Gazitt v. City of Portland

No. 559 June 25, 2025 407 IN THE COURT OF APPEALS OF THE STATE OF OREGON Sheri GAZITT, as Personal Representative of the Estate of Elijah Edward Coe, Plaintiff-Appellant, v. CITY OF PORTLAND, a public body, Defendant-Respondent, and Eric M. WHITFIELD, an individual, Defendant. Multnomah County Circuit Court 20CV08246; A179074 Shelley D. Russell, Judge. Argued and submitted May 13, 2024. Cody Hoesly argued the cause for appellant. Also on the opening brief were Larkins Vacura Kayser, LLP; and Scott F. Kocher and Forum Law Group LLC. On the reply brief were Cody Hoesly and Barg Singer Hoesly, PC; and Scott F. Kocher and Forum Law Group, LLC. Denis Vannier argued the cause and filed the brief for respondent. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. ORTEGA, P. J. Reversed and remanded. 408 Gazitt v. City of Portland Cite as 341 Or App 407 (2025) 409 ORTEGA, P. J. Plaintiff brought this wrongful death suit as per- sonal representative of the estate of Elijah Coe, who died from injuries sustained in a traffic collision at the intersec- tion of East Burnside Street and 17th Avenue in Portland. She appeals a limited judgment dismissing her negligence claim against the City of Portland entered after the trial court granted summary judgment in favor of the city on the ground that the discretionary immunity provision of the Oregon Tort Claims Act, ORS 30.265(6)(c), bars plain- tiff’s claim.1 We conclude that the city failed to establish the affirmative defense of discretionary immunity to plaintiff’s negligence allegations as a matter of law and that the trial court therefore erred in granting summary judgment to the city on that basis. We reverse and remand. On review of a grant of summary judgment, we must view the summary judgment record in the light most favorable to the nonmoving party—in this case, plaintiff— and determine whether there are genuine issues of material fact and whether the city, as the moving party, is entitled to judgment as a matter of law on its affirmative defense of discretionary immunity. ORCP 47 C; Robbins v. City of Medford, 284 Or App 592, 595-96, 393 P3d 731 (2017). We briefly set forth the background facts with that standard in mind and include additional facts in our analysis. On the afternoon of May 3, 2019, signage on East Burnside Street expressly allowed vehicle parking along the south curb up to the intersection with 17th Avenue. Coe was riding his motorcycle eastbound on East Burnside Street. Whitfield was driving northbound on Southeast 17th Avenue and stopped at the stop sign where it inter- sects with East Burnside. Consistent with the parking sig- nage, vehicles had parked along the south curb of Burnside, blocking the view that Coe and Whitfield had of each other. Whitfield attempted to turn left (westbound) onto East Burnside, crossing the eastbound lane as Coe approached in 1 Plaintiff’s claims against defendant Eric M. Whitfield have been stayed pending this appeal. The trial court also granted summary judgment in favor of the city on plaintiff’s negligence per se claim, and plaintiff does not challenge that ruling on appeal. 410 Gazitt v. City of Portland the opposite direction. Coe swerved around Whitfield’s car to avoid colliding with it. In doing so, Coe veered into the westbound lane and collided head-on with a car travelling westbound on Burnside. Coe died of injuries he sustained in the crash. Plaintiff’s operative complaint alleges that the city was negligent in six different ways, all of which concerned its knowing and intentional failure to design or maintain reasonably safe sight distances at the intersection:2 “(a) In failing to provide required sight distances for peo- ple traveling eastbound on East Burnside approaching 17th Avenue, and for people traveling northbound on 17th Avenue at the intersection; “(b) In failing to design, maintain or remedy deficiencies at the intersection to ensure adequate sight distance for people using the intersection; “(c) In knowingly ignoring required sight distance standards; “(d) In the alternative or in combination with providing parking setbacks,[3] failing to adopt other mitigation mea- sures such as posting lower speed limits in the sight dis- tance-restricted areas, to make the required sight trian- gles smaller; “(e) In failing to make travel at the intersection of East Burnside Street and SE 17th Avenue reasonably safe for the pub