Garrison v. Deschutes County

• Decision Date: 04 August 1999
• Citation: 162 Or. App. 160,986 P.2d 62
• Parties: Gary GARRISON and Heather Garrison, Appellants, v. DESCHUTES COUNTY, Respondent.
• Court: Oregon Court of Appeals

986 P.2d 62

162 Or. App. 160

Gary GARRISON and Heather Garrison, Appellants, v. DESCHUTES COUNTY, Respondent.

(97-CV-0397-ST; CA A101360)

Court of Appeals of Oregon.

Argued and Submitted December 15, 1998.

Decided August 4, 1999.

W. Eugene Hallman, Pendleton, argued the cause and filed the briefs for appellants.

Gregory P. Lynch, Bend, argued the cause for respondent. With him on the brief were Stanley D. Austin and Hurley, Lynch & Re.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER,¹ Judges.

ARMSTRONG, J.

Plaintiffs appeal from the dismissal of their case after the trial court had granted summary judgment to defendant on all counts of their amended complaint. We affirm.

On review of a summary judgment, we review the facts in the light most favorable to the nonmoving party, in this case plaintiffs, to determine if the movant is entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). Gary Garrison was severely injured in a fall at the Fryrear transfer station, which is owned and operated by Deschutes County. The transfer station was designed and built using "Z-wall construction," which consists of a concrete upper slab with a 14.5-foot retaining wall that drops to a concrete lower slab. The design allows persons using the transfer station to back their vehicles onto the upper slab and dump their garbage into semi-truck trailers that have been placed on the lower slab. There is a seven-inch railroad tie at the edge of the upper slab that serves as a barrier to warn drivers not to back their vehicles any further. At the time of Garrison's fall, there were no other barriers or fences on the upper slab, and there were no signs warning users of the danger of falling from the upper to the lower one.

The design and operating method of the transfer station were chosen and implemented by Larry Rice, the public works director for Deschutes County, and Al Driver, the director of solid waste operations for the county. The design engineer was Tom Blust, who worked under the supervision of Dave Horning. The Deschutes County Board of Commissioners had delegated the design and operation decisions for the transfer station to Rice and Driver. In the process of adopting the design for the transfer station, Rice and Driver considered other design options, including installing a fence, railing or other barrier at the edge of the upper slab, and other operating systems, including having patrons dump their refuse on the upper slab so that it later could be pushed off the slab and into the trailers below by transfer station employees, but determined that those options presented their own safety problems as well as economic disadvantages.

On the day that Garrison was injured, he and his wife had driven to the transfer station in their pickup with a load of refuse. Both had been to the transfer station before and, as at those earlier times, Garrison backed the pickup up to the railroad tie barrier and lowered the tailgate. When the tailgate was lowered, it protruded out over the edge of the upper slab. Both Garrison and his wife were aware of the distance of the drop from the upper to the lower slab and had discussed the importance of being careful so as not to fall. Garrison stood in the back of the pickup and threw the refuse over the edge and into the trailer below. When he was finished, he grabbed a lumber rail on the back of the pickup and attempted to swing out onto the pavement of the upper slab. In doing so, he fell to the pavement of the lower slab, suffering severe injuries to his face, head, arms and chest.

Plaintiffs brought this action seeking damages for personal injury and loss of consortium. They alleged in their amended complaint that defendant was negligent "(a) [i]n failing to maintain a premises which is reasonably safe from dangers by placing fences, barriers, or other protective devices next to the wall to prevent individuals from falling; [and] (b) [i]n failing to protect invitees from unreasonably dangerous conditions on the premises by posting signs or other warning devices warning of the immediate drop off." They further alleged that defendant knew or should have known of the dangers and conditions described in the complaint. Defendant moved for summary judgment. On plaintiffs' first theory of negligence, defendant asserted that it was immune from liability under the doctrine of discretionary immunity, because the transfer station design was the product of "a policy judgment made by a person or body with government discretion." On plaintiffs' second theory, defendant asserted that it had no duty to warn of the danger of falling from the upper to the lower slab because the danger was not concealed and the risk of harm was known and understood by plaintiffs. In response to defendant's motion, plaintiffs stated that they had retained an expert witness who would testify that defendant's design and operation of the transfer station were unreasonably dangerous. Plaintiffs also filed an affidavit to that effect.

The trial court granted defendant's motion for summary judgment but allowed plaintiffs to file a second amended complaint. In that complaint, plaintiffs repeated their first two specifications of negligence and added a third, alleging that defendant was negligent "[i]n failing to protect invitees from unreasonably dangerous conditions on the premises by adopting an operating plan which required the invitees to back their pick up trucks to the edge of the wall in order to dump." Defendant again moved for summary judgment and plaintiffs again responded with an affidavit stating that they would present expert testimony that would create a question of fact as to each of the three specifications of negligence. The trial court again granted defendant's motion for summary judgment and entered the judgment from which plaintiffs appeal.

In their first assignment of error, plaintiffs contend that the trial court erred in granting summary judgment to defendant on plaintiffs' first and third specifications of negligence because (1) there was no evidence that the decision to adopt the transfer station design and operation was made by a politically accountable governing body and (2) defendant had a non-discretionary duty to eliminate the unreasonably dangerous condition created by the transfer station's design. Plaintiffs contend that, even if the design decision was made at the proper level of authority, the evidence in the summary judgment record showed that defendant had chosen, for economic reasons, not to exercise reasonable care. We conclude that the trial court did not err.

ORS 30.265(3)(c) provides in relevant part:

"Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for * * * 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."

To be immune, the decision at issue must involve a policy judgment by a person or body with governmental discretion, not simply a routine decision made by an employee in the course of day-to-day activities. Mosley v. Portland School District No. 1J, 315 Or. 85, 89, 843 P.2d 415 (1992). Plaintiffs argue that there is no evidence that Rice and Driver were persons with governmental discretion and, therefore, that there is no basis to find that their design and operation decisions are immune from liability. See Little v. Wimmer, 303 Or. 580, 588, 739 P.2d 564 (1987) ("[I]n the absence of evidence that the decision was made as a policy judgment by a person or body with governmental discretion, the decision is not immune from liability[.]"). We disagree with plaintiffs' reading of the evidentiary record.

Defendant states, and plaintiffs do not dispute, that the Deschutes County Commission is the highest ranking decision-making body in the county. Defendant further states, and plaintiffs concede, that the task of adopting a design and operating system for the transfer station was delegated to Rice and Driver by the commission. As such, Rice and Driver stood in the place of the commission as decision makers in regard to the design and operation of the transfer station, and any decision by Rice and Driver was a decision attributable to the commission. Moreover, the type of decision that the commission delegated to Rice and Driver was precisely the type of decision normally considered immune from liability. It involved not merely "the determination of facts and simple...