Gazitt v. City of Portland

To prevail by raising an affirmative defense of discretionary immunity, the city must make a case with respect to all the particular negligence allegations. See Robbins v. City of Medford, 284 Or App 592, 600 (2017).

Personal representative of the decedent’s estate appeals limited judgment dismissing a negligence claim stemming from a crash in an intersection that resulted in the decedent’s death. On appeal, the personal representative argued that all the ways in which the city was negligent involved its knowing and intentional failure to design or maintain adequately safe sight distances at the intersection where the collision occurred. The City raised the affirmative defense of discretionary immunity pursuant to ORS 30.265(6)(c). To prevail by raising an affirmative defense of discretionary immunity, the city must make a case with respect to all the particular negligence allegations. See Robbins v. City of Medford, 284 Or App 592, 600 (2017). The Court reasoned that even if the city successfully established that it was entitled to discretionary immunity regarding its decision on parking at the intersection under its policies, it failed to address several other means by which it could have mitigated the safe sight distance issues. Accordingly, the Court concluded that the city was not entitled to discretionary immunity on the negligence claim because it provided only a partial affirmative defense by failing to establish an affirmative defense as to each negligence allegation. Reversed and remanded.