Verardo v. Dept. of Transportation

To qualify for the application of discretionary immunity, the discretionary decision must: (1) be the result of a choice involving the exercise of judgment; (2) involve public policy as opposed to the routine day-to-day decision-making of public officials; and (3) be exercised by a body or person that has the responsibility or authority to make it. Turner v. State of Oregon, 359 Or 644, 652 (2016).

Verardo was injured in a car accident after striking the end piece of a guardrail located outside of the “clear zone” that was to be kept free of obstacles pursuant to Oregon Department of Transportation (ODOT) policy. Verardo brought action, alleging that he suffered personal injuries “as a direct and proximate result of [ODOT’s] negligence in failing to properly maintain” a guardrail, to which ODOT responded by invoking discretionary immunity. Verardo assigns error to the trial court’s determination that ODOT was entitled to discretionary immunity, arguing the guidelines in question do not constitute a “top-level” policy decision to which discretionary immunity would apply. To qualify for the application of discretionary immunity, the discretionary decision must: (1) be the result of a choice involving the exercise of judgment; (2) involve public policy as opposed to the routine day-to-day decision-making of public officials; and (3) be exercised by a body or person that has the responsibility or authority to make it. Turner v. State of Oregon, 359 Or 644, 652 (2016). Because the guidelines for the placement and upgrade of guardrail end pieces were policy decisions made by ODOT’s chief engineer through the exercise of judgment, and because the end piece Verardo hit complied with these policies, the trial court was correct to determine ODOT was entitled to discretionary immunity. Affirmed.