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Garrison v. Deshutes County6/21/2002
d find that a warning would have made a difference. The Court of Appeals was correct in so holding.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
DURHAM, J., dissenting.
For the reasons stated below, I believe that the majority misapplies the statutory immunity for the performance of a "discretionary function or duty" set out in ORS 30.265(3)(c).
I begin with the pertinent statutes. ORS 30.265(1) makes every public body subject to an action for damages for its employees' torts, "whether arising out of a governmental or proprietary function." The scope of that statute extends to defendant's operation of a refuse transfer site for the benefit of the citizens of Deschutes County.
ORS 30.265(1) is subject to certain exceptions. The issue in this case is whether defendant is immune from tort liability to plaintiffs by reason of the exception described in ORS 30.265(3)(c):
"Every public body and its officers, employees and agents acting within the scope of their employment or duties, or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598, are immune from liability for:
"* * * * *
"(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."
Plaintiffs contend that, on the date of the accident, defendant invited the public to use its refuse facility and that plaintiffs were business invitees at the time of the accident. According to plaintiffs, defendant knew that the large concrete garbage pit on the premises created an unreasonably dangerous condition due to the lack of any fall protection device, but failed to use reasonable care to eliminate the risk of injury to invitees or to warn of the danger.
Plaintiffs' claim invokes the legal duty owed by a land occupier to business invitees. This court summarized that duty in Woolston v. Wells, 297 Or 548, 557-58, 687 P2d 144 (1984):
"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm."
As the majority notes, because this case comes to us on review of a grant of summary judgment, we must assume the plaintiffs can produce expert testimony and other evidence, supporting the claims in their amended complaint and affidavits. Characterized in terms of the duty described in Woolston, the amended complaint and affidavits assert that defendant either failed to exercise reasonable care to discover the unreasonable risk of harm to invitees posed by the absence of any fall protection device at the edge of the refuse pit or, having discovered that dangerous condition, failed to use reasonable care either to eliminate the risk (such as by adding a suitable handrail) or to warn a foreseeable invitee of the risk.
Defendant's duty to business invitees, as described in Woolston, is not a "discretionary function or duty," to use the terms of ORS 30.265(3)(c). Rather, defendant's duty, as summarized in Woolston, is non-discretionary. That is, the law has made a policy choice, for defendant as well as all other land owners and occupiers who invite customers to enter their property, that mandates compliance with the legal duty described i
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