*1 4, Arguеd part; part; and submitted June affirmed in reversed 23, 13, rehearing and remanded October November denied CHRISTENSEN, Petitioner-Appellant,
EPLEY, al, et Respondents, MURPHY, al, et Petitioners-Respondents, (TC 25898/25909) CA SC
Before Chief and Howell, Peterson, Tongue, Linde and Justices. TONGUE, J. PETERSON, J., TONGUE, J.,
Separate opinions by HOLMAN, and J.
TONGUE, J.
This is an action for death. It was filed wrongful of a personal representative police estate officer who was one fatally Daryl Thomp- stabbed in the son in the course of to assist Thompson’s efforts of a female inmate detention escape juvenile center in Pendleton.
Named
defendants
Daryl Thomp-
addition to
son were Sherrie Murphy,
duty
the matron on
at the
center on the night of the escape
employee
and an
Umatilla County, who allegedly permitted Thompson
to enter it and
inmate;
visit the
Tim
James
and
Epley
Waller,
county
also
employees, who allegedly assigned
to work alone
Murphy
as the matron on the
night
and
escape,
Umatilla County.
The
was filed
decedent’s
complaint
on behalf of
widow,
children,
his
his
surviving
five minor
mother. The
for dam
complaint alleged
prayed
*3
$300,000
in the sum of
Mur
ages
against defendants
Waller, Epley and Umatilla
The trial
phy,
County.
court,
by
defendants,
on motion
the alle
these
struсk
that
gation
damages
ground
that amount on the
statutory
it exceeded the
limit under the
Tort
Oregon
$100,000,
Claims Act of
ORS
provided
30.270(1)(b). The trial court also sustained defendants’
to plaintiff’s
demurrer
complaint.1
The Court of
from
Appeals,
appeal by plaintiff
on
resulting judgment
her
with
dismissing
complaint
sustaining
held that
prejudice,
the trial court erred
demurrer,
trial court
defendants’
but also held that the
limited
relief
to
properly
plaintiff’s
for
prayer
(1978).
$100,000.
Both
parties review this court to reverse ants’ asks petition court that the trial by the Comb of holding Appeals to sustaining plaintiff’s defendants’ demurrer erred under that is entitled to a trial plaintiff complaint petition of her Plaintiff’s allegations complaint. holding by asks this court reverse the for review to limited that the trial court Appeals properly Comb of $100,000. for relief to prayer plaintiff’s question equally This court is divided on in its hold- the Court of was correct Appeals whether sustaining the trial court erred in defendants’ that ing De- Justice plaintiff’s demurrer Chief complaint. necke, are of Justice Holman and Justice Peterson Tongue, that the trial did Justice court not err. contrary Justice Howell Justice Linde are Justice Lent himself disqualified par- opinion. in this case. ticipation the comb this equally ques
Because divided upon tion a of the comb that it would majority is of the view court, court, useful purpose serve no for the as a however, follows, any opinion issue on this It question. must be Appeals that decision the Court of question, plain affirmed on this with the result tiff is entitled to a trial of her allegations under the complaint. however, unanimous, holding court in its
This erred in its Appeals holding Comb for relief trial court limited properly plaintiff’s prayer $100,000. stated, and the As both the trial court previously recov- held that Appeals plaintiff’s potential Court of its County and damages against Umatilla ery properly sustained Appeals held that the trial court The Court of also *4 complaint plaintiff’s Epley of defendants and Waller the demurrer against Oregon Act Tort Claims a cause of action under the to state failed within the alleged fell conduct the reason that their defendants for those 30.265(3)(c) discretionary acts. Neither exception provided ORS for wrong in Appeals so petition the Court of for review contends holding.
[542] employees, defendants Waller and Epley, Murphy, $100,000 was limited to by reason of of the provisions 30.270(l)(b). Act, Tort Oregon Claims ORS 30.270(1) ORS provides:
"(1) Liability any officers, public body or its employes agents or acting scope within the of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
"(a) $50,000 any any claimant for number damage claims for to or property, destruction of including consequential damages, arising out of a single accident or occurrence. "(b) $100,000 any claimant for all other arising
claims out single of a accident occurrence.
"(c) $300,000 any number of claims aris- ing out single of a accident or occurrence.” Defendants contend that the trial court and Court were Appeals correct in so holding for the following reasons: history
"The and language Oregon Wrong Act, ful Death ORS seq., 30.010 et and the cases decided thereunder show that a cause of action for wrongful death constitutes but one pur claim to be claimant, sued one personal representative, regardless of how many persons aggrieved are by the wrongful death. The number of dependents and fam ily relationships broaden the wrongful death meas damages ure of generally. But in wrongful death actions commenced Act, under the Tort Claims number of simply beneficiaries defines the measure apportionment of damages within the confines of $100,000 limit governing the claim under ORS 30.270(1)(b). Therefore, aggregate exposure of $100,000, Defendants in this matter and the trial court was ruling.” correct in so A. The Oregon Wrongful Death Act. original
The Oregon Wrongful Death Act was enacted in 1862. See Deady, General Oregon Laws of 1845-1864, 241, § p. 367. The recovery under that first *5 the
statute was for benefit of the decedent’s estate and measure of damages, as held this court by v. Oregon Carlson Short Line 457- Ry. (1892), P28 was: "* * * estate, pecuniary by loss suffered any grief anguish of without solatium for the and surviving pain suffering the de- relatives or and ceased; and that is loss what the deceased would have by bodily probably eаrned his intellectual or labor profession during his business or of his the residue life, which, representing savings, as his net * * gone would have for the benefit of his estate 458-459) (at Carlson, however, this court statute expressly distinguished Oregon between the and statutes as elsewhere "modeled adopted upon” Act, Lord which "the original Campbell’s right under is given of action not to the personal representative estate, the benefit of the but for the of certain benefit therein, named and the persons personal representa- party, tive is a mere nominal who sues for their bene- fit,” saying:
«* * * un{jer Qur statute, object Not so where the estate, by to recover the loss sustained and not to pecuniary any recover the by particu- loss sustained lar individual or individuals.
"By [Deady [Hill’s force of Code Code] section 371 367], § personal representative, prosecution in the and the the proceeds, action distribution represents collectively all interested in the who are heirs, life, creditors, continuance of the whether as * * *” distributees. and that:
"* * * difference in of cases is the two classes damage between the done to the estate damage designated persons. done to the That measured, be, nearly as can the value estate lost, by the of the life and that to the beneficiaries * * *” value of the life lost to them. that under the might agree We well with defendant was but Death Act there original Oregon Wrongful claimant,” so as to to be one pursued "one claim limit reсovery under the Oregon Tort Claims Act to $100,000 by reason provisions ORS 30.270(l)(b). however, We do not agree, with defend- ants’ contention that the "basic character of the action remained unchanged” despite amend- subsequent ments to the Oregon Act, Wrongful Death or with defendants’ contention that the effect of those amend- only ments was to "expand” the "measure and alloca- tion of recoverable wrongful death damages.”
