Dizick v. Umpqua Community College

SCHWAB, C. J.,

specially concurring.

I am in general agreement with the majority’s statement of the general principles governing tort liability of public bodies and agree with the result reached. I do not agree that immunity can be determined by the specificity of the representations made by college officials to the plaintiff. The dispositive principle in the case at bar is contained in Smith v. Cooper, 256 Or 485, 506, 475 P2d 78 (1970), in which the court stated:

"The most decisive factor but one most difficult to articulate is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury. The reason behind such factor is that the bases for the legislative or executive decision can cover the whole spectrum of the ingredients for governmental decisions such as the availability of funds, public acceptance, order of priority, etc.” (Emphasis supplied.)

The recruiting and counseling of students is an activity which either is immune or is not. Unlike the distinction between highway maintenance and highway design, it is not practically possible to divide recruiting and counseling into separate components, some of which are immune and others are not. See, e.g., City of Hermiston v. ERB, 27 Or App 755, 761, 557 P2d 681 (1976), reversed on other grounds 280 Or 291, 570 P2d 663 (1977). Assuming, arguendo, that there is *570evidence of fraudulent statements that fall within the scope of the pleadings, I would hold the Umpqua Community College immune on the ground that recruiting and counseling of students is a government activity not to be reviewed by court or jury.