining that in situations where it is not clear that the decision was made as a matter of policy, “no determination about immunity will be possible until it is known how the particular decision was made” - describing the decisions made in road maintenance as “decisions which do not involve the making of public policy; for example, the decision whether to make a safety fence two feet rather than three feet high or the decision to first remove the snow from Street A rather than fr… - explaining that when complaint alleges multiple acts of negligence, court should determine whether conduct is immune with respect to each alleged negligent act ## Opinion text TANZER, J., concurring. I write separately because I believe the allegations of negligence based on placement and shielding of the signal can be analyzed more simply and clearly. Particularly, the responsibility , of judge and jury in determining whether acts are discretionary or nondiscretionary should be delineated in light of the facts of this case. I agree that "design” and "maintenance,” as those terms are used in Smith v. Cooper, are often analytically helpful as a shorthand sorting device, but may not be an adequate formula for the decision of close cases. Particularly, they do not provide an appropriate division of discretionary and nondiscretionary acts in this case. The underlying theory of Smith v. Cooper, however, that executive and legislative decisions involving governmental decisions are not subject to judicial review, provides a sound basis *17 for analysis in this case and I take it that that theory is reaffirmed. The preliminary question of law before the court is whether the acts alleged as negligent are immune. If there is no dispute of fact, this can be done prior to trial. 1 If the facts are disputed, the court should identify the facts upon which the jury can find liability and those upon which there can be no liability and instruct the jury appropriately. Here, the second allegation of negligence was that the signal on the highway was improperly shielded to avoid peripheral visibility: "(2) That defendant failed to properly shield or direct by visors, louvers, or other means each traffic control signal at said intersection so that an approaching motorist upon the Redwood Avenue could see only the signal controlling his movement. The analysis should he in two steps: (1) The Highway Division adopted the Uniform Traffic Control Device Manual, as a set of national standards for traffic signals. That adoption of policy was an act of governmental discretion under QRS 30.265(3)(c); the state is therefore immune from liability for any claim resulting from that discretionary act, even if discretion was abused. *18 (2) The making and installation of a particular signal is an act in implementation of that policy. If it is done in conformity to that policy, then it is immune as part of the "discretionary function or duty.” If the implementation is done in conformity with the policy, it has the protection of law accorded to the policy itself. If not, and if there is no other discretionary reason for the deviation from policy then there is no immunity. The discretionary decision applicable to the second allegation of negligence is found in the manual. The manual begins with general provisions that traffic control devices should be safe, effective, etc. The provision specifically applicable to the allegation in this case deals with direction and shielding of signals: "* * * each signal indication shall, to the extent practicable, be shielded or directed by visors, louvers, or other means so that an approaching driver can see only the indication controlling his movement. Tunnel visors exceeding 12 inches in length shall not be used on free swinging signals.” Manual, Part IV, B-ll, page 224. Under these circumstances, the preliminary determination of law for the court is simply that if the signal was shielded and directed as required by the manual, the defendant is immune from liability; if not, the court may enforce liability. For various procedural reasons, the trial court did not go through the process of identifying immune and non-immune conduct. The net result, however, was the same. There is no need for an instruction to mention the terms "immunity” or "discretionary function or duty” if the court simply instructs them as to which facts are actionable and which are not. There was evidence that a driver on the avenue can see another signal indication than that controlling his movement. The case was submitted to the jury under instructions that installation of a signal in a manner which allows that condition can be negligence. That instruction identified for the jury, as a matter of law, the acts which would constitute non-immune, non-discretionary conduct. There is no reversible error on the second allegation of negligence. Therefore, I concur with the majority that the judgment must be reinstated. In Comley v. State Bd. of Higher Ed., 35 Or App 465 at 468-69 , 582 P2d 443 (1978), the Court of Appeals observed: "The issue of immunity may properly be raised by demurrer, Smith v. Cooper, 256 Or 485, 488 , 475 P2d 78 , 45 ALR3d 857 (1970), but that is not the only means of interposing an immunity defense. Wright v. Scappoose School Dist., 25 Or App 103, 106 , 548 P2d 535 (1976). The determination of whether immunity precludes a plaintiff’s recovery is a question of law for the court. Weaver v. Lane County, 10 Or App 281, 299 , 499 P2d 1351 (1972). As such, unless it is waived, the defense may be raised in any pleading or motion appropriate for joining legal issues. See, e.g., Hulen v. City of Hermiston, 30 Or App 1141 , 569 P2d 665 (1977) (motion to strike treated as demurrer); Lanning v. State Hwy. Comm., 15 Or App 310 , 515 P2d 1355 (1973) (motion for directed verdict and nonsuit); Sullivan v. State, 15 Or App 149 , 515 P2d 1355 (1973) (motion for directed verdict); Weaver v. Lane County, supra (motion for judgment N.O. V.). Summary judgment is appropriate where there are no material issues of fact and the moving party is entitled to judgment as a matter of law. ORS 18.105(3). If there are no disputed facts relevant to the issue of immunity, it may therefore be raised and resolved on a motion for summary judgment. See, Higgins v. Redding, 34 Or App 1029 , 580 P2d 580 (1978).” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9618637. Public record. Not legal advice.