In these consolidated negligence and wrongful death actions plaintiffs appeal from summary judgments for the state. The issues are whether a probation officer is entitled to judicial immunity or discretionary immunity and if not whether there was evidence of negligence in this case.

Shonkwiler had been convicted of possession of a controlled substance and placed on five years' probation. As a special condition of probation she was ordered not to possess or use any illegal drugs. Within a period of five months she admitted to her probation officer on three occasions that she had used heroin. The probation officer Parashos did not report the probation violations to the sentencing court. Parashos knew that Shonkwiler regularly operated a motor vehicle. Shortly after her third admission of heroin use Shonkwiler drove her automobile off the roadway striking a group of children who were walking along the shoulder. After the accident tests of her blood and urine showed cocaine and heroin metabolites and a prescription drug.

Plaintiff Zavalas is the personal representative of two children who died as a result of the accident; plaintiff Olivares is the guardian ad litem for two other children who were injured in the same incident. *fn1 They allege that by and through the Department of Corrections and Parashos the state *fn2 was negligent in (1) failing to notify Court of Shonkwiler's probation violations; (2) failing to detain or arrest Shonkwiler or otherwise violate her probation; and (3) failing to take steps to prevent her from operating a motor vehicle when the probation officer should have known that she would operate a motor vehicle under the influence of illegal drugs. *fn3 In the summary judgment proceeding the state argued that Parashos was not negligent and that in any event she was shielded from liability by both discretionary immunity and judicial immunity. The trial court granted the state's motion for summary judgment on the ground that the probation officer acting as an agent of Court was protected by judicial immunity. *fn4

The state acknowledges that two recent decisions "cast doubt on the validity of the circuit court's reasoning." In Praggastis v. Clackamas County 305 Or 419 425-32 752 P2d 302 (1988) the Supreme Court held that absolute judicial immunity which is afforded to a Court acting in a judicial capacity also protects a clerk who performs a ministerial docketing duty when the clerk acts at the direction of Court the challenged act is a judicial function *fn5 that is part of the judicial process and Court's directive is an authorized exercise of judicial discretion. In the present case the probation officer was not acting pursuant to a Court's direction and the state does not argue that the act of reporting probation violations is a "judicial function." Parashos' reporting function was not entitled to absolute judicial immunity. See Fay v. City of Portland supra n 4 311 Or at 73-74.

In Tennyson v. Children's Services Division 308 Or 80 775 P2d 1365 (1989) Court addressed the question of whether CSD caseworkers are entitled to absolute judicial immunity under 42 USC Sec. 1983. Relying on federal case law Court determined that they are entitled only to qualified judicial immunity when performing investigations taking children into custody and limiting parents' visitation but are entitled to absolute immunity when testifying in court because witnesses are an "integral part of the judicial process." 308 Or at 89. Court also held that caseworkers are entitled to absolute immunity when filing petitions that initiate juvenile court proceedings because that act is analogous to a district Counsel's initiation of a prosecution. 308 Or at 88.

The state suggests that a probation officer's initiation of a revocation hearing presents a similar case. Initiation is accomplished not by filing a petition but by arrest or issuance of a citation. ORS 137.553(1); ORS 137.550. *fn6 Although an arrest sets in motion a process by which a probationer is quickly brought before the sentencing court for the Court to exercise judicial discretion in revoking probation for purposes of immunity there is no basis for distinguishing that arrest from a police officer's. Taking an individual into official custody is a law enforcement activity; the authority to revoke probation resides only in Court. ORS 137.550(4)(a). Probation officers have "the powers of peace officers in the execution of their duties ORS 137.620, and possess no independent authority to make revocation decisions. The fact that a procedure exists to expedite revocation does not transform the arrest of a probationer into a judicial act. *fn7 Accordingly, Parashos is not entitled to absolute judicial immunity for her decision not to arrest Shonkwiler. *fn8

The state argues that the trial court should nonetheless be affirmed on the ground that Parashos' decision not to report Shonkwiler's probation violations and her decision not to effect an arrest *fn9 were discretionary acts that are shielded from liability by discretionary immunity. ORS 30.265(3)(c). *fn10

We first address the matter of reporting. ORS 137.540(5) provides:

"Failure to abide by all general and special conditions imposed by the court and supervised by the probation department and its representatives may result in arrest and revocation of probation and will result in notification of the violation to the sentencing court." (Emphasis supplied.)

The state argues that the statute imposes no responsibility on probation officers because "no particular group of persons is told to do anything." We disagree. The statute informs a probationer that the Court who placed her on probation will be notified of any violation. Although it does not specify who will provide that information to the Court the probation officer is often the only individual in a position to do so. *fn11 When the legislature has not specified which agency is responsible for administering a law we regard the law as "impliedly allocating [its] administration * * * to the agency which was created by the legislature to carry out the same type of function with which the statute is concerned." Dilger v. School Dist.24CJ 222 Or 108 113 352 P2d 564 (1960). We conclude that the Department of Corrections acting through its probation officers is responsible for notification under ORS 137.540(5).