On the contrary, we believe that the effect of amendments to the Oregon Act, Wrongful Death *6 par- ticularly those adopted 1973, in has been so change its basic provisions as to make the Act Oregon more similar to wrongful death acts of the type described in Carlson under which the right of action in a case such as this is not primarily estate, for the benefit of the but for the benefit of the spouse and children of the deced- ent as the "real parties interest,” with personal the representative as "a mere nominal who party,” sues for their benefit for the recovery of "the value of the life lost to them.”
Under
the present Oregon
Act,
Wrongful Death
after amendments
1967,3
1939 and
and more par-
ticularly
1973,4
recovery is now expressly provided
for the benefit of the spouse, children and parents of
decedent,
not only for their
loss,
pecuniary
but
also for their loss of decedent’s society, companionship
services,
as well as for recovery to the estate of
medical and funeral expenses, among
things.5
other
3
history
Oregon
For a
Wrongful
prior
review of the
of the
Death Act
1973, including
amendments in 1939 and
see Goheen v. General
(1972).
Corp.,
Motors
omission of of the for children, surviving spouse, surviving the benefit of the decedent’s surviving parents individuals, any, and other if who under the law of Thus, amendments, as a result of these the present effect, provides, brought statute for an action to be in the name the personal of the representative estate to enforce individual claims of the spouse and of each child for the pecuniary loss to each of them as a result of the death of the decedent and for loss to each of them of the society, companion- decedent’s ship services. with stated in 2
This is consistent the view as 2d, 238-40, § Death Speiser, Recovery Wrongful (1975) that: 11:34 personal
"A representative proceeding under wrongful death requiring bring statutes him action for the benefit of designated certain benefi- ciaries is a mere party having nominal interest in no the case for himself represents. or the estate he He does not act in his general capacity as executor or administrator or representative decedent’s Instead, estate. he sues as trustee on behalf of particular act, persons designated in though evеn brought the action is in his name as executor words, administrator. In persons designated other in the statute are the parties real in interest.” intestate succession of the state of the decedent’s domicile would be *7 decedent, may personal property maintain entitled to inherit the of the * * wrongdoer against *. action "(2) damages may awarded in an In an action under this section be amount which: n "(a) charges necessarily for doc- Includes reasonable incurred services, services, services, hospital nursing other medical tors’ services, for the burial services and memorial services rendered decedent; "(b) justly, fairly reasonably compensated the have Would and during disability, pain, suffering income
decedent for and loss of injury period to the decedent and the decedent’s between death; "(c) pecuniary Justly, fairly reasonably compensates for and estate; loss to the decedent’s "(d) Justly, fairly reasonably compensates the decedent’s and spouse, parents pecuniary loss and for loss of children and for * * society, companionship and services of the decedent
[546] follows, must opinion, reject It our that we defendants’ contention that under the of the provisions Act, Death there is in a case such as Oregon Wrongful this, children, in which decedent left a and five widow "but one claim to be pursued by one claimant.”6 B. Oregon The Tort Claims Act. stated,
As decided is previously question to be whether an action for death a decedent wrongful of leaving a widow and five children is to the subject 30.270(1)(b) $100,000 limitation ORS imposed the Oregon Tort Claims Act upon liability public officers, bodies or their any or "to employees agents claimant for all other out of a arising single claims occurrence,” accident or or whether such an action is $300,000 subject to the imposed by limitation ORS 30.270(1)(c) upon liability "for claims any number of arising out of a single accident or occurrence.”
The "claims,” terms "claimant” and as used ORS 30.270, may be said to be ambiguous legal sense applied actions for death. In an wrongful attempt to discover the intent of the in the use of legislature context, these terms in this we have examined the legislative history of ORS dis- 30.270 but have not covered anything any substantial assistance. We must therefore seek a problem by solution to this analysis Act, of the terms of the Tort Claims Oregon support of that contention defendants also refer to ORS 30.070 of Act, Oregon Wrongful provides Death which that: decedent, personal representative approval "The with the appointment, power compromise
the court of shall have full and any 30.030, settle claim of the class whether described ORS judgment not, claim is reduced to and or to execute such releases satisfy discharge may necessary other instruments as * * *” claim. 30.030(1) provides and to ORS that: claim, action, "Upon recovery judgment settlement of a or in an damages death, wrongful personal representative for of a 30.020, dаmages accepted decedent under ORS the amount of so prescribed recovered shall be in this section.” distributed in the manner proposi- provisions We do not believe these to be inconsistent with the separate tion that the widow and each child a decedent have "claims.” *8 30.270, read with including together ORS when Act. of the Death Oregon Wrongful terms . stated, in for death wrongful As actions previously children, are the they a widow and minor involving claims under real in interest insofar as their parties 30.020(2)(d) for loss” and loss of serv "pecuniary ORS follows, judgment, It in our ices are concerned. estate, of the personal representative such a case the Oregon Tort such claims under prosecuting death under the wrongful Act in an action for Claims Act, only as a Wrongful Death acts present Oregon within single and is not a "claimant” party nominal 30.270(1)(b), subject as to be of ORS so meaning $100,000 that subsection. imposed by the limitation of follows, it such Similarly, judgment, our than and more than one case there is more one "claim” 30.270(1)(c), so meaning "claimant” within the of ORS $300,000 as pro as to be to the limitation of subject by that subsection.7 vided reasons, the decision the Court For these sustaining reversing the trial court for Appeals must be plaintiff’s complaint demurrer defendants’ divided on that equally affirmed because this court is trial and the Appeals but both the Court question, the claims holding court must be reversed for consistent, judgment, provisions This result is also in our with the 30.275(2) Claims, Oregon relating ORS of the Tort to notices of claims following provision: Act under the and which includes the death, may presented "When the claim for notice * *
personal representative, surviving spouse (Empha- kin or next of added) sis 30.275(1), provisions a result of ORS Such is also consistent with the (Or 3), provide § amended in 1977 L 1977 ch that notices of Oregon under the Act shall state "the name of the claims Tort Claims added) representative attorney, any.” (Emphasis if claimant and his Thus, Wrongful though Oregon Death Act must even actions under the personal representative of the estate of the be filed in the name of the children, appears it to be decedent for the benefit of his widow and recognized by provisions Oregon that when a these Tort Claims Act death,” "spouse” kin” under that Act "for and "next of claim giving purpose claims. are "claimants”for the notice of such decedent death, including wrongful action for in this presented and five widow decedent’s the benefit of claims *9 im- $100,000 limitation to the children, subject are 30.270(l)(b). by ORS posed remanded. and part, reversed part,
Affirmed J., TONGUE, concurring. the ques- upon divided court is equally
Because this be affirmed should of Appeals the Court tion whether erred court the trial holding in its or reversed com- to plaintiff’s demurrer sustaining defendants’ that no the view is of majority of the court plaint, court, as a for this served would be purpose useful this court, question. on any opinion to issue this ques- and importance Because of the nature I Holman and and tion, however, Peterson my brothers our respec- publication are of the may well this question views on opposing tive and of the trial useful for benefit purpose serve some Court my opinion, Oregon. and bar of bench following holding correct in that was Appeals reasons: allegations plaintiff’s complaint.
