Fielding v. Heiderich
Fielding v. Heiderich
Opinion of the Court
Plaintiff, conservator for a minor child, brought this action to recover damages for injuries the child sustained when he was struck by a car driven by defendant Heiderieh while the child was riding a bicycle on his way home from his school. It is unnecessary to recite the facts of the accident in detail. It suffices to say only that the accident occurred in the vicinity of the school, the configuration of the road produced visibility problems and that the child was struck in an intersection where there was a stop sign in the direction that he was traveling and no stop sign facing Heiderieh.
Plaintiff alleged that Heiderieh was negligent in connection with the accident, that the defendant school district (district) was negligent in not providing traffic patrols and that the defendant county was negligent, inter alia, in not providing adequate traffic control signals or devices and in not posting adequate signs to regulate speed and to alert motorists to the presence of the school.
Plaintiffs first assignment is that the court erred by granting the district’s motion for judgment on the pleadings. ORS 336.460(1) provides:
*283 “A district school board may do all things necessary, including the expenditure of district funds, to organize, supervise, control or operate traffic patrols. A district school board may make rules relating to traffic patrols which are consistent with rules under ORS 336.470(1).” (Emphasis supplied.)
The trial court reasoned that the statute is discretionary by its terms, that the district therefore had discretion over whether or not to establish patrols and was, accordingly, immune from an action for not providing patrols. Plaintiff argues that the statute does not give the district discretion over whether to establish traffic patrols, but only over “the manner of the establishment of those patrols.” We disagree. ORS 336.460(1) is the only authorizing provision for the establishment of patrols. Its terms are discretionary, and the discretion applies to whether patrols will be provided. The trial court did not err by granting the judgment on the pleadings. Miller v. Grants Pass Irrigation, 297 Or 312, 686 P2d 324 (1984); Andresen v. Dept. of Commerce, 112 Or App 498, 829 P2d 708 (1992)
Plaintiffs next assignment assails the directed verdict for the county. She argues that she produced a prima facie case and that no expert testimony was necessary. She explains:
“Plaintiff asserts sufficient evidence was presented from which a jury could infer that the county created a hazardous condition by its design of the road, creating a duty to warn of the hazards caused by those conditions. The jury could conclude the county was negligent in failing to warn of known hazards created by the county.”
Plaintiff adds, in her reply brief:
“Plaintiff is not required as part of her prima facie case to present testimony of any specific state [sic] or administrative rule. It was the defendant’s burden to come forward with proof it had not breached a duty. The evidence which the court held it was plaintiffs duty to submit was properly evidence necessary to defendant’s case.”
Plaintiffs arguments might be correct if her claim were as she characterizes it. However, her allegations of negligence were not to the effect that the county created a hazardous condition and failed to give appropriate warnings;
Plaintiff raises four assignments of error that challenge the judgment for Heiderich. None requires discussion.
Affirmed.
Although there were other specifications in plaintiffs complaint, the only ones about which she argues on appeal are those that we have summarized. Plaintiffs argument concerning the speed limit signs is actually that the speed limit should have been lower. There were designated speed limits in the area.
Defendants moved to dismiss the appeal on the ground that the notice of appeal was defective. We denied the motion by order. In its brief, the district asks for reconsideration of the order. We adhere to the order.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.