Although ORS 137.540(5) does not specify when the sentencing Court must be notified and which violations must be reported the state and plaintiffs agree that without contrary evidence of legislative intent *fn12 a probation officer must report all probation violations within a reasonable time. The question then is whether the officer's determination of what constitutes a reasonable time is discretionary and entitles the officer to immunity. Plaintiffs argue that the reporting function is purely ministerial and does not require the exercise of policy judgment. The state argues that the statute does not divest a probation officer of the discretion to decide which violations warrant immediate notification and which violations do not.

Parashos' decision about when to file the Shonkwiler report was "discretionary" in the sense that she was required to exercise judgment. *fn13 However that does not automatically entitle her to the protection of discretionary immunity. In Lowrimore v. Dimmitt 310 Or 291 296 797 P2d 1027 (1990) the Supreme Court reviewed previous cases and applied the rules of discretionary immunity to a police officer's decision to pursue a high speed chase through an urban area. Relying on McBride v. Magnuson 282 Or 433 578 P2d 1259 (1978) Stevenson v. State of Oregon 290 Or 3 619 P2d 247 (1980) Little v. Wimmer 303 Or 580 739 P2d 564 (1987) and Bradford v. Davis 290 Or 855 626 P2d 1376 (1981) Court said:

"These precedents state the rule that immunity will apply to decisions involving the making of policy but not to routine decisions made by employees in the course of their day-to-day activities even though the decision involves a choice among two or more courses of action. A traffic officer's decision to pursue a vehicle * * * though discretionary in the sense that it involves the exercise of judgment and choice by the officer is not one that qualifies its maker to immunity under ORS 30.265(3)(c). The making of the decision to pursue does not create any departmental policy and was not made by a person 'with governmental discretion.' (Citation omitted.) Although the decision to pursue may have been made pursuant to a county departmental policy the decision itself is not a policy judgment within the meaning of McBride v. Magnuson supra and Stevenson v. State of Oregon supra. " 310 Or at 296. (Emphasis supplied.)

Under that language a probation officer's duty to report probation violations is not a discretionary function that entitles her to immunity under ORS 30.265(3)(c). Although deciding which violations are serious enough to warrant immediate notification and which are not requires the officer to make "a choice among two or more courses of action" and involves the exercise of judgment it does not "create any departmental policy." Lowrimore v. Dimmitt supra 310 Or at 296; see also Buchler v. Oregon Corrections Div. 104 Or App 547 803 P2d 733 (1990). The same is true of the decision whether to arrest. We hold that discretionary immunity does not protect a probation officer from liability for exercising reporting duties under ORS 137.540(5) or for arrest decisions under ORS 137.550(2).

Even if the trial court erred in granting summary judgments on the basis of immunity the state argues that there is no evidence that Parashos was negligent. As we have held a probation officer must report all probation violations in a timely fashion. Timeliness is relative and depends on among other things the seriousness of the violation. Shonkwiler had been convicted for possessing a controlled substance; she had admitted to Parashos that she had committed that same crime a second third and fourth time. *fn14 The sentencing Court was not informed of the violations and no action was taken by the probation officer. Shonkwiler's acts also violated her special conditions of probation which were entitled to particular attention by the probation officer and required rigorous compliance by the probationer. *fn15

Under the circumstances a reasonable fact finder could conclude that a probation officer of ordinary prudence would have promptly reported the violations or arrested the probationer and that failure to take either action created a foreseeable and unreasonable risk of harm to individuals coming in contact with Shonkwiler. Fazzolari v. Portland School Dist. No. 1J 303 Or 1 17 734 P2d 1326 (1987). *fn16

The state argues that even if Parashos improperly decided that Shonkwiler's violations did not warrant immediate notification to Court there is no causal connection between the alleged negligence and the harm that occurred because "plaintiff's argument assumes that if Ms. Parashos had notified the sentencing court in February May and June of 1988 Ms. Shonkwiler's probation would have been revoked and she would have been taken off the streets. * * * [N]o reasonable fact finder could say that Ms. Shonkwiler's probation would have been revoked if Ms. Parashos had notified Court."

The state's argument rests on the fact that even had the sentencing Court known of Shonkwiler's new criminal activity she might not have been incarcerated.

That possibility does not defeat plaintiff's claim that the officer's failure to report the violations could have been found to have been a substantial contributing cause of Shonkwiler's conduct and plaintiffs' injuries and deaths. See Egner v. City of Portland 103 Or App 623 627 798 P2d 721 (1990). The existence of a causal link between the alleged negligence of Parashos and the harm sustained is a question of fact. Although the state's affidavits set out the probation officer's opinion that a revocation of probation "would not likely have occurred had such a recommendation been made to the sentencing court that speculation falls short of meeting the state's burden of demonstrating a lack of causation. *fn17

We conclude that the trial court erred in granting summary judgment for the state. Fore see ability, causation and the reasonableness of the officer's decisions not to report or arrest are material fact questions to be determined.

Reversed and remanded.