A. The that defendant Mur- alleged Plaintiff’s complaint and, as at the detention center phy was matron such, security was for the maintenance "responsible and that the decedent safety and within the center” then complaint a Pendleton officer. The police was as follows: alleged
VII 5, 1976, February defendant "In late hours juvenile working as the sole Murphy, Sherrie while defendant and present, permitted assisted officer entering the facilities Daryl Thompson Within Regional Youth Center. Oregon Northeast entrance, Daryl defendant his short time after inmate, Jeanne juvenile assisted a female Thompson the detention Noble, fled from escape and both center.”
VIII "Defendant Daryl Thompson, immediately after escaping Oregon Regional the Northeast Youth Center and while attempting still to flee from the Noble, scene with escaped intentionally inmate feloniously attacked John Paul Christensen with a knife, hunting stabbing him in the leg chest and causing injuries which resulted in his death on Feb- ruary 1976.”
IX "The death of John Paul Christensen proxi- mately caused negligence Murphy of Sherrie in one or more of the following particulars: (1) allowing "In Daryl Thompson to defendant entercas Oregon Northeast Regional Youth Center visiting
аfter disregard hours in of the rules of the Oregon Northeast Regional Youth Center. *10 (2) "In failing to alert police officers an unauthorized was in the Oregon Northeast Regional Youth Center.
(3) "In failing properly supervise the ac- tivities and conduct of defendant Daryl Thompson and the juvenile female while in the Northeast Oregon Regional Youth Center.
(4) allowing "In Daryl defendant Thompson and juvenile the female to escape from the North- Oregon east Regional Youth Center.
(5) failing "In police to alert officers whereabouts Daryl Thompson defendant al- though she was aware Daryl defendant Thompson away had run from home in violation of a prior juvenile court order.” complaint realleged In a second count the these alleged same facts and also that:
II "At the time Murphy permitted defendant and center, assisted Thompson entering defendant she was aware Thompson of the fact that defendant just away had run from home in prior violation of a County Umatilla Juvenile Court order.”
m permitted Murphy time defendant Sherrie "At the entering Daryl Thompson and assisted defendant Youth Oregon Regional of the Northeast the facilities aware, in the exer- Center, Murphy was defendant aware, been should have of reasonable care cise Noble juvenile inmate Thompson and the defendant previously had relationship and personal a close had ” county. together and stolen automobile fled added) (Emphasis B. contentions. Defеndants’ of the support by for review defendants petition Murphy that: County, Umatilla it is contended (1) facts from did not state complaint "Plaintiffs plaintiff in that duty’ implied 'legal which a could be relationship between any allege special failed to juvenile who party third and either Defendants decedent. or the Plaintiff’s inflicted the fatal wounds (2) intentionally inflicted "The fatal wounds juvenile party the third upon Plaintiff’s decedent they in that Defendants foreseeable were not highly unusu- through the 'concatenation occurred al circumstances.’
(3)
third
criminal
act
"The intentional
superseding cause
juvenile
party
constituted
legal causation
any possible
broke the chain of
liability.”
any potential
relieved
Defendants
this court on
Because
this case comes before
non-suit, directed
demurrer,
than
motion for
rather
on
verdict,
n.o.v.,
it
at
important
or judgment
*11
these con-
considering
outset
to bear
mind
erred
the trial court
deciding
tentions and in
whether
only
must not
demurrer we
sustaining
defendants’
also the
allegations, but
assume the truth of these
conceiv-
"reasonably
it is
any
truth of
evidence which
under these
have offered
able” that
could
plaintiff
Repossessions,
Mezyk v. National
allegations.
(1965).
333, 338-39,
First of and such relationship” alleged proved by plain- must be and (an I disagree, tiff in this case with which assumption stated), for reasons to be I that such a "special believe I in this case. do sufficiently alleged relationship” (Second) § as not read Restatement of Torts J., Peterson, a "custodial relation- quoted by require killed and the who ship” jailer person between satisfy decedent of a nature as to plaintiff’s such section, Justice quoted by § 319. That Restatement Peterson, kind of only not to state the purport does Instead, § § "special relationship” intended 315. the require- of a and speaks "special relationship” either some ments of that section can be satisfied the defendant and the "special relationship” between injured the defendant and the third or between person. not Justice Peterson would
Surely defendants and gangster, if the famous Dillinger, contend that John friend” was "girl where his night jail came at to a held, to exercise duty a would have no being jailer then try help care to see that he did not reasonable no "custodial because there was escape jail her to Dillinger. relationship” jailer between to enter a view, a allows a visitor my jailer once meaning within the relationship” arises jail, "special of such a the visitor jailer §of 315 between the duty to control jailer nature as to impose upon *12 as, the to example, prevent the conduct so for visitor’s in inmate the smuggling to an weapons visitor or, case, escape as this to an inmate to jail assist jail. from the believe, addition, I held the Court
In as custody the of a undertaking that a Appeals, jailer, by escape his and duty a to prisoner, prevent undertakes within that, result, a a arises relationship” as "special and a police § the the meaning jailer 315 between such an to may upon prevent officer who be called escaping prisoner. or the escape apprehend (b) in this required No was "special relationship” case. however, no my judgment, relationship” "special required this case. The defendants the duty Justice Peterson view "special relationship”
defendant as out a arising Noble, between the state and Jeanne an inmate. Such an we analysis might necessary seeking be were for the of its impose liability upon state failure In this agents to retain Jeanne Noble. control over however, case, plain- at least some of essence of that allegations tiff’s is not so much negligence do necessary protection matron acts for failed engaged officer the matron as it that police conduct an unreasonable which created affirmative risk to others in she and assisted” "permitted night enter at after Thompson to the detention center knowledge hours with constructive visiting actual or relation- personal that he and the inmate had a close away run from home ship, Thompson just had order, Thompson juvenile violation court an automobile and the inmate "had stolen previously and fled the together county.” (1965): 2d, § 284 stated in of Torts As Restatement either: "Negligent "(a) may conduct be as reasonable man act an actor risk of recognize involving an unreasonable should another, or causing an of an interest of invasion "(b) a necessary to do an act which is failure protection or assistance of another and which the added) actor is a duty (Emphasis under to do.” Restatement, As also § stated in supra, 302B: "An or may act an negligent omission if the actor realizes or should realize that it involves unreasonable risk through of harm to another conduct of the other a third person which is intend- *13 harm, toed cause though even such conduct is crimi- added) (Emphasis nal.” (e) § Comment under 302B states that: are, however, "There situations in which the ac- tor, man, as a required anticipate reasonable to and guard intentional, criminal, against the or even mis- general, conduct of others. In these situations arise where the actor special responsibility is under a to- harm, ward the one who suffers the which includes duty protect against to him such intentional con- duct; OR where the actor’s own aсt has affirmative exposed high created or recognizable the other to a misconduct, degree through risk of harm such * * which a reasonable man would take into account. *” added) (Emphasis Restatement, effect, 449, § To same see supra, (a). comment
