*1 July 6, Argued and submitted reversed and remanded proceedings 4,1983 for further October et al, NEARING Review, Petitioners et al, WEAVER Respondents on Review.
(TC A22918; 29424) 26761; CA SC
Simon the cause and review. him on the were Ruth petitioners With brief Gundle, Portland, Oregon Legal Corp. Services Burris, Portland,
Christopher argued E. the cause and filed him on review. on the brief were respondents brief With Kester, Crowe, Gidley P. & Cosgrave, David Morrison Portland. Lagesen,
LINDE, J. Jones, J., opinion. filed a concurring Peterson, J., opinion Camp- filed a dissenting C. in which bell, J. joins.
703-b *4 704
LINDE, J. Legislative Assembly
In enacted “Abuse persons strengthen legal protection Act” to Prevention spouse former or a present with assault a or threatened Or Laws ch 845. The means chosen for this cohabitant. 1977 orders, temporary restraining use of purpose included the orders, injunctions, custody child former ORS temporary and 107.716, (1979), mandatory provisions now and 107.715 ORS person a probable cause of upon the warrantless arrest 133.310(3).1 The to have violated such an order. ORS believed who know- present requires case us to decide whether officers order under the 1977 act are ingly judicial fail to enforce a psychic phys- harm to the and potentially resulting liable for order, of the judicial ical health of the intended beneficiaries immunity. discretion and official We over defenses of official liability. preclude potential do not hold that these defenses appeal case from the circuit court’s sum- The defendants, affirmed the Court mary judgment basis for its Appeals explain The Court of did Appeals. decision. following Plaintiffs complaint alleged the facts.
The children, and Nearing are Henrietta and her two Robert Jeanette, years Nearing 4 and old. Henrietta respectively 16, April her On separated from husband in November 1979. permission home without the husband entered 133.310(3): ORS peace custody person into without warrant “A officer shall arrest take peace probable that: officer has cause believe when (l)(c) (d), “(a) pursuant to ORS 107.095 or There exists an order issued person; restraining 107.716 107.718 “(b) copy proof person A has been filed of the order and of service on true 107.720; required in ORS as “(c) probable person peace to be officer has cause to believe that has of that order.” arrested violated the terms at the scene of domestic mandates arrests when an officer Another section person probable that one has assaulted another disturbance has cause to believe 133.055(2). physical injury. placed If the ORS other in fear of imminent serious case, may present pleaded have one of the defendant officers facts occurred restraining under section with arrests enforce “on the scene” arrests confused 133.310(3). order under ORS
705 reported and struck Henrietta. She this to one of the defen- officers, Weaver, dant police causing Martin her to be husband charged day arrested and with assault. The next the circuit court issued an order from restraining molesting husband plaintiffs entering family home. on The order was served husband, and a copy proof of the order and of service were police department delivered to the City defendant of St. Helens.2 13, May 1980,
On 12 and again husband entered plaintiffs’ home permission, without first damaging prem- ises, and thereafter attempting to remove the children. Henrietta Nearing reported these incidents to defendant Weaver and asked him to arrest her husband because she was frightened of his proclivities. violent The officer confirmed the validity of the restraining order and the damage plaintiffs’ home but declined to arrest the husband on the ground that the officer had not seen the husband on premises. subsequent
On three 1980, occasions in May, the hus- band returned to address, sought entry home, to the and on the last occasion assaulted Henrietta’s friend and damaged his van. When Henrietta reported this to defendants Weaver and May 27,1980, Sauls on Weaver told her that the St. Helen’s police would arrest the husband for violating the restraining order “because it was Nearing Robert Lee Sr.’s sec- offense,” ond but no such action days later, was taken. Two 29, May Nearing, husband, Henrietta’s telephoned her and threatened to kill her 1, friend. On June Nearing intercepted required by act, This was as amended 1979 Or Laws ch 522: “(1) order, restraining (c) (d) by paragraph Whenever a as authorized (1) subsection of ORS 107.095 or ORS 107.715 which includes bail and an expiration pursuant section, person date to ORS 107.715 and this is issued and the thereof, petitioner
to be restrained has actual notice shall deliver forthwith to agency proof copy respondent a law enforcement a true of service on the and a copy Upon receipt copy proof true of the order. of a true of service and a true copy order, agency the law enforcement shall forthwith enter the order into System Department. the Law Enforcement Data maintained the Executive Entry System into the Law Enforcement Data shall constitute notice to all law agencies agencies enforcement of the existence of such order. Law enforcement procedures adequate shall establish to insure that an officer at the scene of an alleged may violation such order be informed of the existence and terms of such fully any county order. Such order shall be enforceable in the state.” 107.720(1) (1979). case, ORS After the events the statute was amended Or Laws ch 780 and 1983 Or § Laws ch 3. home, repeated
the friend and front threat, and assaulted the friend. complaint alleges the defendant officers’ knowl- “proxi- It alleges of the relevant facts. further
