assuming that plaintiffs’ claims, which included a claim for negligent or reckless maintenance of a nuisance, were governed by the OTCA
How later courts described this case
- assuming that plaintiffs’ claims, which included a claim for negligent or reckless maintenance of a nuisance, were governed by the OTCA
- discretionary immunity applies to actions that embody “a choice among alternative public policies by persons to whom responsibility for such policies have been delegated”
- discretionary immunity applies to *177 actions that embody “a choice among alternative public policies by persons to whom responsibility for such policies have been delegated”
- "In order for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule, regulation, charter, ordinance, etc.) or the common law."
Written by the judges who cited it.
The opinion
LENT, J.,
concurring.
I concur in the result as to both defendants. I write separately to call attention to a statutory textual problem, which could be ameliorated, if not obviated, by the legislature now that we have had some 16 years of experience under the Oregon Tort Claims Act.
We are concerned in this case with the immunity from liability for:
“[ORS 30.265(3)] (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.” (Emphasis added.)
The first question which leaps to mind is whether the adjective “discretionary” was intended to modify both of the nouns “function” and “duty.” All of our decisions involving this *323 statute seem to assume that it does. This is probably a correct interpretation of legislative intent if for no other reason than the reference to “discretion” in the clause immediately following the word “duty.”
I have no difficulty in envisioning a discretionary function. I think one of the most obvious examples is one present in the case at bar. ORS 488.600(1) grants to the Oregon State Marine Board power or authority to “make” described regulations but does not require the Board to make regulations. The statutory grant of immunity protects this state agency in choosing whether to adopt regulations, a decision requiring consideration of a range of policy factors and depending upon described local conditions.
As cases have been presented to this court, however, in which immunity has been claimed under ORS 30.265(3) (c), the litigants have not sought to differentiate between discretionary function and discretionary duty; rather, they have presented the claim in the same way as has the legislature worded the statute, i.e., as if the four words underscored above embraced but a single concept. These presentations have led the court into doing the same. I am not at all sure that this leads to principled analysis.
I do have trouble envisioning a discretionary duty. ORS 30.265(1), speaking generally, makes the state or a local public body liable for its torts. In order for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule, regulation, charter, ordinance, etc.) or the common law. The duty must be identified and proclaimed to exist by a court, as a matter of law, not fact. A duty either exists or it does not. The law either commands someone to act, or refrain from acting, or it does not.
In this case, the Irrigation District chose to build and operate a dam. Having done so, it should be held to the same duty as would any person, natural or corporate, have in the operation of a dam and the impoundment of water, to protect those on the water from an unreasonable risk of harm arising from the District’s activities in this respect. If legislation or the common law imposes a duty on a dam operator in these circumstances, there is nothing “discretionary” about the existence of the duty, nor can it be described by that adjective.
*324 There may be, and probably is, room for discretion in choosing the manner of performance, both for a private person or a public agency, but the duty must be performed and the standard of care required by the duty must be achieved.
To sum up, a discretionary function is one concerning which the governmental agency involved has power to make a choice among valid alternatives, but if there is a duty imposed by law there is no choice but to obey. If there is no duty, to which adherence is required, then the agency is concerned with a function rather than a duty. I really don’t know what a discretionary duty looks like.