Indeed, opinion by quotes Justice Peterson with (e) approval § comment under 302B which clearly distinguishes between the duty "special one under a (or responsibility” one "relationship”) toward who suf- fers harm to protect such a and the person duty one whose "own act” exposed per- affirmative has another a "high harm,” son to degree of risk of as in this case and as subsequently discussed.1 James, also
As stated in Law of and The Harper (1956): Torts, 1044, § 18.6 1Also, duty relationship” arising "special in from described by Peterson, imposes § quoted Restatement also a Justice is one (i.e., duty prevent” causing person duty "to a third from harm another a to prevent person might to take action to who suffer affirmative to harm a taken), situations, harm if no such affirmative as action is distinct case, engaged previously in this in which a defendant has in affirmative exposed conduct which to a of harm. has another risk
"By then, large, duty and men to use care in owe conduct, they connection with their affirmative injured it to all if may foreseeably owe who negligently conduct out.” carried Previous decisions this court are consistent with analysis. Nichols, this In Reynolds v. (1976),
P2d 102 one of the two cases relied principal defendants, upon by а social plaintiff guest the house of the neighbor. defendants’ Defendants served to liquor one of their who then assaulted guests, and stabbed the plaintiff. The basis for the decision this court that case allegations was that complaint relating to defendants’ to act were failure insufficient to Indeed, impose duty plaintiff. the court expressly noted that complaint case did not allege that defendants had engaged acts which should they have foreseen affirmative might involve an unreasonable risk of harm to Thus, another. said, this court at 600-601: allegations give "The defendants failed warning plaintiff of Simmons’ intent to assault restrain Simmons do not state a cause of action. As *14 223, 227, Mengerhausen, we said in Cramer v. 275 Or 740, (1976), duty 550 P2d 743 no to aid one '[t]here is peril special in in the absence relation be some of parties justification tween the which a for the affords duty.’ present In the com creation the case allege any special relationship does not be plaint give defendants which rise plaintiff tween and would duty plaintiff. a to to complaint alleged the had "// defendants intoxicating liquors
served
Simmons with reason to
liquor
know that
the
and
combination
Simmons’
of
propensities
prompt
violent
him to assault
would
acts],
plaintiff
e.,
arguable
[i.
it is
that a
affirmative
But
might
cause of action
have been stated.
* *
complaint
allegation
does not make such an
added)2
(Emphasis
2
by
619,
An annotation cited
defendants
ALR
10
3d
"Private
Duty
Liability
Persons
Against
and
for Failure to Protect Anothеr
Crimi
(1966)
nal
distinguishable
Attack
Third Person”
is
for the same reasons.
effect,
To the same
Eugene,
in Brennan
City
v.
of
(1979),
285 Or
distinction between conduct” "failure "affirmative ” ” act, "foreseeability. the test is one most the decisions of years In recent probably "dhty” in have analyzed problem this court not *15 cases in of either relation- negligence "special terms in terms vs "failure of "affirmative conduct” ships” act,” "foreseeability.” but terms of
[556] Co., 255 Or Plywood Thus, Stewart v. Jefferson (1970), Justice O’Connell 603, 608-9, 783 469 P2d James, The Harper & with quoted approval that: Torts, the statement supra, Law of * * actually liability is confined to harms resulting general that are of the kind to be anti- cipated and, reason, from the conduct for the same liability is confined to the person situations which ’ harmed is general one of the class threatened.” (at 609) Justice O’Connell then went on to state that:
"This
idea
limiting liability to that which can
be anticipated is formulated into the foreseeability
test
negligence, which states that one is negligent
only
he,
if
as an ordinary
person, ought
reasonable
reasonably to foresee that he
expose
will
another to
* * *”
an unreasonable risk of
(Emphasis
harm.
added)
This analysis has been subsequently
approved by
this court
in more
See,
recent cases.
e.g., Gunn v.
Hi-C-Home,
Inc.,
404, 407-8,
260 Or
This us brings to the second defend- contention ants —that stabbing decedent plaintiff’s by- Thompson foreseeable, was not it occurred through "concatenation highly unusual circum- stances,” and the contention Justice Peterson be, there must high prospectively, "recognizable de- of risk gree of harm” from the future misconduct of a third person. not the harm was contentions
Defendants’ foreseeable.
(a) The applied. test *16 Justice Peterson:
According opinion by to the high de- 'recognizable "There must be prospectively of the risk of harm’ from the future misconduct gree person, liability support third before ensues.” (Second) he of Torts quotes test from Restatement however, 302B, recognizes, § comment e. His opinion § the actor in from comment a under 449 quoting where, other among in such a case negligent becomes the or increased risk things, "his conduct has created person. of a third through of harm the misconduct” are not the law Restatement "rules” and "comments” however, have been they unless and until Oregon, this this court as the law of adopted by approved state. O’Connell, J., in court, in an opinion
This to stated the test Plywood, supra, Stewart v. Jefferson 609-610) (at in somewhat in such cases applied noted, this court stated different terms. As previously negli test "foreseeability in that case that reason ordinary is whether "an gence” such cases that he will reasonably to foresee person ought able harm” and unreasonable risk expose another ”ojf general to harms this test is applicable and to "situa kind to be the conduct” anticipated from the general is one of tions in which the harmed effect, Allen v. see class threatened.” To same recently, Shiroma/Leathers, at 571-72. More supra, Bressler, 265, 268, 583 P2d v. 283 Or Connolly (1978), that: again we said usually determined question "Resolution i.e., 'foreseeable,’ whether
by whether the harm was kind to be general harm caused was the actual blameworthy act. Stewart anticipated from the 603, 606-10, 469 P2d Plywood Jefferson (1970). though was, even liability results If it anti- not be injury could manner of particular cipated.
* * * sfc does not the occurrence bizarre manner of "The general falling into prevent the accident * * *” category reasonably of risk anticipated. to be added) (Emphasis (b) The role jury court and in the application this test. As recognized in Plywood, the more dif- Jefferson ficult problem arises in the of that test application the facts of a particular and, case particular, determining the role of the proper court that of the jury in such cases.
