*1 19, 1993; Dеcember 15, 1994, Argued November resubmitted In Banc and submitted 512) (321 22, petition August Or affirmed March for review allowed FAVERTY, Frederic M. Respondent, v. RESTAURANTS
MCDONALD’S OREGON, INC., OF Oregon corporation, Appellant. CA A70327)
(9001-00394;
* Warren, J., participating. Franklin Hunsaker the cause for With argued appellant.
I. McClain, him on the briefs were Donald C. McClain & Bullivant, Houser, G. Houser and Rayburn, Douglas Bailey, & Hoffman. Pendergrass Neuberger respondent.
Robert J. the cause for argued Pozzi, him on the brief were Robert Udziela and With K. Wilson, Atchison, & O’Leary Conboy. Hill, Lamb, Hill, V. Bradford H. &
Jeffrey Zarosinski James M. Coleman and Power & Coleman filed a brief amicus curiae for National Council of Chain Restaurants. Jr., S. Keith P. Michael N.
Joseph Ruggie, Spiller, Hiñe and M. Elizabeth Duncan Chesney, Flory, Thompson, P.C. filed a brief amicus curiae Duncan, & Foley Institute, Defense Research Inc. Wheelock, Alfredo filed a brief III, H. Clarke and
Kathryn amicus curiae Trial Association. Oregon Lawyers
LANDAU, J.
Edmonds, J., dissenting.
LANDAU, J. appeals a judgment on a jury verdict awarding damages he injuries suffered when his van was struck by a car driven by defendant’s off-duty employee, Matt Theurer. Plaintiffs is that theory was negligent in working Theurer unreasonably hours, long knowing that he would then be a hazard to himself and others when he drove himself home from the work place. Defendant assigns error to the trial court’s denial of motions, several its of an overruling to one exception of plaintiff s jury instruc- tions and to its refusal to allow the jury compute percentage of fault attributable to Theurer. We affirm.
We state the facts in the light most favorable to plaintiff, who prevailed at trial. Dikeman v. Carla Properties, Ltd., (1994). Or App 62, 871 P2d474 Theurer was an 18-year-old high school senior. He participated numerous extracurricular activities, and he was a member of the National Guard. He also worked time part at one of defen- dant’s fast food restaurants. He was known to be an enthusi- worker, astic but his family and friends believed that he was trying to do too much and was not getting enough sleep.
At the time of the accident, defendant had many employees who attended high school during the day worked time in part the evenings. Defendant’s restaurant closed at 11 p.m., cleanup and closing procedures some- times continued past midnight. Defendant’s managers gen- erally tried to accommodate employee scheduling requests, but that was not always However, possible. defendant had a of not policy scheduling high school students to work later than more than once midnight week. The per employee manual said that also were not employees to be scheduled for split shifts. to one According of defendant’s managers, was because did not like employees to commute for having *4 split shifts, they and were to be avoidеd “so can people get their rest.” efforts, defendant’s Notwithstanding employees still complained sometimes about tired after being closing, and defendant was aware that at least two of its employees had automobile as a result of falling asleep accidents while home after late shifts. driving working year,
A each few times defendant would schedule special cleanup projects performed midnight, to be after while Employees high the restaurant closed. than was other school usually perform be students would scheduled to that work. managers One defendant’s testified if student projects such needed, workers were could scheduled during spring However, the weekends or break. due to employee, untimely dismissal of another one managers cleanup fill asked for a volunteer to the shift midnight Tuesday. that Theurer on was scheduled 5 a.m. manager knew offered to work extra shift. approximately 20 and that Theurer drove miles to from work. special During cleanup project, the week before the nights. nights, Theurer past midnight, worked five One those he worked cleanup project night before one—the p.m., p.m. approx- —until until 11 two 11:30 one until imately p.m. Monday, April regu 4, 1988, Theurer his
On worked cleanup p.m., p.m. 3:30 followed lar shift from 7:30 midnight ending Aрril beginning Tuesday, shift cleanup project completed, After the was at about 5:00 a.m. yet a.m. another shift from 5:00 a.m. to 8:21 Theurer worked During manager that tired shift, told the he was Theurer regularly his next scheduled be excused from and asked to manager agreed. so he could rest. The shift began trip A time home. short Theurer then drowsy asleep driving car his or fell while later, he became highway. per approximately At 45 miles hour on a two-lane dividing lane line into the road, his car crossed bend plaintiffs oncoming Theurer van. and crashed into of died, traffic injured. severely was against potential claims settled his Plaintiff action, representatives. then filed this Plaintiff Theurer’s requiring negligent alleging Theurer that defendant permit- adequate many rest, and in hours without to work too have ting defendant should a car when to drive Theurer safely. moved drive could not known that Theurer allegations ground complaint, on the to dismiss injuries plaintiffs were a the conclusion do conduct, consequence of defendant’s reasonably foreseeable *5 The as a matter of law. trial court denied the motion. Defen- any denying negligence. answered, then dant Defendant first, asserted two affirmative defenses. the defendant alleged plaintiffs injuries by neg- were his caused own ligencе. alleged In the second affirmative defense, plaintiffs injuries by negligence were caused the of accordingly, and, Theurer of defendant must comparison plaintiff be in determined with that of both Theurer. Plaintiff moved to dismiss the second affirmative ground jury defense the that the is not entitled to consider parties the relative fault of who have settled and are not the granted before court. The trial court the motion. jury. During
The case was then to a tried the trial, plaintiff complaint, allegation amended his so that the sole of negligence is that
“ negligent working [defendant was more Theurer hours than was reasonable under the circumstances when defen- knew, dant or in the exercise of reasonable care should have known, that Theurer would a motor operate vehicle and be a hazard to himself and to others.” arguing moved verdict, directed the plaintiffs injuries
evidence could not a verdict that reasonably consequence awere foreseeable of defendant’s decision allow Theurer to work hours that he did. plaintiffs Defendant also asserted that claim fails as a matter preempted any law, of because state labor laws have common liability concerning scheduling workers, law is denied the of and there evidence no of violations of those statutes. The trial court jury part: instructed,
motion. in relevant “Now, gentlemen, general duty ladies it is of every person society in our to use reasonable care to avoid damage reasonably anticipated. that would Reasonable persons ordinary care that care which exercise prudence management injury of their affairs own to avoid themselves or to others. therefore, negligence, doing of some
