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. *281The 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 SO^GS^Xc).1 Rather, defendant’s duty, as *282summarized in Woolston, is nondiscretionary. That is, the law has made a policy choice, for defendant as well as all other landowners and occupiers who invite customers to enter their property, that mandates compliance with the legal duty described in Woolston. As this court explained in Miller v. Grants Pass Irr. Dist, 297 Or 312, 686 P2d 324 (1984), a public body may have discretion in choosing how it will satisfy its duty to the public but it has no discretion to choose not to fulfill its legal duty:
“If there is a legal duty to protect the public by warning of a danger or by taking preventing measures, or both, the choice of means may be discretionary, but the decision whether or not to do so at all is, by definition, not discretionary.
“This is so whether the duty derives from statutory or from common law. * * * The law itself has made that much of a policy choice. When different precautions might satisfy this duty, however, the choice of which one to use may be discretionary.”
Id. at 320.
Defendant does not dispute plaintiffs’ proposition that the edge of the refuse pit was a known dangerous condition that obligated defendant to carry out the legal duty set out in Woolston. However, in evaluating defendant’s choice of responses to the risks of harm posed by the public’s foreseeable uses of the refuse pit, we must view the evidence in the light most favorable to the party opposing summary judgment.
The evidence discloses that defendant’s agents identified at least two distinct, predictable risks of harm from the condition of the refuse pit and its foreseeable uses by the public. The first was the risk that the cars or trucks of customers might roll into the pit. The second was the risk that customers working near the pit, either in vehicles or on the concrete *283work surface, might fall into the pit. Each of those distinct risks carried the potential for grave injury or death to defendant’s customers.
Responding to its duty under Woolston, defendant’s agents addressed the first of those risks by affixing a railroad tie to the concrete surface a short distance from the edge of the refuse pit. The railroad tie functioned as a wheel bumper to inhibit or prevent vehicles from rolling into the pit. Defendant makes no argument that defendant designed the wheel bumper as a device to protect people against the risk of falling into the pit.
Defendant’s agents also considered the second risk, discussed above, that customers working in the area might fall into the pit. That risk of injury is precisely the risk that plaintiff Gary Garrison encountered and that produced the injury that gives rise to plaintiffs’ claim. Defendant’s agents, however, decided to take no action to protect customers from falling into the pit or to post a warning of the danger. They made that choice after considering such factors as the safety of the public and defendant’s employees, the overall efficiency of the operation, and budgetary constraints.
The court must assume that plaintiffs would produce evidence to establish that defendant’s agents’ choice to erect no fall protection device at the edge of the pit created an unreasonably dangerous risk of injury to customers working at that location. The question is whether ORS 30.265(3)(c) renders defendant immune from liability because, in the face of the specific and affirmative legal duty set out in Woolston, defendant’s agents considered the cost of compliance and other relevant policy criteria, but chose to take no action to carry out the legal duty.
The passage from Miller, quoted above, confirms that a public body has no discretion to decide whether to satisfy a legal duty imposed by Oregon common law. Defendant simply is incorrect in arguing (1) that the range of its permissible discretionary choices included the choice to do nothing to comply with the duty stated in Woolston, or (2) that its consideration of policy-related criteria, coupled with a choice to take no precautions against the risk of falls at the edge of the *284pit, qualifies under Miller as a choice of means to satisfy the duty described in Woolston.
This court’s cases refute defendant’s argument. In Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326 (1987), the court considered a school district’s alleged negligence in failing to provide adequate security while student were on school grounds, and said:
“We think that a school principal’s failure to take any precautions whatever, if that was unreasonable, is not an exercise of policy discretion * * *, though a school board’s choice between expenditures on security personnel or other types of safeguards might be.”
Id. at 22 n 20 (citing Miller).
In Mosely v. Portland School District No 1J, 315 Or 85, 843 P2d 415 (1992), this court, citing Fazzolari, underscored the distinction between making a choice among various means that will satisfy the public body’s duty to the public and making a “choice” not to fulfill a duty imposed by law:
“A public body that owes a particular duty of care (such as that owed by a school district to its students who are required to be on school premises during school hours) has wide policy discretion in choosing the means by which to carry out that duty. * * * The range of permissible choices does not, however, include the choice of not exercising care. Hs H«
Id. at 92 (citations omitted).
Finally, in Miller, the court considered and rejected defendant’s argument that, because choosing among different means to satisfy a legal duty involves elements of policy, a “choice” by a public body not to satisfy its legal duty to the public also is a discretionary function:
“ORS 30.265(3)(c) provides immunity against ‘[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty.’ A claimant might argue that when safety precautions of some kind are obligatory, the function or duty simply is not discretionary and ORS 30.265(3)(c) does not apply. But this would mean that even when a precaution is chosen, negligence in making that choice, that is to say, in the performance of the *285function, is no more immune than failure to perform it altogether. A defendant, in turn, might argue that as long as the choice among different precautions involves significant elements of policy, taking into consideration competing values, consequences, and priorities, the function is discretionary, and total disregard of the duty is as immune as failure to perform it before the injury has occurred.
