*1 20, Argued January judgment and submitted of dismissal of the circuit court and the 30, Appeals August decision of the Court of affirmed reconsideration denied 29,1988 September
FUHRER, Review, Petitioner on v. SEA, INC., al,
GEARHART BY THE et Respondents on Review.
(TC 84-181; S34460) A33304; CA SC
Elden Portland, M. argued the cause and filed petition petitioner for on review.
435-b Earle, Hallmark, William G. Griffith Keating, P.C., & Portland, argued the cause and filed briefs for respondent review Gearhart By Sea, Inc. Grimms,
Linda DeVries Attorney General, Assistant Salem, argued the cause for respondent on Department review Transportation. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia Linder, L. Solic- General, itor Salem.
LENT, J. Jones, J., specially concurred and filed an opinion in which Gillette, J., joined.
436
LENT, J. ultimate
The issue is whether
has stated
against
claim for relief
defen
facts sufficient
to constitute a
decedent
plaintiffs
for defendants’ failure to warn
dants
the
of
surf and for defendants’
others of
hazards
the ocean
provide safety
protect against
to
measures to
those
failure
(Gearhart)
By
Sea,
the
Inc.
hazards.1 Defendant Gearhart
duty”
it
to warn
theory
moved to dismiss on the
“owed no
Defen
premises.
from hazards not located on its
(the
Oregon
of
Department
Transportation,
dant
of
State
state),
theory
on
state has no
moved to dismiss
the
the
public
and no
property
to warn of natural conditions
circuit
protect against
natural conditions. The
court
The
Appeals
Court of
granted both motions
dismiss.
Sea, Inc.,
By
v. Gearhart
The
affirmed
dismissals. Fuhrer
(1986).
to the
App 550,
Or
This comes to us on ORCP Rule motions case for sufficient to con- to dismiss failure state ultimate facts alle- well-pleaded a claim. These motions admit stitute only and we determine gations complaint, of fact a claim. those facts are sufficient to constitute whether complaint. The following are at defendant paying guest Plaintiffs decedent was a The an ocean beach adjacent Gearhart’s resort. hotel The over beach jurisdiction state. state had owned 390.635. pursuant ORS beach, some children
While on the decedent saw Sea, Inc.; By Depart complaint The The named three defendants: Gearhart County Oregon; Clatsop County. Clatsop Transportation, is no ment of State of remaining longer party; unless are to the defendants references to defendants specified. otherwise *5 surf, struggling apparently caught in the ocean in an under- tow, riptide adja- or other hazardous condition of the waters parents cent to the beach. The children and their were also paying guests attempted at the resort. Decedent and others by save the The efforts of children. children were saved rescuers, decedent and the other but decedent died from drowning by or cardiac arrest caused his rescue efforts.
Gearhart did not its guests dangerous warn undertow, riptide or other hazardous conditions of the surf. It did not provide lifeguards, lifesaving equipment warning or flags. It also did not rescue or aid the rescue of decedent or the warn, children. The state lifeguards likewise did not duty provide or lifesaving equipment warning flags. or Plain- alleged tiff that decedent’s death was the result of defendants’ provide failure to warn or safety measures.
To determine plaintiff whether has stated ultimate claim, sufficient to constitute a we first determine what is the law concerning a failure to warn or a provide failure to safety measures. We shall refer to the failure supply safety various measures a protect. as failure to traditionally law has been that a defendant liable for a failure to warn protect only or if the defendant had a “duty” to warn protect. This court concept discussed the of duty negligence Fazzolari, in cases in Kimbler and Donaca. cases, In those we held concept duty that the always was not a useful analyze tool with which to negligence. common-law may There specific statute, be duties established status or relationship, but the absence of such duties does not a insulate liability. defendant from In duty the absence of a arising from a kind, source of that a may defendant be liable for conduct which is unreasonable in the circumstances if that conduct results in harm to a and the risk of harm to the plaintiff or the class of persons plaintiff belongs to whom the was foreseeable.
