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Garrison v. Deshutes County6/21/2002
mmunity, is one that has been made by a supervisor or policy-making body." 315 Or at 92. However, in assessing whether, in a particular case, a decision was made by the kinds of decision-makers to whom the statutory immunity was intended to extend, the emphasis properly is on the nature of the decision-making, not necessarily the level of office. "Although policy discretion is more likely to be found at or near the level of political responsibility, it is not simply a matter of the defendant's office but of the scope and nature of the choices delegated to him." McBride, 282 Or at 438 (emphasis added); see also Bradford v. Davis, 290 Or 855, 865, 626 P2d 1376 (1981) ("The question of immunity is * * * whether the defendant had been delegated responsibility for a policy judgment and exercised such responsibility in the act or omission alleged to constitute the tort.").
In McBride, this court noted that an official has discretion to the extent that such an official has been delegated the duty to make a value judgment of the variety discussed above. 282 Or at 437. For example, in Mosley, the court held that a high school principal's decisions about the number and location of security personnel within a high school were "responsibilities entrusted by the school board and the superintendent to the school principal, who was the responsible policy-making official within the school." 315 Or at 92.
With the foregoing standards in mind, we turn to the facts of the present case to evaluate whether the decision to build and maintain the refuse transfer station without erecting barriers at the edge of the platform that might prevent people from falling and the decision to design the station so as to require people using the facility to back a vehicle onto the platform to dump refuse were decisions that involved the making of policy by people who had been delegated the authority to make that type of policy judgment.
We begin by observing that plaintiffs have not argued that the design and construction of a refuse transfer station is a "routine decision made by employees in the course of their day-to-day activities." Moreover, Driver's affidavit, which is undisputed, demonstrates that he and Rice, in the course of selecting a design for the transfer station, made various decisions that were of a type that this court previously has considered to be "discretionary" or "the making of policy": They considered various design options for the station; they evaluated the relative effectiveness, safety and risks, as well as the relative costs and benefits, of constructing the station with and without the platform; they also considered 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. In the end, they concluded that the design that they ultimately chose -- a platform that required users to back a vehicle up to dump refuse, with no barrier other than the railroad tie to protect users from falling -- was the safest, least expensive, and easiest to use. Thus, in selecting the final design under those criteria, Rice and Driver exercised the kind of discretion that ORS 30.265(3)(c) protects -- a protection that extends to the county's operation of the refuse transfer station in accordance with that design.
Plaintiffs have attempted to characterize that final design decision differently. They contend that the county had a duty to protect the public and that the county did not satisfy that duty merely by "considering" public safety and then deciding that safety measures would not be adopted, whether due to expense, inconvenienc
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