Smith v. Bend Metropolitan Park and Recreation

ORS 30.265(3) requires that a government duty must result of a decision involving public policy, exercised by a person who has the responsibility or authority to make such a decision in order to qualify for discretionary immunity.

Smith injured her ankle when she slipped on a splash pad and hit a protruding fountain cover when she ran to prevent a child from falling into a pool operated by Bend Metropolitan Park and Recreation District (Bend Metro Park). Smith brought a negligence claim against Bend Metro Park for the placement of the fountain covers and for failure to warn their presence. The trial court granted Bend Metro Park’s motion for summary judgment based on discretionary immunity under ORS 30.265(3). ORS 30.265(3) requires that a government duty must be the result of a choice, involving public policy, exercised by a person who has the responsibility or authority to make it to qualify for discretionary immunity. The Court of Appeals found there was sufficient evidence that a jury could conclude that the decision to place the fountain cover was not discretionary, since the project manager, not the board of directors, made the decision regarding the fountain covers. Moreover, the Court held that the project manager’s decision was a day-to-day activity and was therefore ministerial, not discretionary. Thus, the choice to place the fountain covers was not based in public policy by those in authority. Reversed as to summary judgment ruling on discretionary immunity; otherwise affirmed.