“The concept of a ‘discretionary function or duty” is notoriously obscure and difficult, but we do not believe the legislature intended either of these extreme results. One extreme would swallow up the concept of discretion by holding a public body liable whenever it is found not to have actually satisfied its tort duty. The other extreme would put a premium on ignoring the duty and simply failing to exercise the function of choosing among safety measures. The dilemma posed by the statute is not inescapable. Rather, we conclude that the line runs between the extremes. The line runs between deciding whether to take precautions, a duty which under the circumstances of a particular case may not be discretionary, and deciding what precautions to take, which may or may not involve discretionary policy issues. That question, in turn, depends on the kind of examination set out in Stevenson v. State of Oregon[, 290 Or 3, 619 P2d 247 (1980),] and the other decisions cited above.”
297 Or at 320-21 (emphasis added; footnote omitted).
The emphasized passages from Miller, quoted above, confirm that the legislature chose not to immunize a public body’s decision to ignore a duty imposed by law to adopt safety measures to protect the public. The majority correctly describes Miller as a case in which the public body “ ‘wholly disregarded] and declin[ed] to consider whatever duty it had under tort law.’ ” Garrison v. Deschutes County, 334 Or 264, 277 n 6 (quoting Miller, 297 Or at 321). The majority then attempts to distinguish Miller by describing this case as one in which the public body did exercise care, and that defendant’s agents believed that their “choice” demonstrated “a higher level of safety, i.e., greater care, than plaintiffs’ approach.” Id.
For several reasons, the majority’s attempt to analyze and apply Miller falls well short of the mark. Miller pointed out that the public body in that case had failed even to consider what its duty might be under tort law. The court *286relied on that circumstance to conclude that a court cannot say that a public body has reached an immune decision regarding governmental policy if it has not even considered its legal duty under the circumstances. But the court in Miller did not hold that the converse is true, i.e., that a public body is entitled to immunity merely for considering what its legal duty might be under the circumstances. The passages from Miller, quoted above, confirm that the court rejected that view as an extreme one that the legislature did not intend.
More puzzling is the majority’s effort to portray defendant’s conduct as an “exercise [of] care” that defendant’s agents believed to be more safe than what plaintiffs sought. Id. The assertion that defendant did exercise care in designing the refuse pit contradicts the majority’s assumption that defendant’s decision to forego any fall protection devices “might have been both wrong and negligently reached.” Id. at 276. Moreover, because the case is before the court on summary judgment, we must construe the evidence in the light most favorable to plaintiffs. In view of the contention of plaintiffs’ expert witness that the design of the refuse pit was unreasonably dangerous, the majority’s conclusion that defendant exercised care is both irrelevant and impermissible. Lastly, the mere belief of defendant’s agents in the greater safety of their design is irrelevant. Plaintiffs rely on defendant’s failure to take any precautions to eliminate the known risk that customers might fall into the refuse pit — a nondiscretionary legal duty imposed by Oregon law. See Woolston, 297 Or at 557-58 (describing legal duty). While the confidence displayed by defendant’s agents is understandable, it does not justify immunizing defendant for failing to adopt any precautions against a known risk of injury from falls, in accordance with Oregon law.
This is not a case in which defendant made a choice to use a device to protect against falls, but the device simply failed to function. Rather, defendant seeks discretionary immunity for its decision not to use any protection against the risk of falling, i.e., choosing not to use reasonable care 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.” Id. at 558. Defendant’s argument, carried to *287its logical conclusion, would immunize a public body’s decision to disregard its nondiscretionary legal duty, simply because the public body believed that its policy reasons for avoiding its legal duty were superior to the policy reasons that supported creation of the legal duty in the first instance. The legislature did not intend that construction of ORS 30.265(3)(c).
Because defendant has not demonstrated that it is entitled to immunity from liability at this stage of the proceeding, the trial court should have denied defendant’s motion for summary judgment. Accordingly, I respectfully dissent.
In his concurring opinion in Miller v. Grants Pass Irr. Dist., 297 Or 312, 323-24, 686 P2d 324 (1984), Justice Lent opined that the notion of a “discretionary duty,” which the text of ORS 30.265(3)(c) embraces, is a contradiction in terms that detracts from a principled statutory analysis. He did, however, offer the following explanation, with which I agree, regarding the concepts of discretion and legal duty in the application of ORS 30.265(3)(c):
“I do have trouble envisioning a discretionary duty. ORS 30.265(1), speaking generally, makes the state or a local public body liable for its torts. In order for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule, regulation, charter, ordinance, etc.) or the common law. The duty must be identified and proclaimed to exist by a court, as a matter of law, not fact. A duty either exists or it does not. The law either commands someone to act, or refrain from acting, or it does not.
“In this case, the Irrigation District chose to build and operate a dam. Having done so, it should be held to the same duty as would any person, natural or corporate, have in the operation of a dam and the impoundment of water, to protect those on the water from an unreasonable risk of harm arising from the District’s activities in this respect. If legislation or the common law imposes a duty on a dam operator in these circumstances, there is nothing ‘discretionary’ about the existence of the duty, nor can it be described by that adjective.
“There may be, and probably is, room for discretion in choosing the manner of performance, both for a private person or a public agency, but the duty must be performed and the standard of care required by the duty must be achieved.
*282“To sum up, a discretionary function is one concerning which the governmental agency involved has power to make a choice among valid alternatives, but if there is a duty imposed by law there is no choice but to obey. If there is no duty, to which adherence is required, then the agency is concerned with a function rather than a duty. I really don’t know what a discretionary duty looks like.”