In determine this we must whether the ana lytical Fazzolari, approach of Kimbler and Donaca should be used negligence when the is a pro failure warn or tect. The answer to that is clear. Fazzolari and Donaca involved a failure to provide protection, warn or and Kimbler involved failure appropriate safety to take measures. In each analyzed we held that the facts determine should be negligence the risk of harm was Whether whether foreseeable. negligent taking or the of no the commission of a act involves action when the lack of action creates a foreseeable unreason- analysis harm, should the same. able risk be analyzed Failure to should be warn foreseeability specific If a terms of and unreasonable conduct. duty relationship, imposed statute, affirmative status or appropriate. analysis specific duty is also As based on that Fazzolari, the difference between a traditional noted analysis only analysis foreseeability may In and a be semantic. “duty” terms, a to have defendant found protected another of an undue risk of harm to a interest *6 the of other if the knows of the risk. See discus the defendant (5th 1984), Keeton, ed Prosser and The of Torts sion of Law (2d 1986), Harper, Gray, ed in James The Law of Torts and & specific duty Fazzolari, to 303 Or at If the defendant has a 9. may plaintiff, the also liable without knowl the defendant that be particular depends edge duty. risk; on the of the of the terms duty, “duty” a in an the existence of Absent affirmative given reached, a to be not a the circumstances is conclusion analysis. means of Fazzolari,
In
stated that the issue was “whether
we
unreasonably
pro
a
risk
created foreseeable
to a
that conduct
plaintiff.”
harm
the
interest of
kind of
that befell
tected
the
Appeals’
The
of
decision on remand in this
A defendant sonably harm, risk of a is an unreasonable foresee that there warn of the defendant’s would position person reasonable of the risk, has a reasonable chance to warn defendant the the risk, the risk, not warn of the the does defendant a result of the failure warn. injured is as consid frequently prevented juries from Courts question, a ering person whether reasonable second risk, by deciding either position would warn defendant’s a had warn. There the defendant had no that whether determining be considered in are four factors to harm, failure to act is reasonable: the likelihood action or a harm, the “cost” of action that severity possible harm,2 position, including defendant’s prevent would relationship plaintiff. with the defendant’s determination this a argued It has been is O’Connell, Oregon make. See on courts should Ruminations Law, (1988). However, Negligence 24 Willamette L J this system has led a approach of classification based sim analysis ilarities cases than previous rather an based on the facts of each case. If there particular relationship is between statute, parties, obligation may imposed by contract specific obligation or court-made law. If no is law imposed contract, the factfinder should determine whether action required by and, so, is if parties relationship what is if required. action Even there is no between the relationship if the risk parties, great, magnitude, either likelihood or minimal, and the cost the reasonableness of the action *7 by should be determined the factfinder. Gearhart, alleges innkeeper
Plaintiff that as an land, its possessor paying guests of should have warned not dangers Although of the ocean surf. Gearhart did danger may apparent have been danger, decedent of If struggling he in the surf. decedent when saw children so, is a not have made decedent more warning that would did warn decedent not danger, aware of the and the failure to he had been expose any him to risk of harm than if greater this, However, might and decedent warned. we do not know of rescue if he had been have chosen other means warned 2 Time, defendant are “Cost” than economic cost. effort risk to includes more considerations, monetary although primary also the reason cost affect taking ableness of action. 440 A trier fact could find
if other means had been available. of could have made a difference. warning were also paying The children who were rescued a failure to A trier of fact could find that guests of Gearhart. expose the children to parents warn the children or their did foreseeable, under most danger of the surf. If a danger one, circumstances, attempted an rescue is fore including this Keeton, The Law of Torts 307-309 seeable. See Prosser and (5th 1984), therein. The failure to warn the ed and cases cited risk of have created a foreseeable unreasonable children could concept of harm to decedent as a rescuer. Inherent may disregard knows of the risk but rescue is that the rescuer rescue; therefore, might to effect the Gearhart the risk parents if the failure to warn the children or their were liable negligence. law, innkeepers, as a matter of argues
Gearhart prop- warn of risks not located on are not liable for failure to innkeeper. The traditional erty owned or controlled in this situation is stated duty innkeeper view of the (Second) c to 314A of the Restatement Comment section Torts: duty
“A
left the vehicle
carrier is under no
to one who has
duty
innkeeper under a
passenger,
ceased to be a
nor is an
away
guest
injured
endangered
while he is
from
to a
who
premises.
possessor
any such
Nor is a
of land under
invitee.”
one who has ceased to be an
rule,
had no affirmative
Under the traditional
Gearhart
concerning any
away
hazard
from Gearhart’s
guests
its
rule is no
univer
premises. Support
longer
for the traditional
duty on
imposed
sal.
an affirmative
jurisdictions
Some
invitees of known
possessors
property
to warn business
Hyatt
v.
immediately adjacent
premises.
to the
Banks
dangers
(5th
1984);
v.
