354 P.3d 698
Or. Ct. App.2015Background
- Decedent (17-year-old foreign exchange student) was shot and killed while waiting in a cordoned line outside The Zone, an underage nightclub in Portland’s Old Town/Chinatown entertainment district. Shooter had diagnosed schizophrenia and reportedly targeted “preppies.”
- Complaint alleges The Zone and Rotary defendants knew of prior violence near the club (including a 2002 shooting, history of fights/assaults, gang/drug activity) and took some security measures but left guests exposed in line. Rotary defendants allegedly left students unsupervised in that area.
- Plaintiff sued for negligence (premises liability and custodial/special-relationship theories), alleging failure to protect, inadequate security, failure to warn/train, and leaving students in a high-crime area.
- Defendants moved to dismiss under ORCP 21 A(8) arguing the particular shooting was a "random" act by a mentally ill individual and therefore unforeseeable as a matter of law.
- Trial court granted dismissal on foreseeability grounds; appellate court reversed and remanded, holding plaintiff pleaded sufficient facts that a jury could find the shooting was within a foreseeable class of violent assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff pleaded sufficient facts that third-party criminal conduct (the shooting) was reasonably foreseeable | Delgado was at risk of violent assault while waiting in line; defendants knew of prior violence and conditions that made assault foreseeable | The shooting was a rare, random spree by a mentally ill person; specific act was not reasonably foreseeable as a matter of law | Reversed — complaint alleged concrete facts (prior shootings, assaults, neighborhood violence, club practices) that could allow a jury to find foreseeable risk of violent assault |
| Whether foreseeability requires predicting the exact mechanism or motive of the criminal act | Foreseeability focuses on the general class of harm (violent assault) not on exact mechanism or motive | Defendants: plaintiff must plead the specific type of criminal activity that injured the decedent | Court: plaintiff need not foresee precise details; must plead concrete facts showing defendant was on notice of the general class of criminal harm |
| Application of special-relationship duties (premises invitee; custodial/sponsor relationship) | Special relationships create duties to protect against reasonably foreseeable third-party criminal acts | Defendants: even with special relationship, the particular shooting remained unforeseeable | Court: Special-relationship duties are limited by foreseeability; here allegations suffice to show those duties could have encompassed risk of violent assault |
| Whether dismissal under ORCP 21 A(8) was appropriate on foreseeability alone | Allegations (prior incidents, police meetings, club location, known assaults) are sufficient to survive a motion to dismiss | Defendants: foreseeability lacking as a matter of law; trial court was correct to dismiss | Court: At pleading stage, must accept allegations and draw inferences for plaintiff; unforeseeability as a matter of law is appropriate only in extreme cases — here factual issues remain for jury |
Key Cases Cited
- Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1 (Or. 1987) (foreseeability looks to generalized risks of the type of incident, not precise sequence)
- Jefferson Plywood Co. v. 255 Or. 603 (Or. 1969) (characterization of the class of harm controls foreseeability analysis)
- Buchler v. Oregon Corrections Div., 316 Or. 499 (Or. 1993) (general statement that crimes may occur insufficient to impose liability; concrete facts required)
- McPherson v. Oregon Dept. of Corrections, 210 Or. App. 602 (Or. Ct. App. 2007) (foreseeability of third-party criminal acts is ad hoc; unforeseeability as a matter of law is rare)
- Stewart v. Kids, Inc. of Dallas, OR, 245 Or. App. 267 (Or. Ct. App. 2011) (special-relationship duties to supervise minors include protection against foreseeable third-party crimes but not unforeseeable risks)
- Uihlein v. Albertson’s, Inc., 282 Or. 631 (Or. 1978) (defendant must be on notice of likelihood of harm of some kind from criminal agency)
- Torres v. United States Nat. Bank, 65 Or. App. 207 (Or. Ct. App. 1984) (harm must be within general class a reasonable person would anticipate)
- Brown v. J.C. Penney Co., 297 Or. 695 (Or. 1984) (awareness of need for security focuses inquiry on what a reasonably prudent proprietor would do)
- Moore v. Willis, 307 Or. 254 (Or. 1988) (foreseeability for third-party criminal acts is question for factfinder absent extreme circumstances)
- Kimbler v. Stillwell, 303 Or. 23 (Or. 1987) (retreated from strict facilitation theory; foreseeability of third-party misuse of retailer’s goods may survive dismissal)