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Garrison v. Deshutes County6/21/2002
e, or some other reason. In effect, plaintiffs assert that the county owed a duty of care to the public that used the refuse transfer station and simply chose not to exercise care. Under this court's decision in Mosley, they contend, that choice was not within the permissible range of options available to the county and, therefore, was not entitled to immunity.
Plaintiffs' argument is premised on a mischaracterization of the undisputed facts. According to Driver's affidavit, Driver and Rice actively considered the relative risks and benefits of including in the final design just the sort of fall protection devices that plaintiffs contend are required to protect the public. For various reasons, Driver and Rice concluded that protective barriers actually would make the platform less safe. We assume for purposes of this opinion that that conclusion might have been both wrong and negligently reached. Nonetheless, the uncontroverted evidence of that thinking process establishes conclusively that this is not a case in which the decision-makers simply disregarded their duty to protect the public. On the contrary, with their decision, even if it was flawed, they exercised their discretion and chose to protect the public in a particular way. Plaintiffs wish to argue that the county should have done something more, or something different, but that argument is the kind of second-guessing that is defeated by immunity under ORS 30.265(3)(c).
Plaintiffs also argue that the decisions that Rice and Driver made cannot qualify as discretionary ones because Rice and Driver are not the kinds of decision-makers to whom statutory immunity is intended to extend. They characterize Rice and Driver as "low-level ministerial employees" whose decisions cannot be accorded protection under ORS 30.265(3)(c), because they were not at or near a "level of political responsibility." They maintain that the Court of Appeals, in ruling to the contrary, broadly expanded the discretionary immunity doctrine to include decisions made by "low-level functionar ."
Plaintiffs have offered no evidence to support those contentions. On the contrary, they conceded that the county commission delegated the responsibility for designing and constructing the transfer station to Rice, the public works director, and Driver, the director of solid waste operations. Moreover, they have not disputed that the county commission was the county's highest decision-making body or that the commission had the authority to delegate that duty to Rice and Driver, although the decision was one that the commission could have made itself. In short, the undisputed evidence demonstrates that the safety design of the transfer station was the result of a discretionary policy judgment, made by individuals who had been delegated the authority to make that judgment.
Finally, and although plaintiffs asserted on summary judgment that they had an expert who would testify that the design for the transfer station that Rice and Driver selected was "unreasonably dangerous," such evidence indicates only an abuse of discretion. It follows that, on the record before it, the trial court properly granted summary judgment to the county respecting plaintiffs' first and third specifications of negligence.
Both the trial court and the Court of Appeals held that the county also was entitled to summary judgment on plaintiffs' allegation that it failed to protect plaintiffs, as invitees, from an unreasonably dangerous condition "by posting signs or other warning devices warning of the immediate drop off," because that dangerous condition was obvious and the lack of any warning did not cause plaintiffs any injury . The Court of Appeals stated:
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