Stewart v. KIDS INC. OF DALLAS, Or
261 P.3d 1272
Or. Ct. App.2011Background
- Jane Doe, a minor, was sexually assaulted during a Kids Inc. car wash fundraiser at a Dairy Queen in Dallas, Oregon.
- Plaintiff alleged defendants had a special relationship with Jane Doe (business invitee and supervisor of children) creating a duty to guard against third‑party crime.
- Second amended complaint asserted foreseeability based on event publicity, presence of teenagers, and potential internet contact with predators.
- Defendants Dairy Queen and Kids Inc. moved to dismiss under ORCP 21 A(8), arguing lack of foreseeability and failure to plead required facts.
- Trial court granted the motions, ruling the harm was unforeseeable as a matter of law and dismissed with prejudice; plaintiff did not replead.
- On appeal, the Oregon Court of Appeals upheld, concluding the complaint failed to allege facts showing reasonably foreseeable harm to either defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the special relationships create a duty to protect against third‑party crime. | Plaintiff argues Dairy Queen and Kids Inc. owed a duty to anticipate criminal misconduct and prevent harm. | Defendants contend foreseeability must be pleaded; mere general risk of crime is insufficient. | Foreseeability limited the duty; rejected as to both defendants. |
| Whether the complaint pleads sufficient foreseeability facts to state a claim. | Alleges a reasonable probability of predators targeting and online contact with minors at the car wash. | Plaintiff pleads only general risk; fails to show defendant knew or should have known of the specific risk. | Not enough; allegations do not show reasonably foreseeable risk. |
| Does the Restatement/precedent framework show a duty scope that includes preventing third‑party harm here? | Restatement 344 and related cases extend duty for premises and special relationships to foreseeability of third‑party harm. | Foreseeability must be demonstrated with particularized facts; mere possibility is insufficient. | Court adopts limited foreseeability; no duty found based on pleaded facts. |
Key Cases Cited
- Bailey v. Lewis Farm, Inc., 343 Or. 276 (Or. 2007) (pleading standard and favorable inference on ORCP 18 A)
- Uihlein v. Albertson's, Inc., 282 Or. 631 (Or. 1978) (premises liability; duty to protect invitees from third‑party crime)
- Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1 (Or. 1987) (special duty to students; foreseeability limits on third‑party risk)
- Solberg v. Johnson, 306 Or. 484 (Or. 1988) (foreseeability as a factor in negligence pleadings)
- Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329 (Or. 2004) (special relationship duties limited by foreseeability)
- McPherson v. Oregon Dept. of Corrections, 210 Or. App. 602 (Or. App. 2007) (analysis of special relationships and foreseeability scope)
- Torres v. United States Nat. Bank, 65 Or. App. 203 (Or. App. 1982) (knowledge/notice of risk; foreseeability under depository context)
- Kimbler v. Stillwell, 303 Or. 23 (Or. 1987) (facilitation theory rejected in later precedents)
- Buchler v. Oregon Corrections Div., 316 Or. 499 (Or. 1993) (limits on imposing liability for intervening criminality; general foreseeability not enough)
- Moore v. Willis, 307 Or. 254 (Or. 1989) (rigor of pleading foreseeability; must allege factual basis)