I agree that in such cases it is duty of the court decide, as a law, matter of whether sufficient facts *17 have been alleged or proved by the plaintiff to entitle him to have his case submitted to the jury. My disag- reement with the opinion by Peterson, J., is, perhaps, primarily a matter of emphasis and application rather than of terminology. His opinion would in emphasize the statement Jef- (and Plywood, at 609 in Allen v. repeated
ferson Shiroma/Leathers, supra,) that: "* * * fault, understood, usually as the term is is not associated with conduct which harm causes through highly the concatenation of unusual circum- If, stances. in our appraisal community’s con- fault, ception of we find question that the conduct in сlearly falls conception, charged outside the we are duty with the withdrawing of the issue from the jury.” (at 611): This court also said in Plywood Jefferson "If say we could that defendant’s conduct would blameworthy not be deemed according to the commu- nity’s fault, sense permit jury we would not impose liability.” discussing of the role of the court question jury cases, however, such said in this court (at 609-10) Plywood that:
Jefferson is, then, specific "The question before us whether plaintiff’s injury and the manner of its occurrence highly so say was unusual that we as a matter of can man, inventory law that a making reasonable might possibilities harm which his conduct reasonably produce, expected would not have injury way, is question to occur. Stated another range with- whether the circumstances are out of jury injury in which that the could determine reasonably foreseeable.”
And, at 607-608: p. leeway deciding jury given
"The a wide question below whether the conduct in above or falls to have the standard reasonable conduct deemed community. only been set The court intervenes say clearly when it can that the conduct meets actor’s it. clearly the standard below or falls "Implicit process assumption in this is the something judges juries about well as know acceptable kind of or not conduct deemed that, at at the acceptable community in the least higher and lower ends of the continuum that stand- ard, say does can the conduct does or court added) meet (Emphasis not the standard.” O’Connell, J., concurring specially As also stated Dewey A.F. Klaveness & Prosser, (1963), P2d 560 with quoting approval (2d 1955) p. Torts ed 282: might
"In
be reasonable
any case where there
foreseeability
particu-
difference
as to
of a
risk,
defendant’s con-
lar
the reasonableness of the
it,
of an
with
character
respect
duct
the normal
*18
cause,
jury, sub-
intervening
question
the
is for the
from the court
ject of
to suitable instructions
course
as the issue
legal
to the
conclusion to be drawn
* * *”
way.
determined either
rule
with
established
This
consistent
the well
court,
sufficiency
the
considering
that
Oregon
a
law,
question
at
submit
the
an action
must
evidence
"rea-
affirmatively
say
unless
it can
jury
on the matter.3
minds could not differ”
sonable
3See,
(1963);
e.g.,
476, 482,
McGillvrey,
Hills v.
240
[560] (c) this case. Application test to facts of (1) harm to be "general "Risk kind” of harm” — anticipated. of law to the
Upon of these rules application case, I alleged by facts as in this believe complaint jury that a could find that when mat- reasonably responsible security juvenile ron for the deten- tion center to en- "permitted Thompson assisted” ter young detention center at to visit a night being woman held there that he had a knowledge with "close the two personal with her and that relationship” of them had previously together stolen an automobile county,” jailer and "fled the a matron or competent "ought reasonably would] to foresee that expose [she harm,” [not another only] to аn unreasonable risk of the words of Plywood, "recognizable but to Jefferson harm,” high degree risk of in the words of the opinon by Justice Peterson.
More specifically, jury reasonably could find that under these facts it was only likely Thompson not would attempt help girl escape his friend detention center and again steal a car and attempt "flee county,” but that it likely any police officer who to block their or to attempted escape ap- them prehend would encounter resistance of such a nature as to him expose to either an "unreasonable risk harm” or a of risk of "recognizable high degree harm.” Massie, Slate, 715, 720, 561 (1977); 277 Or P2d 634 James v. Carnation 65, 69, (1977), Inman, 279, 287,
278 Or
For these same I that a reasons also believe that the reasonably could find from these facts alleged stabbing police escaping such officer either or his or her confederate was a "harm prisoner so, kind general being to be This anticipated.” was question "foreseeability” properly in this case court jury submitted to the even if members of this believe that in which might plaintiff’s "manner” "bizarre,” v. Connolly decedent was killed was as in Bressler, supra.
(2) "key question.” The Peterson, According opinion by to the Justice "* * * at bar is key question in the case the murder decedent plaintiff’s whether 609) Stewart, at 'so (quoting supra, law say unusual that we as a matter of highly can man, inventory of the making a reasonable might pro- possibilities of harm which his conduct duce, injury reasonably expected would not have occur.’ say imagination to
"It takes a real stretch of the was 'reason- that the murder of Officer Christensen 'permitted ably expected’ by Murphy to be when she entering the Thompson assisted defendant ” center.’ Also, according to that opinion, the element obligation involves "This court (see comment foreseeability Justice O’Connell’s 609) Plywood Stewart at supra, Jefferson boundary involves our determination of the of com- munity standards responsible that a for an *20 injury because it could have anticipated been because there was a hap- reasonable that it could likelihood added) pen.” (Emphasis disagree. We As Justice O’Connell stated Stewart: "If in our appraisal community conception of the fault, we find clearly that the in question conduct falls outside the conception, charged are with the we (Em-
duty of withdrawing jury.” issue from added) phasis As also held by cases, this many court in the ques- tion is whether we can that affirmatively say "reason- able minds could Thus, not differ on this question.”4 question before this court is not how a majority the members of this court would decide the issue of if "foreseeability” facts, they were the triers of the but whether considering the "wide which must be leeway” juries cases, accorded to in such this court can affirma- that tively say "all reasonable minds could not differ” on this and question "could inference.” draw but one
Jurors, world, as men and women of the are expect- ed evaluate only light evidence not in the of their general experience, but in the light generally of facts Moore, known in the See 228 community. Powell Or 255, 262-63, 364 (1961), P2d 1094 on and McCormick (1972). 2d, 762, § Evidence It is common knowl- today edge carry that many juvenile delinquents knives and that that problem has become so serious that ordinances and laws are enacted to prohibit carrying of such knives. view, my we reasonable say jury cannot that a
men could not matron properly jail find that when this "permitted juvenile delinquent assisted” this enter "punk” night this detention at and to facility friend, girl visit his held there as being who was then 3, supra. cases cited note See inmate, and did so with the two knowledge them had previously stolen a car and "fled the county,” matron, jail this in "making an inventory possibilities of harm” result, that might could reason- ably have expected any without "real stretch of the imagination,” that Thompson was a delin- juvenile quent "punk” who would only likely not to act as a confederate girl his friend assisting her to es- cape from the detention center but that he would physically resist attempts by police officer to block escape; juvenile delinquent "punks” often knives, carry that, result, as a it was "reasonably foreseeable” that a police officer who attempted block the escape might be stabbed this juvenile "punk.”
Conversely, we cannot properly say that "all rea- sonable men could Indeed, not differ” on this question. hold, to so in the face of a belief contrary some *21 court, members of this would be their impugn to ra- tionality as "reasonable men.”
