Oregon has a “tort claims” statute that allows a citizen to make a claim against the government. A recent case, although a bit peculiar, illustrates the importance of “discretionary immunity.”
“Discretionary immunity” was originally invented by the courts, and protected government officials from any liability arising from “policy” decisions. However, Oregon has since made this legal role part of the Oregon Tort Claims Act. Under this statute, a public official and any public agency is immune from any liability for any claim based upon the government’s decision on a discretionary function, even if there is an abuse of discretion. Of course, this raises the question of what is meant by “discretion.”
A government agency makes a “discretionary” decision when it is making a policy choice among alternatives, and there is some legal authority to make such a choice. Sometimes, a government agency is charged with allocating limited resources, and will make decisions on where the resources should go. Generally, this kind a decision is discretionary, and protected from liability.
However, once a decision is made, if the government agency is negligent in carrying out the decision, or failing to adhere to its own policy, then it cannot claim it is immune from liability. For example, a government agency may decide where to install safety measures, like security cameras or traffic safety devices. This decision is subject to discretionary immunity. However, if that same agency fails to carry out its policy, or violates the policy itself, it can be responsible for resulting injuries it causes a person. In one case, the government agency is making a policy decision, but in the second, it is failing to carry out the policy.
We have handled tort claim cases against several government agencies, both state and federal, and can advise you whether or not your claim involves an issue of discretionary immunity. If you have questions, call us at 503-325-8600. We can help you know where you stand with your claim.