214,
F2d
reh
731 F2d 888
Cir
Ollar
Corp., 722
den
Place,
488,
(1980);
v.
Ark
In a
held, as a
1987),
Wyoming Supreme
Court
(Wyo
law,
operators
that the
of a
theater owed to its
matter of
movie
duty
“an affirmative
to exercise reasonable or
paying guests
safety
for their
which includes an
ordinary
obligation
care
off-premises
reasonably
danger
might
advise them of
foreseeable.”
We in specific holding have been too as a matter of law that duty pre an affirmative to warn in the situations there was innkeepers sented in those cases. The duties of and other operators guests of commercial establishments to their are to them harm” “protect against physical unreasonable risk of (Sec they and to aid them if are ill or Restatement injured. ond) Traditionally they of Torts 314A. include an affirma § duty dangerous tive to warn of premises conditions on obvious, are we duty not but do not extend the to warn of all possible dangers premises off the as a matter of law safety provide equipment protect against off-premises haz It the role of the trier it ards. of fact to determine whether not to of a danger provide unreasonable or otherwise protection specific circumstances of each case. Innkeepers possessors of land have an affirmative of foreseeable unreason paying guests warn their invitees harm; a dan physical able risks of when the risk involves off the the trier of fact must decide gerous premises, condition in all the circum the reasonableness of the failure to warn stances. no in the com present allegation
In the there is dan have known of the plaint that Gearhart knew or should of a knowledge surf. Without gerous condition of the ocean condition, condition or reason to know dangerous risk of an unreasonable Gearhart could not have foreseen all the facts prove harm. If were able to proved one element plaintiff would still not complaint, foreseeability necessary recovery, to defendant of an position. persons plaintiffs harm to unreasonable risk of Even if Gearhart reasonable had an affirmative to take *9 only steps protect, to warn would extend to warn and the plaintiff might risks. Because and from knowable prove alleged recover, and still not be entitled all the facts complaint properly dismissed. the was alleged state, the as owner of has also that
Plaintiff protect. similarly or beach, for failure to warn the was liable argued natural conditions it cannot be liable for The state that public undeveloped unimproved land. Even if this on argument could liable for correct, state admits that it is protect from, of, natural conditions failure to warn developed or public improved land, deter and it cannot be stage proceedings which kind of land is this of the the mined at involved. complaint allegations Accepting facts, as analysis dismiss, the com as we must on a motion analysis plaint against same as the of the the state is the allegation complaint against is no Because there Gearhart. of, of, had reason to know the the state was aware complaint dangerous condition, failed to state ulti has a claim.3 mate facts sufficient to constitute judgment of the circuit court and the of dismissal Appeals are affirmed. of the Court of decision concurring. specially J., JONES, in the result. I concur Fazzolari, Donaca discus- Kimbler and Without — — express opinion plaintiff, in order I no
sion as to which plead action, must at minimum to state a cause of By should have known The Sea knew or Gearhart particularly dangerous surf. Without condition of the ocean warn, parties. opinion did the briefs of the on the failure to as This concentrates provide safety as the measured the same standard measures is The failure to any determining the reasonableness of warn. One factor standard used for failure to warning taking opportunity action. Nor and cost of failure to warn or act is costly, safety mally, providing make a failure to act and the cost measures more reasonable; otherwise, analysis warn would not be reasonable when a failure to has not no different. Because the two situations should be theory, against either defendant on a failure to warn a claim sufficient to constitute safety theory. provide complaint measures also fails on a failure plaintiffs complaint patently allegation, flawed such insufficient. joins specially concurring opinion. J.,
Gillette, in this