The opinion
*834 RICHARDSON, J.,
dissenting.
I agree with the majority’s holding that the irrigation district is a public body entitled to the protections afforded by the Tort Claims Act. I disagree with the majority’s holding that, as a matter of law, from the facts set forth in the materials submitted regarding the motion for summary judgment, the irrigation district is not responsible for maintaining a warning system.
The district concedes that it has responsibility for maintaining the dam. It denies that the responsibility includes a requirement of warning persons using the river. The district’s argument, accepted by the majority, is that it never made a discretionary decision to install a warning system and that maintenance of the warning device installed by others is not the responsibility of the district. The majority correctly points out that under the current state of the law, tort immunity depends upon a distinction between discretionary and ministerial acts. Insofar as any rational rule or rational application of a rule can be discerned from the plethora of cases on the subject, I conclude that when the district assumed responsibility for maintaining the dam it assumed a like responsibility for warning users of the body of water created by the dam of the inherent danger created by the precipitous spillway.
In Smith v. Cooper, 256 Or 485 , 475 P2d 78 , 45 ALR3d 857 (1970), the Supreme Court, after an extensive discussion of the discretionary-ministerial distinction, stated that public employees are generally immune from liability for alleged negligence in planning and designing public structures. The court then explained:
"We have used the term 'generally immune’ in the realization that it is conceivable that a complainant could allege and prove a defect in design or planning that could adequately and appropriately be passed upon by a judge or jury, for example, ludicrous for the *835 sake of clarity, a road designed so that it ended at the edge of a cliff. * * * ” 256 Or at 511 .
Presumably the court’s example would allow a court or jury to determine the design was negligent in not including, at the minimum, a warning to motorists that the road ended at a precipice. The dam in question in this case created a body of water that flowed over a precipitious spillway. The district was aware that the body of water behind the dam was regularly used by boaters, waterskiers and fishermen and that at least two prior accidents had occurred when boaters went over the spillway. I see little distinction between a dam designed with a spillway and no warning device and the example of the highway set forth in Smith v. Cooper, supra. I conclude that a judge or jury can appropriately and adequately pass upon the judgment of the district in designing the dam without a suitable warning device. Plaintiffs should be allowed to prove the allegations of the complaint. Accordingly, I dissent.