edge husband, of their failure refusal to arrest her mate result”3 physical Henrietta has suffered “severe emotional distress and complaint and that the chil- injuries” further described in the distress,” “acute have been dren have suffered emotional difficulty “upset,” sleeping, “psy- have had and have suffered chological impairment.” allegations except for the iden-
Defendants denied the *6 pleaded and of and affirmative defenses tity status defendants moved to strike the immunity and discretion. Plaintiffs defenses and denial of the motion error assigned affirmative appeal. on first contention in the circuit court and
Defendants’ plaintiffs’ damages is for the appeal on is that action one distress, Oregon law negligent infliction of emotional that theory. on counter that recovery does allow this Plaintiffs psychic or Oregon recovery damages does allow emo- law infringes legal when conduct some tional harm defendant’s ordinary of an claim for right plaintiff independent of the tort cases, right. Plaintiffs are In a recent review of the negligence. we stated: psychic or
“If causes of action for emotional there few such, objections mone- found in harm as the reason not may be tary damages nature. The reason for harm that loss, focusing, but by found not on the nature of the liability. court scope of the defendant’s This source recognized psychic injury law alone has when common equiv- conduct was either intentional defendant’s responsible feelings in rela- alently reckless another’s infringed legallyprotected interest tionship, when it some distress, negli- apart causing the claimed even when from gently.” practice repeating reaching familiar old Cases court show that motions, pleadings, the court’s survives unaffected or instructions formulas tort law. See “proximate Oregon repeated cause” is not an element reminders 19, (1982); Presby. Hosp., 543,
Norwest v.
Mooney
Intercomm.
560 & n.
P2d 318
293 Or
Cattle,
709, 718
10,
(1981).
n.
The question, plaintiffs pleaded is whether an infringement legal right indepen- defendants of a arising dently ordinary tort a negligence elements of action. It is clear that plaintiff did so. complaint alleges that,
The facts if proved, obliged the St. police respond Helens officers to call for protection against the exact kind of harassment the elder Robert Nearing occurred, is said to have alleges and it that the officers refused to enforce the restraining order in the manner prescribed by The duty law. defendants are alleged to neglected have ordinary therefore is not an duty common law of due predictable care to avoid harm to another. It a specific duty imposed by statute for the pre- benefit of individuals viously identified a judicial order. parties in the gave circuit court most attention to City
Brennen v.
Eugene,
(1979).
is
781,
(1977),
277 Or
708 fleeing father, to order the client from prevent
child his to father held to a claim country with the child. The have lawyer comply to with the anguish for mental when failed order and the took the child abroad. Because mother McEvoy, duty case, in this as in were sources of defendants’ designed protect type of harm which plaintiffs against to occurred, it is no that claim is for allegedly plaintiffs defense psychic injuries. and emotional their to as as explaining
In claim the trial court well defen- appeal, plaintiffs type on described it as of action for duty, as Brennen perform dant’s failure to their negligent McEvoy, or “negligent” “negligence” the words though nor in the This invited complaint.5 neither were had to be used of confusion insofar as there no cause action possible purely injury or emotional negligent psychic infliction of duty such, specific more unsupported by a violation of some plaintiff. duty specifically toward In this case a towards plaintiffs the court coupled these arises from the statute with course, action may plead argue order. A plaintiff, of statutory theory negligence both under a of and under another chooses; law if he or so based on theory or common she actions familiar products are a When injuries example. from defective require the same result separate legal theories said to facts, that contention be made clear. alleged the same should case, adequacy In this the issue below was defenses; objection plaintiff to s com defendants’ no raised in this case plaint. “negligence” And reference liability, “negligence” if is used alleged was immaterial to the in the or “failure to use due care” sense “carelessness” totem, merely as a conventional because legal rather than acted, failed if defendants had or result would be different act, willfully with other state intentionally some allegation “negli be role mind. It must recalled what law terms ordinary general in an common case. In gence” plays cause to take reasonable care not to that role is to invoke class type a risk a foreseeable of harm a foreseeable risk, harm, potential plaintiff and the plaintiffs. Here the pleader recently Oregon require state ultimate facts We noted rules “the (in relief,” A., pleading constituting a form of action ORCP rather than a claim Industries, Inc., Tyee case, Davis v. assumpsit”). “common counts (1983). *8 and, McEvoy and in this by all foreseen the lawmaker were Brennen, to the clerk in case, a court. It was not left by a possi- McEvoy, or the officers in this case to foresee lawyer to “due opinion as what risk and to form a “reasonable” ble hoc judgments avoid it. Such ad might required care” be to when it meant to overcome exactly legislature what orders. obligation judicial enacted the to enforce obligation creates abso This does not mean that may There be various resulting lute harm. faith defenses, good defendant made a for instance that doing by from so perform, prevented effort to or that he was obstacle, The officer legal. one or another either factual or liable, instance, make an uncon failing would not be to a defense under the stat