“Common law is the or it’s the reasonably that a careful would not do person act something reasonably person careful failure to do The care do the same or similar circumstances. would under or dangers apparent be in with keeping exercised should place question time and reasonably foreseeable hindsight. of events or light resulting in the sequence “A is liable for the person reasonably foreseeable his, her, its consequences things actions. There are two First, that must be foreseeable. must be within general persons reasonably class of that one would antici- might conduct; be threatened pate sec- ond, general the harm suffered must be within the class of reasonably might anticipate harms that one would result in It necessary party the defendant’s conduct. is not that a precise injury foresee either the or the exact manner its occurrence.” jury plaintiff, finding then verdict in returned a favor *6 plaintiff negligent
that not at all. appealed. Approximately three months filing appeal, magazine after the of the article notice of reported jurors of least one this case said that jury $100,000 increased its award after someone plaintiff lawyer speculated pay a would have to one-third contingent damages his fee. for a of for a Defendant moved jury arguing of trial, new that the article constituted evidence The trial court denied the motion. misconduct. assignment error,
In defendant contends its first granted defendant’s motion that the trial court should have plaintiffs complaint. assignment In its second to dismiss have error, that the trial court should defendant contends granted In verdict. motion a direct defendant’s argues assignments, be held that it cannot both duty plaintiff it no law, a matter of because had liable to as many working prevent he did. as hours as Theurer employer, According no it had defendant, Theurer’s as duty employers schedule, both because Theurer’s work to limit duty and because at common law
have no such argues preempted Plaintiff havе field. labor statutes state 1J, Or Dist. No. v. Portland School Fazzolari under (1987), neg- liability defendant’s 17, 734 P2d 1, depends con- ligence generally on whether defendant’s unreasonably to the risk of harm a foreseeable created duct question for the plaintiff. fact contends, That, According plaintiff, as an status jury decide. general any on that employer limitations not it does entitle impose limita- duty, do labor statutes the state’s duty either. tions on
In reviewing the denial of a motion for a directed verdict, we view the evidence in the most light favorable to the nonmoving party, to that extending party the benefit of every reasonable inference that may be drawn from the evidence.
Shockey City Portland,
v.
422-23,
The necessary starting point for any discussion of sufficiency evidence in a case is the Supreme Court’s decision case, Fazzolari. the court held that
“unless the parties status, invoke a or a relationship, particular standard creates, of conduct that defines, or limits the defendant’s duty, the of liability issue for harm actually resulting from defendant’s conduct prоperly depends on whether that unreasonably conduct created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff. The role of the ordinarily court is what it is in cases involving the evaluation of particular situations under broad imprecise standards: to determine whether upon the alleged facts or the evidence presented no reasonable fact- finder could decide one or more elements of for one or *7 the other 303 party.” Or at 17.
Defendant and the dissent that the argue foregoing test was overruled in recently Buckler v. Corrections Oregon (1993). Div., 499, 853 316 Or P2d 798 We find no such holding in Buckler. To the contrary, the court from quoted and the applied two-step analysis just quoted.1 Three members of 1 argues The dissent holding of Buckler is that the ‘facilitation’ of the risk of harm in terms “The foreseeability enough by get negilgence of is not to a common itself law case to jury.” App
the
133 Or
at 540.
is, however,
language
say
in Buckler. What Buckler does
There
no such
is that
result,
intervening
where
inten-
“mere ‘facilitation’ of an unintended adverse
criminality
force,
person
harm-producing
tional
another
is the
not cause
does
”
(Emphasis supplied.)
the harm so as to
for it.
the
to be over
suggested
simply ought
court
However,
majority
the
the court
declined
expressly
ruled.
least
one more
Accordingly,
emerges
to do that.
until
vote
Fazzolari,
to overrule
are con
Supreme
Court
we
is,
fact,
strained to
it. That
the manner
which this
apply
routinely
consistently analyzed negligence
court has
Buckler.
cases, even since the
Court’s decision
Supreme
See,
v.
Slogowski
213,
884 P2d
e.g.,
Lyness,
217,
131 Or
App
v. Multnomah
136,
131 Or App
(1994);McAlpine
County,
566
rev den 320 Or
Zavalas
(1994),
(1995);
P2d
Corrections, 166, 171,
v. Dept. of
Defendant it was and, subject to a limited relationship, because of a matter of law. to both Theurer as duty plaintiff, (Second) Torts on Restatement §§ 315 and relies (1965). that: provides Section 315 a third duty person is so to control the conduct of “There no him harm another prevent causing physical as unless
“(a) the actor and a relation exists between special actor to control duty upon person imposes third conduct, person’s or the third
“(b) actor relation exists between special right protеction.” to the other a gives other which rise to gives relationship one special 317 states Section rule: general to that exception care so duty to exercise reasonable under “A master is his scope acting outside his while control servant harming intentionally him from prevent as to employment an unrea- conducting himself as to create so or from others them, if harm to bodily risk of sonable “(a) servant “(i) the master possession is upon premises his as enter privileged servant which the
upon servant, or *8 proceed therefore, premise, we no evidence, proceeds and need from a false of it. in our discussion further
523 “(ii) master, using is the chattel of the “(b) the master
‘‘(i) knows or has reason to know that he ability has the servant, to control his
“(ii) necessity knows or should know of the and oppor- tunity exercising such control.” that,
Defendant because the argues evidence shows that accident that caused plaintiffs injuries occurred off defen- did chattels, dant’s not involve the use of its premises to the rule that is described section 317 exception general and, therefore, does not it is entitled apply rely on the rule general nonliability for the conduct of others that (Second) section 315 of the Restatement Torts. stated The оf defendant’s linchpin is section which states a rule of general nonliability for to control failing the conduct of third It all persons. applies persons, unless a relation rise to a to control the conduct of special gives duty the third relation person. By demonstrating special does not in this defendant case, asserts exception apply it is entitled to on the rule of rely general nonliability stated however, linchpin, section 315. will not support of defendant’s weight argument. argument, for the sake of that section 317
