Garrison v. Deschutes County

• Decision Date: 21 June 2002
• Citation: 48 P.3d 807,334 Or. 264
• Parties: Gary GARRISON and Heather Garrison, Petitioners on Review, v. DESCHUTES COUNTY, Respondent on Review.
• Court: Oregon Supreme Court

48 P.3d 807

334 Or. 264

Gary GARRISON and Heather Garrison, Petitioners on Review, v. DESCHUTES COUNTY, Respondent on Review.

(CC 96-CV-0397-ST; CA A101360; SC S46886).

Supreme Court of Oregon.

Argued and Submitted November 3, 2000.

Decided June 21, 2002.

W. Eugene Hallman, Pendleton, argued the cause and filed the brief for petitioners on review. With him on the brief was Brant M. Medonich, Bend.

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

Kathryn H. Clarke, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.²

GILLETTE, J.

This personal injury case requires us to examine the scope of the immunity from liability that the Oregon Tort Claims Act (OTCA) grants to certain kinds of discretionary decisions of a public body. The case arose when plaintiff Gary Garrison³ was injured when he fell from a raised concrete slab onto a lower slab at a Deschutes County (county) refuse transfer station. Plaintiffs brought the present action against the county, alleging three specifications of negligence. The county moved for summary judgment, asserting that, by virtue of ORS 30.265(3)(c),⁴ it was immune from liability for the acts that plaintiffs alleged. The trial court agreed. On plaintiffs' appeal, the Court of Appeals affirmed, holding that: (1) the doctrine of qualified immunity protected the exercise of discretion by county employees in designing the transfer station; and (2) the county's failure to warn plaintiffs of the obvious danger of falling off the higher slab did not expose plaintiffs to a greater risk of harm than if they had been warned. Garrison v. Deschutes County, 162 Or.App. 160, 986 P.2d 62 (1999). We allowed plaintiffs' petition for review and now affirm.

Because this case comes to us on review of a grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in favor of plaintiffs, the nonmoving parties. Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. The parties accept the following recitation of the facts by the Court of Appeals:

"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."

162 Or.App. at 162-63, 986 P.2d 62.

Plaintiffs' amended complaint alleged that the county was negligent "[i]n failing to maintain a premises which is reasonably safe from dangers which were known or, in the exercise of reasonable care, should have been known to defendant by placing fences, barriers, or other protective devices next to the wall to prevent individuals from falling," and "[i]n failing to protect invitees from unreasonably dangerous conditions on the premises which were known to the defendant or, in the exercise of reasonable care, should have been known to the defendant by posting signs or other warning devices warning of the immediate drop off."

The county, relying on ORS 30.265(3)(c), moved for summary judgment. It contended that, although plaintiffs had couched their first specification of negligence in terms of the county's faulty maintenance (i.e., operation) of the refuse station, the gravamen of the complaint lay in the station's allegedly faulty design; that is, the underlying basis for the allegation of negligence was the county's alleged failure to design the platform to include a railing or other barrier, thereby making the facility inherently dangerous to people dumping refuse there. The county contended that it was immune from liability for that type of claim under the doctrine of discretionary immunity. The county submitted affidavits establishing that it had delegated its authority for the design and implementation of the transfer station to the county director of solid waste operations, Driver, and to the county public works director, Rice, who then had complete decision-making authority to act.

The county further asserted that, as part of the design process, Driver and Rice had debated competing considerations such as the relative safety of the premises with and without the platform, 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. According to Driver's affidavit, after debating those matters, they determined that a fence, railing, or other barrier would be more of a hazard than a help. Among other reasons for reaching that conclusion, they believed that refuse could become entangled in the barrier, creating a risk for patrons or employees attempting to untangle it; that refuse that was prevented from falling over the edge by the barrier could create a slip hazard; that many people would have trouble lifting their refuse over a barrier; and that a railing might give people a false sense of security, possibly resulting in a higher risk of accident. According to Driver's affidavit, some of the same concerns also led them to conclude that placing a fence, railing, or other barrier at the edge of the platform substantially would increase the county's cost to operate the facility because more personnel would be required to keep the area free of debris. In the end, they concluded that placing a railroad tie at the edge of the platform was necessary to ensure that no one backed a vehicle beyond where it was safe, but they rejected all other types of barriers to protect against falls.

The county contended that the foregoing decision-making process resulted in precisely the type of policy choice to which immunity under ORS 30.265(3)(c) attaches and that it was immaterial that, in hindsight, some might argue that a different design would have prevented plaintiffs' injuries in the present case. As for the allegation concerning the county's failure to warn plaintiffs of the danger presented by the platform, the county contended that the danger was not concealed and that plaintiffs admitted in their depositions that they were well aware of the danger, having dumped refuse there before.

Plaintiffs responded to the summary judgment motion by asserting that they had retained an expert who would testify at trial that the design of the transfer station was unreasonably dangerous. In addition, they argued that applicable Oregon workplace safety rules would have prohibited any county employees from working near the edge of the platform without fall protection. Plaintiffs acknowledged that those safety rules did not protect invitees to the premises expressly, but contended that the rules nonetheless set the standard of care in the present case. Finally, plaintiffs asserted that the decision to design the transfer station without a fence, railing, or other barrier was not a policy decision entitled to immunity because (they claimed) the decision was made by "lower level employees" and because "no precautions of any kind were taken," notwithstanding that statutory or common law required that some precautions be taken. Plaintiffs offered no evidence to refute either the Rice or the Driver affidavits.

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