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Garrison v. Deshutes County6/21/2002
n in their pickup with a load of refuse. Both had been to the transfer station before and, as at those earlier times, Garrison backed the pickup up to the railroad tie barrier and lowered the tailgate. When the tailgate was lowered, it protruded out over the edge of the upper slab. Both Garrison and his wife were aware of the distance of the drop from the upper to the lower slab and had discussed the importance of being careful so as not to fall. Garrison stood in the back of the pickup and threw the refuse over the edge and into the trailer below. When he was finished, he grabbed a lumber rail on the back of the pickup and attempted to swing out onto the pavement of the upper slab. In doing so, he fell to the pavement of the lower slab, suffering severe injuries to his face, head, arms and chest." 162 Or App at 162-63.
Plaintiffs' amended complaint alleged that the county was negligent " n failing to maintain a premises which is reasonably safe from dangers which were known or, in the exercise of reasonable care, should have been known to defendant by placing fences, barriers, or other protective devices next to the wall to prevent individuals from falling," and " n failing to protect invitees from unreasonably dangerous conditions on the premises which were known to the defendant or, in the exercise of reasonable care, should have been known to the defendant by posting signs or other warning devices warning of the immediate drop off."
The county, relying on ORS 30.265(3)(c), moved for summary judgment. It contended that, although plaintiffs had couched their first specification of negligence in terms of the county's faulty maintenance (i.e., operation) of the refuse station, the gravamen of the complaint lay in the station's allegedly faulty design; that is, the underlying basis for the allegation of negligence was the county's alleged failure to design the platform to include a railing or other barrier, thereby making the facility inherently dangerous to people dumping refuse there. The county contended that it was immune from liability for that type of claim under the doctrine of discretionary immunity. The county submitted affidavits establishing that it had delegated its authority for the design and implementation of the transfer station to the county director of solid waste operations, Driver, and to the county public works director, Rice, who then had complete decision-making authority to act.
The county further asserted that, as part of the design process, Driver and Rice had debated competing considerations such as the relative safety of the premises with and without the platform, the added maintenance and resulting cost of adding a fence, railing, or other barrier to the platform, as well as whether adding a fence, railing, or other barrier would make the platform more difficult or more dangerous to use. According to Driver's affidavit, after debating those matters, they determined that a fence, railing, or other barrier would be more of a hazard than a help. Among other reasons for reaching that conclusion, they believed that refuse could become entangled in the barrier, creating a risk for patrons or employees attempting to untangle it; that refuse that was prevented from falling over the edge by the barrier could create a slip hazard; that many people would have trouble lifting their refuse over a barrier; and that a railing might give people a false sense of security, possibly resulting in a higher risk of accident. According to Driver's affidavit, some of the same concerns also led them to conclude that placing a fence, railing, or other barrier at the edge of the platform substantially would increase the county's cost to operate the facility because more personnel would
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