Accepting, is not entitled to limit its duty does not apply,2 section 315. The limitation of section plaintiff by invoking status, not arise out of any relationship 315 does particular that, according is a standard statutory standard of conduct. It (Second) Torts, to the Restatement persons. all applies Fazzolari, unless a defendant invokes a However, under or is to a subject particular status or relationship, special duty conduct, subject general it is to the standard statutory a foreseeable risk unreasonably creates to avoid conduct Fuhrer Fazzolari, see also 17; Or at 303 of harm to a plaintiff. Sea, P2d 874 Inc., 434, 438, Or By
v. Gearhart (1988). the ones fact, apply, although reasons different than it does not duty employer to contrоl an of an Section 317 concerns
defendant asserts. case, scope employment.” In acting of his this employee’s “while outside conduct many scheduling negligent him to work too alleges that defendant was job. hours on the if section 315 of the Restate- argues *9 (Second) ment Torts does not limit its to duties the plaintiff, of labor clearly According defendant, state’s statutes do. to ORS “has the public 652.010 declared of as to policy this state the number of that an shall hours employee permitted to and has a work,” not violation of plaintiff pleaded that Similarly, statute. defendant asserts that ORS 653.261 authorizes the Commissioner of the Bureau of Labor and to Industries maximum hours of prescribe employment, and that has failed to violation of plaintiff again plead that statute or thereunder. We any regulations promulgated disagree. with,
To ORS 652.010 does not begin any prescribe number of hours that an particular employer may require its merely to It employees work. states: public
“It is the of that no shall be policy person this state hired, nor under permitted wages, any to work for conditions terms, longer days or hours or of service is consis- than * * *.” physical well-being tent with health and person’s the 652.010(1). ORS Moreover, does to operation the statute not the оf apply terms, it to restaurants. its the of operation By applies “any mill, factory manufacturing establishment.” ORS 652.010(2).3 ORS is equally
Defendant’s reliance on 653.261 maximum establish unavailing. That section does not work. It authorizes the Commis merely number of of hours do so. In the of Labor and Industries to Bureau sioner regulations promulgated the addition, ORS 653.261 and workers, not to the the protection thereunder relate to the consequences general public protection Zavalas, See at 171.4 App worker’s conduct. light of especially in the argument is difficult to understand Defendant’s complaint origi opposite precisely position at trial. Plaintiffs fact that it took claim, that moved to dismiss
nally alleged of ORS 652.010. Defendant a violation apply operation of restaurant.” arguing “does that statute alleged plaintiff argument have again, should that Once trial, position where it took at is at with the it statute odds proven a violation of the 653.261, because violated allegation it had ORS plaintiffs that dismiss moved to possible effects of protection and not the of workers chapter “relatefs] to the employee’s scope work parties the course third outside workers on relation.” that, even if it is argues to the subject general Fazzolari, stаndard of evidence this case was insufficient to allow the court to send it to the jury. According defendant, there is no evidence it knew or should have known that Theurer was so exhausted or it fatigued should have foreseen that him three 24- working shifts one hour would create a period foreseeable risk of harm to motor ists such as Plaintiff plaintiff. that defendant failed argues preserve any event, the evidence is sufficient the trial court’s ruling.
We do not agree with failed preserve argument. Defendant argued below that * * * has “[t]here been no evidence having of [defendant’s] any knowledge of impairment Theurer, on the part of Matt nor has there been proof that [defendant] should have known that Theurer had an impairment based upon facts that *10 have been introduced.” was preserved. agree, however,
We do the evidence was suffi cient to the trial support court’s In ruling. Donaca v. Curry Co., 30, 38, 734 P2d (1987), decided the same day Fazzolari, as Court said that Supreme “in an extreme case a court can decide that no reasonable factfinder could * * find the risk foreseeable *.” This is not such an extreme case. There is evidence that defendant controlled all work assignments. Therefore, defendant knew or had reason to know of the number of hours Theurer had been working.
There also is evidenсe that defendant ordinarily did not use school high students to work after midnight, did, when it it tried to limit that late shift to once a week. Defendant also had a not policy of its two shifts in one working employees day. According to at least one of managers, those were and enforced out of concern that policies adopted fact, not In become tired on defen employees overly job. dant had recently was aware that at least two its employees falling asleep had automobile accidents as a result of while There is home after late shifts.5 evidence driving working regard, itself. In In that the facts of this case recall those Fazzolari Fazzolari, injuries resulting sued the defendant school district grounds. plaintiff alleged defendant was rape on that the her assault and school in, security grounds things, failingto provide proper negligent among on school other during late-night visibly
that, shift, and after his Theurer was managers fatigued, and that defendant’s were on site and saw throughout undisputed Theurer that shift. It is that defen high dant knew that Theurer was a student, school and that high most of the school who there drove students worked evidence, work in their own cars. On the basis of that jury that defendant knew or reasonable could conclude many working have known that Thеurer so hours should safely. impair ability his to drive home would Defendant and the dissent insist because many hours, Theurer “volunteered” to work so simply the evidence negligence, to establish defendant’s as a is insufficient characterizing all, facts, matter of law. First of in so put “spin” on the evidence to defendant and the dissent Shockey, they Or at 422-23. The are not entitled. plaintiff, light in the most favorable to shows evidence, taken not, blue, volunteer to take three that Theurer did out of the affirmatively period. Defendant asked in one 24-hour shifts him to work those hours. Moreover, the evidence shows employees—generally all work controlled defendant—not its assignments employees penalized its defendant and that assigned. working as assumption indulging Theurer Second, even all-night still suffi- the evidence shift, for his volunteered managers jury’s Defendant’s verdict. cient to already to work more had been scheduled Theurer knew that they policies permitted. him in a Moreover, saw its own than fatigued visibly work him as sched- continued to state and regard, much like a bartender uled. person visibly beverages intoxicated alcoholic who served who then caused *11 harmed accident that an automobile grounds. In attacks on school possibility of such failing of the warn students to had been that a woman allegation, plaintiff introduced evidence the support of that days attack on grounds before the sexually on the school assaulted on the school previously occurred had kinds of attacks plaintiff, and that other defendant, but the favor directed verdict grounds The trial court as well. wholly for a reversed, unreasonable holding “[i]t would not be that Supreme Court prior was sufficient to assaults of those the evidence conclude” that factfinder wholly Similarly, it was not in this case at 22. negligence. 