I also believe that such a a would finding by jury not be "out of range” jury for a of reasonable men that such a jury could find that the properly conduct of this jailer or police matron in and assist- "permitting ing” to enter Thompson at jail night and tо visit his girl friend with the knowledge that the two of them had previously stolen a car and to "flee the attempted county” was "blameworthy to the communi- according fault,” sense of ty so as to properly "permit jury impose liability” under these facts.
(3) Other Oregon cases —distinction cases aris- ing on demurrer.
According Peterson, to the under by Justice Oregon law no cause of action is stated. For reasons previously stated, I disagree.
I recognize no case has been previously pre- sented to this court facts. As involving recog- similar nized by Peterson, however, Justice "the law is not an inanimate, capable "must unmoving thing,” but I society.” dynamic, changing the needs of a meeting decisions by our only this to be not illustrated believe "foreseeability,” involving in other cases problems a deci- facts, that such under different but although support- with and in this case would be consistent sion "foreseeability” analysis ed our problem cases. those it supra,
First, Plywood in Stewart v. Jefferson case, that it said, in this well have been as might imagination” a "real stretch of the would take at welding operation from a sparks foresee fire that would only mill would not cause a defendant’s who nearby plaintiff, warehouse but that spread only not radio, would at home to the listening was aby hoisted then be his assistance but would offer warehouse, he would where to the roof of the forklift would which corrugated skylight, plastic on step and be through him to fall give way, causing then Indeed, that plaintiff’s it could have been sаid injured. a "concatenation in that fall resulted from injury defendant circumstances,” urged unusual highly Instead, question held that in this case. this court "out of not "foreseeability” in that case was within which a could determine range” jury injury reasonably was foreseeable. a "concatenation involving
Another extreme case
Bressler, 283
Connolly
unusual circumstances”
al-
(1978), in
defendant
Defendants also complaint contend that plaintiff’s was insufficient because it failed to that allege matron knew that Thompson physi- a threat of "posed cal harm to anyone,” or that his "danger- she knew of however, ous propensities.” my view, plaintiff’s complaint sufficient because a could jury properly find from the alleged facts that the matron had actual or constructive knowledge that and the Thompson girl inmate had a "close personal relationship” the two of them "had an automobile previously stolen together and fled the county”; if she allowed inmate, to enter Thompson the center and visit of them two might escape, well to and that attempt persons to had attempting jail and who escape previously stolen a car "flee in an to attempt county” may well be as to be sufficiently desperate so "dangerous,” as to "pose injury” a threat of physical to who persons may their attempt prevent escape them capture after their escape.
It is also important note, considering past court, decisions this that a clear distinction has been made between cases in sufficiency which the go evidence to to the after a trial on a jury is raised motion for directed verdict or for a n.o.v. and judgment cases in which the of the sufficiency allegations complaint is raised by demurrer, this case. *23 Mezyk this supra, National Repossessions, recognized allowing plain- court importance tiff an opportunity present ruling his case before the defendant’s foreseeability. favor on the issue of Justice Denecke stated:
"A complaint which states that an act was done negligently is not ambiguous. may subject It be to a motion to make mоre definite and certain but when duty there is a complaint act with due care and alleges that an negligently, act was done the com- plaint, demurrer, when tested a states cause of action.
* * * ‡ "Whether or negligent not the defendant de- pends upon whether or not the defendant’s conduct in leaving keys in the car created a likelihood of harm plaintiff. to the question This in turn can be (1) subdivided: Should the defendant have foreseen might that someone very well steal his car because he (2) keys it; left the Should he have foreseen the thief would negligently? drive * * * *
"Under allegations plain- complaint, tiff is entitled to any offer admissible evidence rele- vant to these reasonably two issues. it We hold that conceivable that plaintiff evi- could introduce dence which would enable the trier of the facts to find that the defendant should have foreseen both of these added) contingencies.” (Emphasis 241 at 338-39. Or As also held in Brennan v. City Eugene, supra: demurrer,
"Because this case is
we
before us on
must assume the truth
plaintiff’s
pleaded
of all
well
allegations
any
might conceivably
facts that
proof
allegations.” Citing Mezyk,
adduced as
of such
See Meyer, also Fred Inc. v. Temco Metal Products 230, 236-37, (1973), P2d recognizing this same distinction.
(4) "Escape cases” other states. from Peterson, According to the opinion by Justice cases from other jurisdictions "recognizable require * * * risk of harm
high invariably including history (often conduct past described as a 'propensity others’) violenсe toward which alerts hav- ing physical to the harm custody risk of physical others the event of an This statement escape.”5 Rather, not accurate. view, in my these cases demon- strate a trend away dealing rules with what rigid actions are and are not foreseeable and a movement toward a review of each case to determine the actual *24 foreseeability Indeed, presented by the facts involved. in an annotation these cases in 44 ALR 3d discussing stated, it is 899 at 901: foreseeability ap-
"The
actions
escapee’s
of the
pears
primary
public
to be the
determinant
liability
authorities’
to a third
for the conse-
person
quences of those actions.”
if
true,
Even
it be
Peterson,
as
by
stated
Justice
that all previous cases have involved escaped prisoners
"history”
violence,”
with a
it
"propensity for
does
not follow that
liability must be limited to such cases.
The courts apparently
previously
pre-
have not
been
with
sented
a case involving
engineered by
an
escape
confederate.
”
Contention
Cause.
'Superseding
Defendants’
Defendants’
final
contention is that
the act of
as a third
Thompson
and,
party was a criminal act
as
such, constituted
a superseding
cause which "broke
the chain” of legal causation and relieved defendants
contention,
from
liability.6
defend-
support of that
ants rely upon
Torts,
440,
§§
supra,
Restatement
5
Virginia
Fidelity
Justice Peterson cites twelve
v.
cases: State West
(SD
Casualty
York,
1967);
Supp
Co. New
263 F
88 W Va
Azcona v.
Tibbs,
425,
App
(1961);
State,
Rptr
190 Cal
2d
12 Cal
232
v.
91 So 2d
Green
(La
524,
(1931);
1956);
Pierson,
Cappel
132
391
App
15 La
So
App
153
v.
(La
(La
State,
State,
App 1956); Geiger
Webbv.
91 So 2d 156
242 So 2d 606
(La
1970);
App
Casualty
Walker v. Interstate
2d 714
Fire and
334 So
(La
1976);
App
State,
1978);
Pitre,
App
Graham v.
354 So 2d 602
Frank v.
(La 1977);
Bowers,
(1939);
353 So 2d 1293
Moss v.
