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Garrison v. Deshutes County6/21/2002
f negligence. In that amended complaint, plaintiffs alleged that the county was negligent in adopting an operating plan for the transfer station that required patrons to back a vehicle up to the edge of platform to dump refuse. The county moved for summary judgment on that claim as well, arguing that that design decision, like the one underlying the first specification of negligence, also was entitled to immunity, for the same reasons set out in its earlier brief. Plaintiffs responded by incorporating by reference their earlier arguments and by attaching, in whole, transcripts of the depositions of Driver and the county design engineer, Blust. Plaintiffs, however, did not make any particular argument based on those deposition transcripts nor did they point the court to any particular passage in those documents that would have supported their arguments. The trial court allowed the county's motion and dismissed the second amended complaint.
On plaintiffs' subsequent appeal, the Court of Appeals concluded that the circuit court did not err in granting summary judgment. As to plaintiffs' claims that the transfer station was unsafe because of the lack of a barrier at the edge of the platform and because it required people to back up to the edge to dump refuse, the Court of Appeals determined that ORS 30.265(3)(c) protected the county's decision-making process from liability in designing the site. Garrison, 162 Or App at 167. As for plaintiffs' claim that the county was liable for its failure to warn of the danger of the drop-off, the Court of Appeals agreed that the danger was an obvious one, that plaintiffs were fully aware of the danger, and, consequently, that the absence of a warning did not expose plaintiffs to any greater risk of harm than if they had been warned. Id. at 168-69. As noted, we allowed plaintiffs' petition for review.
Plaintiffs' first and third specifications of negligence, concerning the county's allegedly negligent design of the transfer station, invoke the general common-law responsibility of all persons to avoid conduct that creates a specific risk of injury to others, as well as the special duties that a possessor of land owes to business invitees. In similar cases involving private landowners and occupiers, this court typically begins by examining the claims to determine whether the property owner's alleged conduct was unreasonable in the circumstances and created a foreseeable, unreasonable risk of harm to the plaintiff. See Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 438, 760 P2d 874 (1988) (illustrating proposition). A private landowner or occupier of land in a position similar to the county's would be required to take care to protect patrons on the premises from injuries resulting from known, dangerous conditions on the premises or, at least, to warn them of the danger. Woolston v. Wells, 297 Or 548, 557-58, 687 P2d 144 (1984).
Because this case arises out of a grant of summary judgment to the county, we assume that plaintiffs would be able to produce evidence at trial that the county, if it had been a private entity, would have been required to exercise care to protect plaintiffs from accidently falling over the edge of the platform while dumping refuse. We assume also that plaintiffs could produce evidence that the county was negligent in deciding not to install a barrier to protect patrons from falling over the edge of the platform and in designing the platform in a way that required patrons to back their vehicles up to the edge of the platform to dump refuse. In other words, we assume that the county, were it a private party, could have been found liable to plaintiffs for their injuries.
The county is not a private entity, however. The q
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