303 Or support a verdict prior that, accidents evidence jury because for the to conclude unreasonable hours, late-night defendant should many employees working too resulting from the list of addition to many became an that he hours Theurer so have worked accidents. intoxicated to have the person No one required another. He she asked for the drink and “volunteered” extra drink. Nevertheless, that, the courts have held because for it. pay state, visibly the driver in a intoxicated the bartender saw foreseeable that the customer will drive when it is reasonably leaves, consequences the bartender is liable for the he or she v. Campbell Carpenter, of the automobile accident. (1977). P2d 893
237, 243-44, 566 at trial if it defendant itself conceded Finally, ’ ‘ the clock to work around had allowed Theurer to ‘volunteer’ three full days, law, allowing say almost as a matter of someone
“court can well might very rest or long sleep work that without employer, but [it] constitute affirmative misconduct * * degrees a matter of may be Thus, Theurer volunteered or not is not the simply whether whether, as in his com- point. plaintiff alleged point more working “was Theurer plaint, negligent said at is, than reasonable.” That as defendant hours words, In other it is a matter for trial, “a matter of degrees.” a matter of decide, not for the court to resolve as jury law. the National
Defendant, the dissent and amici curiae and the Defense Research Council of Chain Restaurants trial court’s judg- v. to reverse the Institute, Inc., implore the result is “patently that policy ground ment on the public beyond unreasonable,” “goes “farfetched” “shocking,” However, law.” of tort the common-sense application court, and we will not to the trial was not made is to Our function first time on appeal.6 consider it for the for a grounds defendant’s motion counsel stated these Defendant’s directed verdict: defendant, Oregon, Honor, McDonald’s time the Your at this “[Counsel]: also for a verdict and Inc., this сase and directed the dismissal of moves for ground grounds: is that pleadings The first
judgment on these on the are not that is there One basis for complaint to state a claim. as amended fails this support present complaint the contention alleged in the facts pleading is a that the reasonably We contend foreseeable. result was accident and support allege obligation which facts has and that conclusion foreseeability. grounds a claim on the failure to state “Secondly, on the basis of we move some took that McDonald’s alleged facts he has not *12 528 the trial court made an error of law
determine whether
about
issues
raised below and
as error on
actually
properly assigned
Meadows, Inc.,
517,
Or App
Ailes v. Portland
848
appeal.
(1993).
den
In its third of assignment argues incorrectly on the jury that the trial court instructed claim. to defen- According elements of plaintiffs dant, faulty the instruction was in that it was based on the creates a unreasonably to avoid conduct general duty harm, risk instead of the more limited duties foreseeable of (Second) under the Restatement apply it contends of labor statutes. We will reverse the trial and the state’s Torts it delivered jury if we conclude that the instruction court law in the created an erroneous of the imрression probably which affected the outcome of case. jurors, minds of the Lord, 361, 370, v. 474 P2d Terminals P.S. Waterway (1970). third of its arguments support Defendant’s the same as those asserted essentially are assignment stated, already two. For the reasons previous The trial court did not err. reject arguments. we those again driving morning. action which led to Mr. Theurer his vehicle on that affirmative Oregon, allegation foreseeability not the We contend that the bare of law through requires Oregon—that that the that the law in restatement 317 party its employer defendant make some affirmative act so that conduct they’re seeking will lead to the act or to the loss that —that affirmative act compensation for. proof, “Thirdly, there’s been a failure of and move to we contend that work within the for a directed verdict. There has been no evidence of dismiss or proof employment any proof scope nor has there been of—no of course and of having knowledge impairment part any of Matt on the evidence ofMcDonald’s Theurer, proof that McDonald’s should have known that nor has there been impairment upon had based facts that have been introduced. Matt “Lastly, that the we to dismiss and a directed verdict on the basis move by and administrative rule and in this state are controlled statute hours work preempted have the common law statutes and administrative rules that these area, proof the statute.” and that there is in this case no violation of this public plaintiffs violate that a verdict in favor would Nowhere did counsel assert policy. policy by public defendant’s counsel that the The dissent relies on a statement any duty after he [Theurer] have to watch out for is that defendant “didn’t this state However, made in to note that counsel’s remark was left work.” the dissent fails concerning that the state’s response questions the court public policy preemptive concern- provide statement of the exclusive labor laws ing arguments nothing the dissent to do with the The discussion had hours of work. now asserts. In its fourth assignment error, defendant contends that the trial court should have granted defendant’s motion for a new trial. Defendant argues article magazine that reported possibility the jury increased its award to cover plaintiffs attorney fees was “clear evidence of actual * * jury misconduct *.” In the denial reviewing of a motion for *13 a new trial based juror misconduct, * * * generally
“we
defer to the discretion
court[,]
of the trial
because the trial judge is usually in a better position to
evaluate the сircumstances of each case and the prejudicial
effect, if
any,
any claimed irregularity.”
Adams,
Moore v.
(1975). (Citations
576, 579,
omitted.)
273 Or
“While
affidavits are receivable in evidence in the
sense that
the trial court should permit
filed,
them to be
affidavits which disclose nothing more than oral misconduct
during
jury’s
impeach
deliberations cannot
verdict.
order to
plain
make
the meaning
rule,
we will restate it:
juror
The affidavit of a
concerning
jurors
utterances of other
during the
any
deliberations or at
other material time cannot
warrant
the impeachment of a verdict. The kind of miscon-
juror
duct of a
that will be
considered
an attack
upon
* *
by juror’s
verdict
affidavit*
is misconduct that amounts
fraud,
bribery,
any
forcible coercion or
other obstruction
justice
subject
that would
the offender to a criminal
prosecution therefor.”
