dissenting.
I agree with the majority that the trial court properly granted summary judgment for the city on plaintiffs fourth specification of negligence, which essentially faults the city for not adopting a periodic and routine tree inspection and maintenance program. The decision to employ a “crisis management” program was a classic policy decision for which the city enjoys immunity under ORS 30.265(3)(c). However, I do not agree that the court properly granted summary judgment on plaintiffs first three specifications on the ground of immunity. The availability of the immunity defense as to those claims hinges on whether the 1981 report gave the city particularized knowledge of the tree’s hazardous condition which, if acted on in a timely manner, would have allowed the city to prevent the accident. Because resolution of that issue is factual and therefore should be left to a jury, I dissent.
The substance of plaintiffs first three specifications of negligence is that the city did not exercise due care in failing *7to remove or secure the limb and in failing periodically, or at any time, to inspect or prune the tree from which the limb fell. Those claims can be interpreted in two ways: (1) The city should have periodically examined or trimmed the tree and, had it done so, it would have discovered and ameliorated the tree’s dangerous condition; or (2) knowing that this particular tree needed attention, the city should have inspected or pruned the tree and, in so doing, it would have discovered that the tree was a potential hazard to passing motorists on Jefferson Street and would have taken appropriate remedial measures. The first interpretation is merely another way of attacking the city’s policy choice to employ a “crisis management” program rather than aperiodic inspection and maintenance program. Under that interpretation, the specifications would be inadequate for the reasons discussed in connection with plaintiffs fourth specification. The second interpretation, however,
“alleges knowledge of a kind that would remove defendant from the scope of the immunity afforded by ORS 30.265(3)(c), i.e., * * * specific knowledge concerning the incident involved in this case that, if acted on in a timely manner, would have enabled defendant to protect plaintiff.” Mosley v. Portland School Dist No. 1J, 315 Or 85, 93, 843 P2d 415 (1993). (Emphasis in original.)
In Mosley, the Supreme Court addressed a situation in which the plaintiffs specification of negligence was capable of being read two ways. One possible reading, which resulted in a finding that the defendant was immune from liability under ORS 30.265(3)(c), was that the specification criticized a policy choice that the defendant had made regarding the allocation of its resources. The other possible reading, which resulted in a finding that the defendant’s conduct was outside the scope of the immunity defense, was that the defendant had specific knowledge of the circumstances that placed the plaintiff in peril, yet failed to take appropriate steps to help ensure the plaintiffs safety. However, the court did not have to decide which reading to adopt, because the plaintiff did not produce any evidence that would have permitted a jury to find that the defendant had specific knowledge of the plaintiff s precarious situation. 315 Or at 93-94. Accordingly, the court did not reach the issue of “whether the availability of the immunity defense under ORS 30.265(3)(c) may at times *8depend on factual questions that properly could be submitted to a jury.” 315 Or at 94.
The issue of whether governmental immunity bars an action is ultimately a question of law for the court. Jones-Clark v. Severe, 118 Or App 270, 273, 846 P2d 1197 (1993). However, under certain circumstances, factual issues will arise in connection with the availability of the immunity defense and, when they do, I believe that those issues should be submitted to a jury for their proper resolution. Here, I would hold that there is a factual issue as to whether, under Mosley, the city may escape liability on the basis of discretionary immunity. The majority concludes otherwise, because “under the [city’s] program, a tree in the condition that the 1981 report describes is not subject to regular inspection or maintenance.” 125 Or App at 5. That the city’s discretionary policy may not have dictated that the tree be routinely examined or pruned is immaterial in determining whether there is a factual question with regard to the city’s claim of immunity. The critical inquiry here is not whether the city was derelict in performing its maintenance duties under the program, but whether the city had “specific knowledge concerning the incident involved in this case that, if acted on in a timely manner, would have enabled [it] to protect plaintiff!’s decedent].” Mosley v. Portland School Dist No. 1J, supra, 315 Or at 93. (Emphasis in original.)
Had the plaintiff in Mosley provided evidence that demonstrated that the school district knew a fight was occurring or would occur and that it then failed timely to intervene, the school district could not have successfully asserted the immunity defense by arguing that its discretionary policy did not require action in those circumstances. The same is true here. If the 1981 report provided the city with specific knowlege of the tree’s hazardous condition, then the city cannot claim immunity by arguing that its maintenance policy did not mandate that the tree receive attention.
I believe that reasonable minds could differ as to whether the 1981 report, which indicated that this particular tree “needed work,” provided the city with sufficient information and awareness concerning the tree’s dangerous condition that, if acted on in a timely fashion, i.e, sometime between 1981 and 1990, would have allowed the city to *9prevent this accident. Under these circumstances, the availability of the immunity defense must depend on a jury’s resolution of that issue of fact.
The city argues that, even if it is not immune from liability for performing discretionary acts, it is nevertheless entitled to summary judgment, because there is no evidence in the record that it was negligent in the performance of its maintenance duties. I disagree. Because this specific tree was reported in 1981 as “need[ing] work,” the city’s failure to take any action on the tree until after the accident in 1990 could be found to have created an unreasonable risk of harm to motorists using Jefferson Street. A trier of fact might reasonably conclude that the city should have known in 1981 that the tree was a danger to motorists and that, without attention, the tree’s condition would worsen, making injury to a passing driver caused by a falling limb a foreseeable result of the city’s prolonged period of inaction. Despite the facts that the city’s tree crew worked in areas near this particular tree1 and that injured crew members were frequently assigned to tree inspection duty, the tree was not pruned or inspected for a period of nearly nine years. Viewing the record in the light most favorable to plaintiff, I cannot say, as a matter of law, that there is no evidence that the city negligently carried out certain of its tree maintenance functions.
Because the majority has improperly decided this case, I dissent.
The record discloses that, every two or three years, the city pruned trees at a senior center located across an alley from this particular tree.