216 NC
§ 302B states if the may negligent "An act or an omission it involves actor realizes or should realize through the risk of harm to another unreasonable is intend- person of the other or a third which conduct harm, is crimi- though ed to cause even such conduct nal.” (1965) provides: § Restatement of Torts 2nd superseding "A third or other force cause is an act of a being prevents harm to its intervention liable for the actor from negligence factor which his antecedent is a substantial another bringing about.” provides:
§ 441 "(1) intervening actively operates produc- An force is one which ing negligent harm to another after act or omission has been the actor’s committed. "(2) intervening prevents operation force Whether the active of an legal bringing negligence being the actor’s antecedent cause §§ about harm to another is determined the rules stated 442-453.” provides: § 442 *25 following importance determining "The in considerations are of intervening superseding
whether force is a cause of harm to another: "(a) brings the fact that its intervention about harm different in kind from that which would otherwise have resulted from the negligence; actor’s "(b) operation consequences the fact its the thereof or appear extraordinary after the event to be rather than normal in existing operation; view of the its circumstances at the time of "(c) independ- intervening operating the fact that the force is or, ently any negligence, situation on the created the actor’s hand, situation; other is or is not a normal result of such "(d) intervening operation the fact that force is due act; person’s a third to act or to his failure to "(e) intervening an act of a the fact that force is due to person wrongful third the other and as such which is toward him; subjects person liability the third to "(f) degree wrongful culpability of a third of a act person intervening which sets the in motion.” force view, gives § the rule in 302B my as stated defend- in this than to greater support plaintiff case Thompson act of ants’ contention the criminal "superseding was a cause.”8 § noted, under previously As also comment b court,” as follows: relating to "function of states "* * * * * * If the third negligent character of foreseea- person’s intervening act or the reasonable 448) (see bility being §§ of its done 447 and is a factor act relieves dеtermining intervening whether the negligence, liability the actor from for his antecedent undisputed and under the there is room for facts such reasonable difference of as to whether foreseeable, question should negligent act was or ” added) jury. (Emphasis left stated, the opinion For reasons I am of previously alleged plaintiff’s complaint, that under the facts as assisting girl his Thompson, the likelihood that (itself a friend to from the detention center escape act), manner as to cause might criminal act such a the course of during harm to a encountered a jury such an was one of the hazards which escape find to make the conduct properly negligent could him to assisting the matron in allegedly or permitting actual or the detention center at with night, enter relation- knowledge personal constructive of his "close they the fact that had with inmate and of ship” fled the together stolen an automobile "previously county.” concepts superseding
Defendants’ reliance upon Begin reason. is also for another misplaced causation Co., 233 Or Dewey with v. A.F. Klaveness and ning (1963), in Stewart v. culminating P2d 560 (1970), 603, 469 P2d 783 Plywood Jefferson determine longer has decided to no this court proximate liability through concepts limits of one’s negligence definition of causation. Rather the legal liability. to determine the limits of is used *26 above) Restatement, 302B, supra, (quoted and § e comments See f. [570] O’Connell, J., in Stewart by As stated Jefferson at 606: Plywood supra, whose con- scope liability "The of the of an actor injury is causing in an duct is a substantial factor 'proximate frequently discussed under the rubric cause,’ part as a 'legal frequently cause’ or and less adopted the negligence. definition of We have approach.” latter reasons, holding by I
For these
would affirm
in sustain-
the trial court erred
Appeals
Court
I
complaint.
defendants’ demurrer
to
ing
plaintiff’s
in
every
hold that
case
liability
would not
there is
a visitor to visit
jailer
jail
permits
which
matron
inmate,
followed
an
course
escape
however,
hold,
injured.
which someone is
I would
this
should
under
plaintiff
opportunity
have the
her
to trial and to
allegations of
complaint
proceed
evidence of
introduce
facts and circumstances
may
jury
to find that
this matron should
permit
reasonably
by permitting Thomp-
have
foreseen that
visit
son to enter the detention center at
and to
night
girl
attempt
his
friend the two of them
well
might
that,
result,
might
as a
officer
well
escape
police
Mezyk
supra,
hurt.
v. National Repossessions,
Cf.
This case has evoked more than a resulted, has the members of this court and members, of our of one disqualification because disagreement. in a three to three amiable sup- forth the reasons dissenting This sets ruling. trial court’s the affirmance of the porting court, argument supplemental permitted this At oral and in briefs seq et that ORS 420.005 for the first time make the contention defendants centers, youth training seq, relating juvenil^ sсhools and 420.855 et raised application was not Because that contention has some to this case. fact, time, questions may I would it until this and because involve to decide the merits of that contention. decline *27 recovery under precedent allowing
There is no facts to those at bar similar is not an outset, the law
At the I will concede contrary, inanimate, Quite unmoving thing. dynam- of a of the needs capable meeting law must be has no court ic, And because changing society. merely not neces- recovery alleged under the facts allowed of ap- judgment But the collective sarily dispositive. worthy from the other 49 states judges pellate respect. some
I case involv- attempted every have to find and read ing against arising claims bodies acts public deny recovery of escaped prisoners. jurisdictions Most recovery out hand. No allowed jurisdiction has under the facts alleged complaint. the plaintiff’s I think not. Should we be first to allow recovery? A public list the cases claims involving against is in bodies from the arising escaped prisoners acts of An reveals: margin.1 analysis of these cases allowed, every 1. In case in recovery which there was a custodial between the relationship escap- ing prisoner entity sought and the or to be held liable. every
2. case allowing recovery, recognizable a existed, of harm high including risk a his- invariably (often conduct tory past described as a "propensity others”) for violence toward which alerts the person harm to having custody to the risk of physical physical others in the event of an escape. was no
Not one of these factors exists here. There
relationship
Murphy
Thomp-
custodial
between
had
conduct. No
Thompson
son.
no record of violent
1
(La
911,
Pitre,
Silva,
1977);
2d
v.
86 Nev
Frank v.
353 So
Geiger
1293
State
(La
1970);
(1971);
State,
App
Green v.
"(a) special a relation exists between the actor third person imposes duty upon and the which conduct, person’s actor to control the third "(b) special relation exists between the actor gives and the other right to the other a protection.”
The Sec- type "special contemplated by relation” 319, tion is further defined in Section which reads: charge person "One who takes of a third whom he likely bodily knows or should know to be to cause duty harm to others if not controlled under a exercise reasonable care to the third control prevent him doing such harm.” It is the custodial rise to relationship gives the duty. Absent this exists to relationship, duty no control the conduct of the criminal actor.
There must "recognizable high be a
degree risk harm” If there is one thing that the cases and Restatement clear, make it is that a mere "risk of harm” is not be, to create liability. prospec- sufficient There must tively, "recognizable risk of harm” from high degree the future misconduct the third lia- person, before bility ensues. (and
In every recovery case where has been allowed allowed), in there many recovery cases where was «oí evidence, escaping was from the record of the previous criminal, in custody peculiarly the criminal likely example, to inflict harm others. For upon 545, 550, State, v. Williams 308 NY 127 NE2d (1955), in rejecting the New York Court of Appeals, in the crimi- nothing noted that there was recovery, likely that he was give "any nal’s record to indication to wander from the and assault members prison allowing Appeals, The Louisiana Court of public.” Pitre, 1376, 1379, 2d recovery Frank 341 So (La 1977), "was a escaped person noted that App toward criminal with a for violence propensity known others.”2 rule.