Ertsgaard
In this the information on which defendant based its motion was insufficient ver- impeach jury’s Blanton, dict. As article magazine suggests one or more jurors may have “oral misconduct.” There is engaged 7 “quotient juror by having A verdict” is one that is arrived at each write down entitled, prevailing party an award to which he or she believes the and then Law dividing jurors’ jurors. See Black’s sum all awards the number of (5th 1979). Dictionary, grounds ed verdicts are invalid and constitute Quotient (1930). Co., 366, 371-72, a mistrial. Hendricks v. P P.E.P. 134 Or fraud,
no evidence of forcible bribery, coercion or other criminal obstruction of justice. Thus, the trial court did not err in denying defendant’s motion for a new trial.
Finally, defendant assigns error to the trial court’s dismissal of defendant’s second defense, affirmative alleged fault, that defendant’s if should have been any, “com ” * * to that of pared plaintiff and Matthew Theurer *. Defen that, dant under ORS argues 18.485(3), if it is found to be less than 15 at fault percent for economic damages, its liability economic is several It damages only. argues because the of that purpose is to provision prevent tortfeasors who are minimally fault from held being liable for more than their fair “portion committed,” of the wrong to allow com failing with all tortfeasors is parison to that statute. Plain contrary tiff argues of the statute and language its context demоnstrate clearly of fault comparison involves parties action, to the and not to tortfeasors, other such as Theurer, whose was not at issue at trial.
We
with an
begin
examination of the text and context
of the statute. PGE v.Bureau Labor and Industries,
*14
(1993).
606, 610,
ORS provides: defendant who be than liability “The of a is found to less damages at fault for the economic awarded the percent plaintiff only.” shall be several
That is of a series of part statutory provisions provision ORS with relating comparative negligence. Beginning to 18.470, provides the statute comparative negligence recovery does not bar a contributory plaintiffs seeking recovery was person “if attributable to the the fault persons fault of the or person than the combined greater not * * recovery sought *.” ORS 18.470. against is whom The statute then when is at provides that, fault comparative issue, a may request jury the to answer party special ques- issue, tions about that specifically:
“(a) damages The amount of to a party seeking recovery entitled, assuming party would be not to be at fault;
“(b) degree party’s expressed of each fault as a percentage of the total fault attributable to all parties repre- sented the action.” ORS 18.480. the statute establishes rules the
Finally, specific concerning liability joint tortfeasors. It first with provides respect to damages, noneconomic arising bodily injury, civil action out of death or
“[i]n damage, including claims for emotional or property injury distress, care, comfort, and society, loss of companionship consortium, and loss the of each defendant for damages plaintiff to noneconomic only awarded shall several 18.485(2). joint.” not be shall ORS In each of the referred to the provisions, legislature those lawsuit, parties fault of comparative “potential liable That persons.” parties” “potentially language the plaintiffs lends substantial fault of is not to be considered under ORS nonparties 18.485(3).
In fact, that construction that precisely has ORS 18.470 Supreme given parallel language Court Brown, P2d 603 and ORS Mills v. 18.480. in a (1987), the was three-vehicle automobile plaintiff injured two drivers and accident. He settled with one other it jury, case was submitted sued the other. When the tortfeasor with the fault of the was not consider permitted Judgment ultimately had whom settled. verdict defendant, jury’s because of the
entered
favor
fault.
comparative
concerning
proportion
plaintiffs
18.470, his
that, under ORS
appealed, arguing
The plaintiff
*15
of
other
to
of both
have been compared
fault should
ORS
holding
disagreed,
Court
drivers. The Supreme
to the lawsuit:
to
parties
refers
actual
only
18.470
only
those
addressing itself
to
as
that statute
interpret
“We
the case is
sought when
recovery is
against whom
persons
of fault.
comparison
the trier of fact
submitted
statutory scheme
comparative
jury
restricts the
or
of
fault
judge,
fact-finder,
as the
consideration
of
fault of
the parties
the court at the time the case is submitted to
before
a verdict or decision."
Defendant insists that the of ORS 18.470 provisions irrelevant, and ORS 18.480 is concern because those do not joint liability among and several For that defendants. they argue inapposite. reason, also that Mills is We are unpersuaded. contrary
Defendant’s to the method of statutory analysis required by PGE v. Bureau Labor and Industries, 611-12, 317 Or at which includes an examination surrounding adopting Moreover, related statutes. reasoning leads to the anomalous result of requiring juries nonparty to consider the fault of tortfeasors determining plaintiffs comparative when fault, but not a comparative Nothing language defendant’s ORS fault. in 18.485(3) suggests legisla- other statute that the comparative ture intended that result when it enacted fault statute. legislature’s purpose Defendant contends that the 18.485(3)
enacting was, fact, ORS to cause “afundamental Oregon,” change designed give potential in the law of “deep pocket” special protection being defendants tar- geted by plaintiffs who settle with all other tortfeasors. argument, portions refers to of that 18.485(3). legislative history of ORS legislative history necessary in rеsort to is not
First,
dispositive.
case,
are
PGE
this
where the text
the context
Second,
Industries,
533 history nothing legislative find in the that demonstrates legislature comparative fault intended even to address the nonparties, less a that the fault of such of persons much establish rule regard, it In that is
must be taken into account.8 noteworthy although issued the Mills decision was during legislative in which ORS session 18.485 legislative hearings enacted, there no in is mention concerning or it debates the court’s decision the issue hearings Third, even if were in decided.9 there evidence those legislature issue, or debates that the intended to address enacting 18.485(3), that, in not the fact remains address that intentions that are manifested the language, ORS it did law, are not those issue. Inchoate intentions language in enacted. If is legislature did not in enacted address matter such free 174.010;
we are not to insert it. ORS PGE v. Industries, Bureau and 317 The trial Labor Or 611-12. of dismissing did not court err defendant’s second affirmative defense.
