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Garrison v. Deshutes County6/21/2002
n Woolston. As this court explained in Miller v. Grants Pass Irr. Dist, 297 Or 312, 686 P2d 324 (1984), a public body may have discretion in choosing how it will satisfy its duty to the public but it has no discretion to choose not to fulfill its legal duty:
"If there is a legal duty to protect the public by warning of a danger or by taking preventing measures, or both, the choice of means may be discretionary, but the decision whether or not to do so at all is, by definition, not discretionary.
"This is so whether the duty derives from statutory or from common law. * * * The law itself has made that much of a policy choice. When different precautions might satisfy this duty, however, the choice of which one to use may be discretionary." Id. at 320.
Defendant does not dispute plaintiffs' proposition that the edge of the refuse pit was a known dangerous condition that obligated defendant to carry out the legal duty set out in Woolston. However, in evaluating defendant's choice of responses to the risks of harm posed by the public's foreseeable uses of the refuse pit, we must view the evidence in the light most favorable to the party opposing summary judgment.
The evidence discloses that defendant's agents identified at least two distinct, predictable risks of harm from the condition of the refuse pit and its foreseeable uses by the public. The first was the risk that the cars or trucks of customers might roll into the pit. The second was the risk that customers working near the pit, either in vehicles or on the concrete work surface, might fall into the pit. Each of those distinct risks carried the potential for grave injury or death to defendant's customers.
Responding to its duty under Woolston, defendant's agents addressed the first of those risks by affixing a railroad tie to the concrete surface a short distance from the edge of the refuse pit. The railroad tie functioned as a wheel bumper to inhibit or prevent vehicles from rolling into the pit. Defendant makes no argument that defendant designed the wheel bumper as a device to protect people against the risk of falling into the pit.
Defendant's agents also considered the second risk, discussed above, that customers working in the area might fall into the pit. That risk of injury is precisely the risk that plaintiff Gary Garrison encountered and that produced the injury that gives rise to plaintiffs' claim. Defendant's agents, however, decided to take no action to protect customers from falling into the pit or to post a warning of the danger. They made that choice after considering such factors as the safety of the public and defendant's employees, the overall efficiency of the operation, and budgetary constraints.
The court must assume that plaintiffs would produce evidence to establish that defendant's agents' choice to erect no fall protection device at the edge of the pit created an unreasonably dangerous risk of injury to customers working at that location. The question is whether ORS 30.265(3)(c) renders defendant immune from liability because, in the face of the specific and affirmative legal duty set out in Woolston, defendant's agents considered the cost of compliance and other relevant policy criteria, but chose to take no action to carry out the legal duty.
The passage from Miller, quoted above, confirms that a public body has no discretion to decide whether to satisfy a legal duty imposed by Oregon common law. Defendant simply is incorrect in arguing (1) that the range of its permissible discretionary choices included the choice to do nothing to comply with the duty stated in Woolston, or (2) that its consideration of policy-related criteria, cou
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