The Restatement also sets forth a restrictive Comment d to Section 302B states: reason to anti-
"Normally the actor has much less antici- intentional misconduct than he has to cipate ordinary may he reason- pate negligence. case will not ably upon assumption that others proceed manner intended to cause harm interfere in a the intention- anyonе. particularly This is true where crime, ordinary circum- al is a since under conduct may reasonably that no one stances it be assumed there is a will the criminal law. Even where violate interfer- recognizable possibility of the intentional may ence, may slight, there possibility be so another as a slight a risk of foreseeable harm to so interference, reasonable man result of the it.” disregard the actor would position (Comment e), go say page The editors on to (Second): Section 302B Restatement are, however, the ac- in which "There situations man, anticipate and tor, required to as a reasonable intentional, mis- or even criminal guard against *29 arise general, situations of others. these conduct to- responsibility special the actor is under a where harm, which includes who ward one suffers mis- intentional duty against him such protect has conduct; act or where the actor’s own affirmative high recognizable exposed the other to created misconduct, through such degree risk harm of of take into account. a reasonable man would * * *” added.) (Emphasis 2 (La 1977), Pitre, App reversed on other 2d Frank v. 341 So 1376 (La 1977). grounds, So 2d 1293 353
[574] As an example of a situtation there is a where "recognizable high degree harm,” of the Re- risk of (F 302B): statement contains the and H following "F. Where charge the actor has taken or as- sumed control of a whom he knows to be peculiarly likely to upon inflict intentional harm added.) (Emphasis others.”
"H. knowledge Where thе actor acts with of peculiar high degree conditions which create a risk ” added.) intentional misconduct. (Emphasis (Sec- There is no doubt that Restatement of Torts ond), 449, § states that liability can arise from the act third, of a person, even though it is "intentionally tortious, or However, criminal.” stringent limitations are placed upon this rule. See Comment a: "* * * [T]he possibility mere or even likelihood may
that there
be such misconduct is not in all cases
sufficient to characterize the
negli-
actor’s conduct as
gence. It
only
where the actor is
duty
under a
to the
other,
them,
because of some relation between
protect him against
misconduct,
such
or where the
actor has
obligation
so,
undertaken the
doing
or his
conduct has created or increased the risk
harm
through
misconduct,
that he
negligent.”
becomes
Oregon
Under
Law No Cause
Action is Stated
Four
recent Oregon cases discuss
the test of
(1)
foreseeability
vis-a-vis
determination
(2)
whether
the defendant
is negligent;
the determina-
tion of whether
the defendant’s
is the
negligence
pro-
(3)
ximate cause of the injury; and
the allocation of the
determination
between the court and jury. Those four
cases are
v.
Dewey
Co.,
515,
A. F. Klaveness &
233 Or
(1963);
negligent, also at injury.” cause of the gence proximate is the 527. 539): (233 Or at opined
Justice O’Connell "* * * existing prac- law of causation under [T]he it offers little tice is so ill-defined and confused the juries to courts to the in or no aid either the * * prin- liability *. The problems solution cipal confusion is the treatment causa- source of i.e., tion, to whether concept, both as a as factual physically with the defendant’s conduct is connected i.e., whether, liability injury, concept, and as a as circumstances, should be the the defendant under prac- he injury present held liable for the caused. together in one concepts these are fused tice two consequence cause’ as a expression 'proximate this confu- concepts become confused. To avoid both causation separated I have the issue of sion factual questions in the case and from all other involved any other of the term in avoided use 'causation’ only the The of factual cause involves sense. issue awas sub- question of whether defendant’s conduct injury plain- producing in of which stantial factor regarded pure That as a complains. tiff is to be question judgment fact. It no as calls for liable what he is to be held whether defendant * * *” (Emphasis opinion; in foot- factually caused. omitted.) note doctrine, first ar- O’Connell’s
Ultimately, Justice Co., was supra, & Dewey v. A. F Klaveness ticulated law of Stewart Oregon. as the See adopted Jefferson case, In that Plywood supra. (255 O’Connell, Or at who wrote Justice written 606): liability an whose con-
"The actor sсope of causing injury is a factor duct substantial 'proximate under rubric discussed frequently cause,’ part frequently and less 'legal cause’ or adopted have negligence. We the definition language is used approach. Whatever latter essentially the injury categorize problem, (1) setting the are relevant same: what factors liability cause, limits of for conduct which is a (2) sense, injury, substantial of an what are the respective jury functions of the court and in passing upon question liability?” of the defendant’s atOr 606. *31 temptation
"The
here is to
question
leave the
jury
the
problem
where the
by
can be solved
an
process,
intuitive
relieving
thus
judicial
us from the
reaching
task of
a reasoned conclusion. Unfortunate-
ly, however, we have
duty
inherited the
to exercise
control
jury
over the
and to
it
keep within the bounds
it,
set for
vague
they
as
may be.”
Obviously, was decedent plaintiff’s of the the murder whether 609) Stewart, high- at "so supra, Or (quoting from that a say we as a matter of law unusual that can ly man, inventory pos- making reasonable might his conduct produce, of harm which sibilities to reasonably expected injury would not have occur.” to that say
It real the imagination takes a stretch of to reasonably of Officer Christensen was murder as- she and by Murphy "permitted be when expectеd the center.” entering sisted defendant Thompson analysis I in its opinion concur with court’s ORS 30.270.
HOLMAN, J., concurring part. I part concur in that of Justice Peterson’s that "recognizable which holds there was insufficient addi- alleged liability. risk of harm” to establish To tionally opin- out the weakness of the point opposing ion, let Thompson us was himself suppose to an act of Mur- prisoner escape by allowed difference, No insofar as liabil- phy. logical Murphy’s concerned, ity could based upon fact than Thompson helped escape, rather prisoner If such being escaping prisoner himself. were case, we then there is a would be faced with whether [the of risk harm "recognizable high degree oppos- § ing from comment c under 302.B language quoted (Second) a who the Restatement Torts]” run a car would away has home stolen deadly commit assault with physical a serious any No escape. pointed if allowed one has weapon liability has been case the United States where upon based such state of facts. *33 law, have
If it would opposing opinion became in that from cus- every escape serious consequences inflicts would tody present harm escapee be in It is not jury likely anyone going case. than Thompson who less a record for violence jail has [579] had. If this case makes a jury question on the degree risk, almost any case will. How far the opposing opin- ion has gone is proved by the fact it has not cited one case in which an appellate court has gone as far as it proposes to go imposing liability.