stitutional arrest. Whatever would be liability. But such defenses differ from ute is a defense to civil failing perform duty legislature claim that to created nothing harm court orders is other prevent enforcing that lia large than a lack of due care toward the world at psychic therefore extends but not bility physical actually emotional caused that failure. injuries McEvoy order here differed from that in because The than to defendants. it was addressed to the husband rather clearly to a of defendants toward gave Nonetheless it rise 133.310(3) prescribes under the 1977 act. ORS custody person peace that a officer “shall arrest and take into probable without a warrant” when the officer has cause the statute has been served and believe that an order under (3) the order. Subsection person filed and that the has violated “may” state when an officer appears after two subsections that warrant, use of contrasting and the person arrest without (3) widespread “shall” in is no accident. subsection persons remove involved police refusal or failure of officers to legisla- to the episodes presented of domestic violence was tightening require the law so as to ture as the main reason for by mandatory arrest and restraining enforcement of orders be person arrested is entitled to custody. though Even charge a criminal adjudication an eventual pending released 107.720(3), removal was temporary contempt, ORS the court’s the seriousness of emphasize deemed essential escape violence to further permit order and to the victims of danger. immediate that an officer’s determination argue
Defendants has occurred is a to believe that a violation probable cause immune from under “discretionary duty” function or 30.265(3) (c).6 Mag McBride v. This claim is answered ORS *9 (1978). police nuson, 433, P2d 1259 In that case 282 Or 578 take a child into immunity for her decision to officer claimed held of child abuse. This court custody report and to make a “discretionary in a employee engaged is not that an officer or act he she must evaluate and duty” or whenever or function Discretion, stated, exists we judgment. a factual upon for value delegated responsibility as an officer has been insofar competing goals prio and among and choices policy judgments 133.310(3) negate to of ORS Patently purpose the rities.7 restraining orders enforcing that kind in any discretion of This conclusion does the Abuse Prevention Act. issued under The circuit court facts in the individual case. depend not to strike this defense. motion denying plaintiffs erred in immunity by virtue of ORS also claim Defendants be held peace officer shall 133.315, provides which “[n]o to making pursuant for an arrest criminally civilly or liable 133.055(2) 133.310(3) good in faith provided he acts or ORS 6 30.265(3) (1979): ORS “(3) officers, employes agents acting Every public body within and its and duties, operating employment
scope
a motor vehicle
or while
of their
or
276.598,
ridesharing arrangement
immune from
ORS
authorized under
liability for:
“(c)
performance
Any
upon
failure to exercise or
of or the
claim based
discretionary
duty,
abused.”
perform
the discretion is
function or
whether or not
But not
others
depends
[7]
involves
explicit
objectives
561
45 ALR3d 857
v. Union
“Many
determining
responsibility
delegated
P2d 1019
particular
must
on the
‘room for
every
officers or
High
will be served
implicit
frequently
responsibility
(1977).”
(1970), quoting
exercise of
School Dist. No.
officer.
how or whether the act
kind of
policy judgment,’
in the statute’ and for
employees carrying
deciding
assess facts and choose
judgments
Discretion,
by given
judgment
for ‘assessment
Dalehite v. United
‘the
2,
for which
130 Or
adaptation
as this
Smith v.
action,
and choice is the exercise
shall be done or the course
out
461, 469,
the functions entrusted to
Dickinson
court has noted
Cooper,
responsibility
judgment
how to act or not to act
of means to an
ranking
States,
This actually par- the issues raised ties. We add following response assertions introduced the dissent.
1. The dissent
that we
asserts
“overrule” two cases
in which the court declined to find defendants liable for injury
resulting
alleged
contrary
statutes,
from
conduct
Bob God
frey
Roloff,
Pontiac v.
(1981),
Or
Neither was cited defendants. Neither case *10 holds that statutory duties give never rise civil liability to unless the legislature makes that intention in the explicit text or accompanying explanations.8 We do not overrule either passed individual intention to allow to withhold the made “It would, long for their benefit to recover ago statute, course, in the House of than be desirable if by enacting Lords, legislatures right in tones damages some of those general mixing resignation from the were to injured formula. indicate violator, by That violations of statutes their with frustration: suggestion if not in each “ person legislation may ‘To in science unversed the or art of it well strange explicitly seem that Parliament not now it rule to state has made a importance, what is in its intention a matter which is often of no little instead discover, by leaving analysis the it to courts to a careful examination said, expressly may supposed probably what is what intention be that to be. legislature revealing There are no doubt reasons inhibit the from which its know, plain speculate, intention in words. I do not must not what those trust, may however, thought impertinent, I reasons be. it will that not be word, any respectfully suggest responsible sense of that to that those who are framing legislation might practice, consider whether the which traditional obscures, conceal, has, maybe if it does not intention which Parliament have,
presumed
might
safely be
to
not
abandoned...’
supra 76 L A
“Cutler v. Wandsworth Stadium Ltd.