Affirmed. dissenting. J.,
EDMONDS majority The that a holds restaurant can be held employee negligence for common law because its adult liable asleep driving work, fell while home from crossed the center oncoming plain- traffic line into the lane оf and collided with liability: tiffs vehicle. The reason for the restaurant’s It accepted employee’s overtime, and, accord- to work offer majority, thereby responsible ing risk of became for the to the fatigue. holding injury employee’s caused state of That Oregon. precedent It makes all the State without history principal legislative debate on what reveals that the focus The 18.485(3) liability. possible joint and The was the elimination of several became ORS joint liability when produced compromise, several which eliminated and debate Minutes, Judiciary percent at Senate is found to be less than 15 fault. See Committee, 3, 1987, subject nonparty liability pp. was not The March 6-7. history repeated legislative references to the allocation The does contain discussed. which, anything, suggests “parties,” that the if between fault “defendants” require nonparties included under fault legislature that the did intend 18.485(3). Insurance, Minutes, Liability Task Force on Joint Interim ORS See Committee, 5, 1987, February 5; Minutes, Judiciary 16, 1986, p. September Senate 1987, 5-7; Minutes, Committee, Minutes, pp. 4-5; Judiciary pp. March Senate Committee, 20, 1987, Judiciary May pp. 8-11. House 4,1987. Supreme argued March submitted had been The Mills case 14,1987. April its decision Court issued employers potentially liable for their emрloyees’ off-premises when an employee becomes tired as a result of never working. That has been the law in Oregon nor should it be now. majority need have gone no further than defen-
dant’s motion for a directed verdict this deciding case. is entitled to a directed verdict as a matter of law because of certain First, uncontroverted facts.1 Theurer was minor, not a but an adult at the time of the accident. He was years old the National serving Guard. Defendant did not owe any special to him he responsibility because also *17 school. See ORS 109.510. The attended high fact that he was a student time and working part had over-extended himself physically is of no to defendant’s rule import liability. No to into the requires employer inquire private lives of its adult to determine a employees if, on occa- given sion, the is not employee getting enough sleep.
Second, Theurer volunteered to work clean-up by shift. He was not out defendant and to sought “required” 5, days work 1988. Several before defen- April April dant’s encountered a He had a shift manager problem. special work on the 5. One scheduled to hours early morning April had for the had been who been scheduled shift persons reasons. Theurer was suspended disciplinary Originally, A manage- not scheduled to work on shift. member of the Theurer, including ment team talked to 10 or 11 employees, fill the and asked if there was a “volunteer” who could vacancy suspension. inquiry on the shift caused His There is no evi- not directed to particular any person. Theurer, was including pressured dence that any employee, in the shift. Theurer volunteered to work any way to work noticed that The manager charge scheduling shift. majority says put “spin” which defendant I on the evidence to that have may every inference that is entitled to reasonable is not entitled because quarrel proposition App with the 526.1 don’t drawn from the evidence. 133 Or at on, apply diligently this case. The facts I endeavored to it to law it relies and have qualified opinion. specifically opinion unless are uncontroverted recited this arise under different Simply facts from which could because there are other abrogate circumstances, our the trial court or we are not mean that does whether, a whole in the evidence is considered as responsibility determine when a directed verdict on plaintiff, defendant is entitled to light most to the favorable of law defendant’s whether as a matter Specifically, we must decide these faсts. plaintiff. light harm that befell of the kind of unreasonable conduct was April four hours on 4. He scheduled to work for Theurer was asked shifts,” and, two be able to “handle the Theurer if Theurer would responded, according manager, to the Theurer manager problem.” testified be a “Yes, it wouldn’t getting some rest with Theurer about he also discussed “something catching about shifts, and Theurer said between nap he was sched- volunteered, Once Theurer in between.” uled for shift.2 asked to be relieved from work-
Third, Theurer never during ing it; nor is either before the shift started or the shift request. On defendant refused such a there evidence that Sunday, April 3, 1988, Theurer worked five and one-half April p.m. p.m. 4, he defendant, from 6 to 11:30 On hours for got up 7:15 a.m. a.m. and left for school at about at 6:30 got school, he, his brother and friend However, when he periods skipped class of school. Theurer the first four arriving at afternoon, returned to class for the rest of the p.m. begin He worked until 7:30 defendant’s to work at 3:30 going p.m. a friend that he was on a date. time, At that he told anyone supervisor nor at the restaurant Neither Theurer’s begin knew whether Theurer had rested before he arrived midnight employees shift. Theurer and his fellow finished the the project approximately
clean-up However, 5 a.m. go again Insteаd, he Theurer did not home after the shift. voluntarily open until 8 remained at the restaurant a.m. requested, grill. morning, the first Sometime that he *18 shift; the one that he scheduled time, to be relieved from was day. granted request, Defendant his to work later go Theurer the restaurant to home. left majority says: evidence, light plaintiff, shows that Theurer “The taken most favorable not, blue, period. did out of the volunteer to take three shifts one 24-hour Moreover, affirmatively the evidence asked him to work those hours. assign- employees—generally all work that defendant—not its controlled shows employees working assigned.” penalized for not as ments and that defendant its App Or at 526. majority says did not I do understand what the means when it that Theurer not among described. Theurer was
volunteer “out of the blue.” The facts are as ” ‘ There is no group employees of whom defendant asked if there was a ‘volunteer. penalized by employee defendant for not volunteer- evidence that had ever been ing. “penalties” employee if an desired not to work a evidence of two,” particular more hours at a shift for a “month or it could be difficult obtain change, Also, requested employee a shift it could later if an once scheduled on time. regain hours on а different be difficult to the lost shift. Fourth, Theurer was not on defendant’s business premises and was on his own time when he drove home from morning. acting work that Theurer was not on defendant’s right behalf, nor did defendant have actual control of or the driving control Theurer’s conduct or where he went after he got off Moreover, work. no omission or affirmative act prevented choosing Theurer from to have someone pick nap him work, after or to take a in his car before v. driving preventive home, or some other measure. The acci- dent occurred about 20 minutes after Theurer work, left at a location miles from where defendant conducted business. plaintiffs presence There is no evidence that on the road had any connection with the business of the restaurant. Fate many traveling would have it that he was one of motorists the the the highway way morning, and it was his vehicle that inwas asleep
