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Garrison v. Deshutes County6/21/2002
pled with a choice to take no precautions against the risk of falls at the edge of the pit, qualifies under Miller as a choice of means to satisfy the duty described in Woolston.
This court's cases refute defendant's argument. In Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326 (1987), the court considered a school district's alleged negligence in failing to provide adequate security while student were on school grounds, and said:
"We think that a school principal's failure to take any precautions whatever, if that was unreasonable, is not an exercise of policy discretion * * *, though a school board's choice between expenditures on security personnel or other types of safeguards might be." Id. at 22 n 20 (citing Miller).
In Mosely v. Portland School District No 1J, 315 Or 85, 843 P2d 415 (1992), this court, citing Fazzolari, underscored the distinction between making a choice among various means that will satisfy the public body's duty to the public and making a "choice" not to fulfill a duty imposed by law:
"A public body that owes a particular duty of care (such as that owed by a school district to its students who are required to be on school premises during school hours) has wide policy discretion in choosing the means by which to carry out that duty. * * * The range of permissible choices does not, however, include the choice of not exercising care. * * *" Id. at 92 (citations omitted).
Finally, in Miller, the court considered and rejected defendant's argument that, because choosing among different means to satisfy a legal duty involves elements of policy, a "choice" by a public body not to satisfy its legal duty to the public also is a discretionary function:
"ORS 30.265(3)(c) provides immunity against ' ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty.' A claimant might argue that when safety precautions of some kind are obligatory, the function or duty simply is not discretionary and ORS 30.265(3)(c) does not apply. But this would mean that even when a precaution is chosen, negligence in making that choice, that is to say, in the performance of the function, is no more immune than failure to perform it altogether. A defendant, in turn, might argue that as long as the choice among different precautions involves significant elements of policy, taking into consideration competing values, consequences, and priorities, the function is discretionary, and total disregard of the duty is as immune as failure to perform it before the injury has occurred.
"The concept of a 'discretionary function or duty' is notoriously obscure and difficult, but we do not believe the legislature intended either of these extreme results. One extreme would swallow up the concept of discretion by holding a public body liable whenever it is found not to have actually satisfied its tort duty. The other extreme would put a premium on ignoring the duty and simply failing to exercise the function of choosing among safety measures. The dilemma posed by the statute is not inescapable. Rather, we conclude that the line runs between the extremes. The line runs between deciding whether to take precautions, a duty which under the circumstances of a particular case may not be discretionary, and deciding what precautions to take, which may or may not involve discretionary policy issues. That question, in turn, depends on the kind of examination set out in Stevenson v. State of Oregon[, 290 Or 3, 619 P2d 247 (1980),] and the other decisions cited above." 297 Or at 320-21 (emphasis added, footnote omitted).
The underscored passages from Miller, quoted above, confirm that
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