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Garrison v. Deshutes County6/21/2002
the legislature chose not to immunize a public body's decision to ignore a duty imposed by law to adopt safety measures to protect the public. The majority correctly describes Miller as a case in which the public body "'wholly disregard and declin to consider whatever duty it had under tort law.'" Garrison v. Deschutes County, ___ Or ____, ____ n 6 (slip op at 19 n 6) (quoting Miller, 297 Or at 321). The majority then attempts to distinguish Miller by describing this case as one in which the public body did exercise care, and that defendant's agents believed that their "choice" demonstrated "a higher level of safety, i.e., greater care, than plaintiffs' approach." Id.
For several reasons, the majority's attempt to analyze and apply Miller falls well short of the mark. Miller pointed out that the public body in that case had failed even to consider what its duty might be under tort law. The court relied on that circumstance to conclude that a court cannot say that a public body has reached an immune decision regarding governmental policy if it has not even considered its legal duty under the circumstances. But the court in Miller did not hold that the converse is true, i.e., that a public body is entitled to immunity merely for considering what its legal duty might be under the circumstances. The passages from Miller, quoted above, confirm that the court rejected that view as an extreme one that the legislature did not intend.
More puzzling is the majority's effort to portray defendant's conduct as an "exercise care" that defendant's agents believed to be more safe than what plaintiffs sought. Id. The assertion that defendant did exercise care in designing the refuse pit contradicts the majority's assumption that defendant's decision to forego any fall protection devices "might have been both wrong and negligently reached." Id. at ___ (slip op at 17). Moreover, because the case is before the court on summary judgment, we must construe the evidence in the light most favorable to plaintiffs. In view of the contention of plaintiffs' expert witness that the design of the refuse pit was unreasonably dangerous, the majority's conclusion that defendant exercised care is both irrelevant and impermissible. Lastly, the mere belief of defendant's agents in the greater safety of their design is irrelevant. Plaintiffs rely on defendant's failure to take any precautions to eliminate the known risk that customers might fall into the refuse pit -- a non-discretionary legal duty imposed by Oregon law. See Woolston, 297 Or at 557-58 (describing legal duty). While the confidence displayed by defendant's agents is understandable, it does not justify immunizing defendant for failing to adopt any precautions against a known risk of injury from falls, in accordance with Oregon law.
This is not a case in which defendant made a choice to use a device to protect against falls, but the device simply failed to function. Rather, defendant seeks discretionary immunity for its decision not to use any protection against the risk of falling, i.e., choosing not to use reasonable care to "eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm." Id. at 558. Defendant's argument, carried to its logical conclusion, would immunize a public body's decision to disregard its non-discretionary legal duty, simply because the public body believed that its policy reasons for avoiding its legal duty were superior to the policy reasons that supported creation of the legal duty in the first instance. The legislature did not intend that construction of ORS 30.265(3)(c).
Because defendant has not demonstrated that it is entitled to immunit
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