when Theurer fell and his car crossed over center line. plaintiff brought
It is this factual context that his negligence against Initially, plaintiff claim of defendant. alleged specifications negligence: two
“Defendant negligent following was in one or more of the which particulars damage was a cause of plaintiff: “a. requiring many Theurer tо work too hours without rest; adequate permitting
“b. Theurer to drive a car when defendant knew safely or should have known that Theurer could not drive a car.” plaintiff put chief,
After on his case in defendant moved for a prove directed verdict on the basis that had failed to cognizable negligence. claim of Apparently, plaintiff knew he He had trouble. ‘ ’ proven ‘required’ that defendant Theurer to work
clean-up probably Moreover, he was aware that there is shift. imposes concept no traditional employee employer prevent responsibility on an employee’s operating work shift is his own car once the (A necessarily majority’s holding completed. theory that the responsibility employer for its is to avoid endorses if an *19 these.) negligence employee’s circumstances like under
537 verdict, to counter the motion for the directed Instead, plain- and in specifications tiff moved to delete the above thereof, lieu asked to allege: leave negligent working
“Defendant was in Theurer more hours than reasonable under the circumstances when defendant was or in the exercise of reasonable care should have know knew operate and that Theurer would a motor vehicle be a hazard to and himself to others.” granted
After from the thе trial court hearing argument parties, thereafter, complaint and, motion to amend the plaintiffs denied defendant’s motion for a directed verdict. the
It is not clear the or from parties’ arguments what traditional of common law majority opinion concept neg- ligence implicated by allegation the that defendant “worked” Theurer “more hours than was reasonable under the circum- stances” or how of that proof allegation employer renders nonwork-related hable for employee’s off-premises, neg- ligence. If the is meant to that Theurer had no allegation imply shift, that, course, choice but to work the is not the fact of matter. there are two in time Beyond potential points to a when could be deemed to have exposed plaintiff defendant of harm for Theurer too hours. having many risk “worked” to work several first time is when Theurer volunteered point is April 5. The second in time on 5. April before days point I mind, plaintiffs of time in turn to points With those He he the case. theory argues
‘ scheduling actively by that McDonald’s was fault its ‘proved Theurer, him to permitting and then practices overworking of his exhaustion- it knew or should have known drive when case, and Thus, focus of the proper impairment. induced who managers, is on McDonald’s below presented one reason- beyond that which was Matthew Theurer scheduled they when com- premises on managers [sic] were able. These course acts, did so within the they negligent their mitted Thus, of McDonald’s scope employment. of their scope under analyzed must be by them injuries caused P2d 1J, Or No. Dist. v. Portland School [Fazzolari (1987)] disposed negligently they it be if had just as would force grease way found its premises, grease [sic] was roadway, premises off gravity [sic] grease.” (Emphasis in the car skidded when his injured original.) pointed plaintiffs
As I
have
out,
negligent
permitting
Theurer to drive on
*20
April
supported by any specification negligence
5 is not
left
allegation
in the case.
response
That
was deleted in
to the
motion for a
plaintiffs
directed
argu-
verdict. That leaves
ment
“scheduling practices.”
about
defendant’s
any scheduling germane
time defendant did
to this case was
days
April
several
before
5. Plaintiff invokes the rule of
concerning
Fazzolari
day.
defendant’s conduct on that
In Fazzolari, the court said that the law does not
provide
remedy
negligence
injured
in common law
for an
plaintiff
plaintiff
unless the kind of harm that the
suffered
arises from “unreasonable” conduct that creates a foresee-
particular plaintiff
able risk of harm to the
in the case. 303 Or
always
17. Prior to Fazzolari,
had
been
expressed Oregon
“duty
in terms of a breach of
of care”
existing
that was owed under the
circumstances. The court
explained
Oregon
in Buckler v.
Corrections Div.,
“The
part
of the discussion in Fazzolari
is
quite simple. ‘Duty’ and ‘foreseeability’ are each but verbal
tools used in explanatory reasoning to
legal
answer the
question,
‘Should defendant
pay
plaintiffs harm?’ In
formulation,
either
the use to which
litigants
courts and
put
* * *
question
the
remains the same.
Either formulation
—duty or foreseeability—is a method of describing how the
law limits the circumstances or conditions under which one
may
member of society
expect another to
pay for
harm
suffered.”
The issue then is: Should defendant tiffs harm defendant because scheduled Theurer to work on clean-up majority analysis shift? The bases its on the facts scheduling that defendant endeavored to avoid double shifts employees, high for its scheduled school students to avoid working employees previously hours, late and knew that its falling were involved in automobile accidents as a result of driving working asleep while home after late shifts. Based majority facts, these concludes because the risk of resulting plaintiff conduct was harm to a matter “foreseeable,” issue of defendant’s was Thus, for the it jury. for the trial court to proper deny motion for a directed verdict. majority’s analysis wrong because facts are
relied on it not unless defendant’s conduct controlling created an risk of “unreasonable” harm to plaintiff. case,
context of this the question is whether defendant created an unreasonable risk of harm to person on the every highway when it scheduled morning Theurer work. That ques- tion must answered in the light of the uncontroverted facts that Theurer was an adult did employee, require shift, him work that Theurer assured defendant’s he that would rest between shifts and manager that he would be able to the shift physically, handle that Theurer asked never shift, be relieved from the harm to occurred off as a premises defendant’s work result an activity over defendant had no By control. right holding *21 the responsible for of all on safety persons the roadway, majority the makes “general the test foreseeability” for whether determining conduct is deemed “negligent.”
The
that I
majority
read Buckler as
over-
says
having
ruled
It
Fazzolari.
is mistaken. What Buckler did was to explain
that Fazzоlari was not intended to mean that
common
every
law
case
to the
the
negligence
goes
because, in
chain
jury simply
of
certain conduct
harm
causation,
facilitated the
that befell the
Thus,
is
plaintiff.
