Gazitt v. City of Portland

Summary judgment based on discretionary immunity is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12, 165 P3d 1177 (2007). A court must then analyze entitlement to immunity “with respect to each distinct alleged specification of negligence.” Robbins v. City of Medford, 284 Or App 592, 596 n 3, 393 P3d 731 (2017).

Gazitt, representing Coe’s estate, appealed a limited judgment dismissing her wrongful death claim against the City of Portland. Gazitt assigned error to the trial court’s grant of summary judgment based on discretionary immunity. Gazitt argued that the City’s three transportation policies did not establish immunity for all six negligence specifications and that evidence disputed the City’s claimed lack of notice. The City argued that its Comprehensive Plans, PedPDX, and complaint-based system immunized its challenged parking and infrastructure decisions. Because discretionary immunity is an affirmative defense, summary judgment is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12, 165 P3d 1177 (2007). A court must analyze entitlement to immunity “with respect to each distinct alleged specification of negligence.” Robbins v. City of Medford, 284 Or App 592, 596, 393 P3d 731 (2017). The Court held that the City failed to establish discretionary immunity under any of its policies. The Comprehensive Plans and PedPDX addressed only whether parking would remain or be removed, but Gazitt’s allegations also concerned other ways to improve sight distance, including reduced speed limits, traffic signals, turn restrictions, and warning signs. Thus, even if the parking decisions were discretionary, they did not provide a complete defense to any negligence specification. The complaint-based policy also depended on the City’s assertion that it lacked notice of visibility problems. A 2010 email specifically reported visibility concerns at the intersection, creating a factual dispute over that essential premise. Reversed and remanded.