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Garrison v. Deshutes County6/21/2002
be required to keep the area free of debris. In the end, they concluded that placing a railroad tie at the edge of the platform was necessary to ensure that no one backed a vehicle beyond where it was safe, but they rejected all other types of barriers to protect against falls.
The county contended that the foregoing decision-making process resulted in precisely the type of policy choice to which immunity under ORS 30.265(3)(c) attaches and that it was immaterial that, in hindsight, some might argue that a different design would have prevented plaintiffs' injuries in the present case. As for the allegation concerning the county's failure to warn plaintiffs of the danger presented by the platform, the county contended that the danger was not concealed and that plaintiffs admitted in their depositions that they were well aware of the danger, having dumped refuse there before.
Plaintiffs responded to the summary judgment motion by asserting that they had retained an expert who would testify at trial that the design of the transfer station was unreasonably dangerous. In addition, they argued that applicable Oregon workplace safety rules would have prohibited any county employees from working near the edge of the platform without fall protection. Plaintiffs acknowledged that those safety rules did not protect invitees to the premises expressly, but contended that the rules nonetheless set the standard of care in the present case. Finally, plaintiffs asserted that the decision to design the transfer station without a fence, railing, or other barrier was not a policy decision entitled to immunity because (they claimed) the decision was made by "lower level employees" and because "no precautions of any kind were taken," notwithstanding that statutory or common law required that some precautions be taken. Plaintiffs offered no evidence to refute either the Rice or the Driver affidavits.
Respecting the second allegation of negligence, based on failure to warn, plaintiffs contended that the county had a duty to warn of any known dangerous condition on its land and had failed to do so.
The trial court granted the county's motion for summary judgment. In explaining its ruling on the first specification of negligence, the court noted that this was not a case in which the county failed to consider safety at all. The court stated that, whatever the applicable standard of care might be, and whatever plaintiffs' expert might say about the inherently dangerous design of the facility, it was clear from Driver's affidavit that he chose the design of the facility after careful consideration of various safety concerns raised by different design options, including those that plaintiffs favored. The court concluded that " t's precisely this type of governmental decision that is appropriate for discretionary immunity, even if it's a dangerous design and even if it is negligent."
The trial court also rejected plaintiffs' failure-to-warn claim, based on what the court termed a "lack of causation." The court observed that the danger was open and obvious and, in light of plaintiffs' deposition testimony that they were well aware of the risk, the failure to warn did not expose them to any greater risk of harm than would have been present had they been warned. Accordingly, the court concluded that there was no genuine issue of fact or evidence in the record from which a reasonable juror could have found that there was a causal link of any kind between the failure to warn and the accident that befell Garrison.
Before the court issued its ruling granting the county's motion for summary judgment, plaintiffs filed a second amended complaint, which added a third specification o
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