“general
not the
focus
foreseeability”
proper
under the Fazzolari standard. That
clear by
is made
proposition
the
Court’s
of
in Kimbler
Supreme
overruling
holding
its
v.
(1987).
Kimbler,
Stillwell, 303 Or
decided because negligence concepts. law common * ** is charged
“Because
store
with
being
respon-
sibility
intervening
all
intentional criminal conduct that
might conceivably occur, we think the breadth of Kimbler’s
holding
cannot
a
supported
foreseeability analysis that
defendant,
requires
liable,
that a
must
to be
have unreason-
ably created the risk ofthe
of harm to plaintiff
sort
that befell
(Emphasis
original.)
him.”
“Some
read
Fazzolari
message
find
others do not
there. The assumed
was that all
claims
negligence
general foreseeability
plain-
based
of a
would
jury.
tiffs harm
reach the
We do not think that the
trilogy
reading
of
of them. Our
supports
decisions
trilogy
the Kimbler
leg
treatment of
this case should
511 n
dispel any lingering doubts on
score.”
voluntarily doing want to contract If it. the two party that part for an accident do, of one they fault on the doesn’t create that employment ceases. after the occurs particular defendant is liable for the harm. For plaintiffs Phi, in Weiner v. Gamma instance, Frat., ATO (1971), 458 P2d was plaintiff while injured a riding driven, vehicle being behalf of a by an intoxi- fraternity, cated minor a after fraternity party. Kienow, member of the fraternity, knew the that party minors would be attending. Nonetheless, he purchased alcoholic beverages for purpose of making them availаble to the and had them party delivered to the location where the party towas be held. court declined to impose liability as to him, pointing out: then, “Considering allegations complaint as
they apply Kienow, it is our opinion they are not express duty plaintiff sufficient a breach of this ‘Duty’ case. use it is, sense we here Prosser as has it, expression described ‘an of the sum total of those consid- erations of policy lead the law to say particular that the protection.’ Prosser, is entitled to Law of Torts (3rd 1964). We are problem faced with such a of policy formulation in this case. indicated,
“As already we have may there he circum- stances under which a person allowing could held liable for another to become dangerously However, intoxicated. we feel should not be extended to one who acts as a conduit in providing alcohol directly to those who serve it to A has a serving others. host choice of alcohol to whomsoever pleases. choice, he he making may to serve the decide alcohol under illegally circumstances which create an unreasonable risk harm to others. We do not that the think harmful consequence of that choice should be visited upon nо part making another who has it. And we take this view supplying might even where the one alcohol have reason to believe that the host is to make an unwise choice in likely
“ * * * * really getting duty “What I’m at is no breach because Matt Theurer there’s controlling destiny. duty him own We have to watch out his didn’t he work. after left “ * * * * you might act where we take where have some affirmative “There are some cases wrong, liability. something clearly step and I think that creates that’s do law, agrees straight to work 36 hours Under I don’t think if he the common it, (Emphasis supplied.) liability.” say, okay, there’s we he do I don’t think can theory making policy argument law Clearly, under common defendant was negligent employers under these circumstances. not be considered should *23 it to dispensing complaint allege others. The does not Kienow any dispensation had control over the direct hold, therefore, alcohol that the to party. at We demurrer complaint insofar it relates as to Kienow was at properly sustained.” 258 Or 640. policy
Thus, the task this court is to evaluate the imposition considerations that underlie the my those assessment, defendant’s conduct. considerations holding as a dictate matter of law that conduct accepted it at the time that Theurer’s оffer to work was not It was Theurer’s to unreasonable. choice to volunteer work April part 5. Defendant had no in that other than to choice reject opportunity him to Moreover, extend the work. to required predict manager Theurer’s would have offer physical days in what several advance Theurer’s state would April disregarding promise be on rest that he would Theurer’s majority shifts. Neither the nor can between precedent cognizable point that establishes a commu- requires nity employer of care an to not take standard employees adult word its their under such circumstances. majority says, much The “defendant was like bartender beverages visibly person alcoholic to a intoxicated who served who then caused an automobile accident that harmed App comparison. inapt another.” 133 Or at 526-27. That is an Oregon proprietors will be of fast food restaurants employee scheduling surprised to work an to learn that legal it same he carries with extra shift after volunteers serving consequences alcoholic hazard of as inherent patron. legal responsibility beverages intoxicated to an employee physical of an condition the future determine necessarily pеrform in the lies with task future volunteered employee can control his activities he, since he, Additionally, fatigue time. at that to avoid excessive scheduling employers, majority’s holding in their deci- makes employees’ anticipating off- responsible their what sions, responsibility of premises work; a will be after activities example proportions. to con- implications An enormous every employment employee time Every at some sider: including working, fatigue the members of experiences while determined work schedule is our Inasmuch as this court. days docket advance, how would approximately reasonably anticipate ability coordinator safely our to drive home day after a next month? law
Common has as its traditional, source community well established standards of As I care. have pointed plaintiffs theory out, based on the violation of apart Moreover, such a standard. standards of common *24 negligence, opinion majority law if the from a arises value judgment employers when whom about and to should be responsible employees’ negligence, their off-work for then it authority policy has to no make that kind of social decision. determining responsibility The task of that kind of tort allowing employees properly to work left overtime to the legislature. summary, majority opinion’s adherence to a
“general foreseeability” grave consequences test results employers improperly of this state. It articulates com- negligence employers mon law standard causes to be exposed previously unrecognized liability hereto for the negligence employees premises of their off the work requires protect any them to lack those who involvement with activity away prem- defendant’s work miles from the work opinion says Oregon employers, ises. In effect, the “Do not your employees fatigue, schedule in a manner that will cause you you do, because if risk the event your employee negligent off-premises acts in a manner law after work.” That is not the of this state and it cannot employer accept conduct unreasonable for an offer employee, days shift, from an adult made advance of safety overtime, work insofar as the is concerned motorists gets majority employee opin- after the off work. Because the duty general public ion extends the of care owed to the employers scheduling employees’ in the oftheir work shifts to beyond boundary, I reasonable dissent. join Muniz,
Richardson, JJ., De this Deits and dissent.