Rev
at 256.”
[1949]
A.C.
410,
quoted
Fricke,
Godfrey
Roloff, supra,
(concurring opinion).
Bob
Pontiac v.
at 341
Or
(1982),
Laboratories,
213, 219,
In Oksenholt v. Lederle
2. It is meaning. not of uncertain That is a word liability. “strict” it clear that the have made fault. We liability without standard governing absolute; defenses. may there be is not .9 If a stat statute, this decision by the is set of conduct care, is the due to exercise merely its addressee calls on ute exer than the more of officers This statute demands standard. requests respond whether judgment of reasonable cise respond. they orders; it mandates court enforce known of the statute. point is the That plaintiffs did not asserts that
3. The dissent contrary, plaintiffs’ statute. To make claim based *11 “First, protected by physicians within class intended be second, regulation; provide adequate regulation does civil exclusive or third, remedy injured remedy; physican will a civil for as well as for an patient purpose regulation?” further the opinion concurring in the The reference to a defense that defendant “acted theory reasonably apply negligence could to the there under circumstances” discussed, statutory duty has What to the issue whether been observed. noncompliance statutory compliance matter constitutes or excusable is a inter may pretation; compliance noncompliance an issue whether the occurred be fact. the circuit court and a argument covered both common law statutory theory.10 At simply opposes
4. bottom the dissent tort lia bility caused injuries disregard policy of the statute on grounds, may because it cost local governments money. To First, that there are argument two answers. the same can be against no doubt was made all claims under the Tort opposition summary judg Plaintiffs’ trial memorandum in to the motion argued: ment IS “PLAINTIFFS’CLAIM BASEDUPONDEFENDANTS’NEGLIGENT
PERFORMANCE OF THEIR STATUTORY DUTY TO ENFORCE RESTRAININGORDERS summary judgment theory “Defendant’s motion for misconstrues the plaintiffs’ Nearing seeking damages case. Ms. and her children are not for the negligent Rather, complaint or intentional infliction of emotional distress. her statutory duty founded on the breach of the owed her Officers Weaver and unequivocal obligation Sauls. These defendants had an to arrest violators of pursuant 133.310(3).” restraining requirements orders to the of ORS “PLAINTIFFS’ CLAIM IS ALTERNATIVELY BASED A UPON SPECIALDUTY Nearing negligence alternatively “Ms. and her children’s claim of can be premised special duty relationship on the owed her her virtue of with the St. Department.” Helens Police argument motion, argued: At oral defendants Summary Judgment “... first thrust of defendant’s Motion for [t]he is that what dealing negligent we’re with here is a claim relief for infliction of emotional distress....” argued police .. The have fact the officers here violated Mrs. — Nearing’s legal right arrested, Nearing they to have Mr. cite the statute Oregon designed protect statute which was to decrease domestic violence to spouses especially....” battered replied: Plaintiffs completely theory “The defendant’s motion misconstrues the... in this case. upon negligent
The case is not based distress, either or intentional of emotional infliction upon statutory duty part police it rather is based on the officers to restraining pursuent 133.310, arrest violators of orders to ORS Sub. 3. [sic] construing important “I think also the cause of action it’s to look at the seven, complaint, particularly paragraphs eight and nine where we’ve children, pleaded restraining Nearing that a order was obtained Mrs. and her — copy Nearing that it was served on the and that a on Mr. both Proof So, City restraining Service and the order was delivered to the defendant Police. very proceeding it’s clear that we’re under the statute....” *12 a Act, is but the act was nevertheless enacted. This Claims private under the Tort Claims Act. If a defendant would claim mandatory out carry liable for harm caused failure to be by a court duty specific person protected for the benefit of a Helikson, McEvoy v. order, Act supra, the Tort Claims as pol- manner. That public makes a defendant liable the same policy not new icy legislature; decision was made it is be made in this case. choice to if liability is in fact no
The second answer is that there open-ended invitation statute is followed. There is here no policies. juries local second-guess to turn courts loose lia- only negligence all can be might That be true if care,” argue. But for lack “due the dissent seems to bility as unavoidable statutory duty is to create such plain here the too statute, unless liability. When with the compliance risks cause, exposure liability, by good will avoid prevented liability because of the that there should be no argument actually argument privilege for a not expense potential choice, policy policy like the comply with the statute. But that Act, legislature. Claims also has been settled of the Tort arguments The court’s letter order and the circuit persuaded show that the court was as made to that court plaintiff psychic law that could not recover matter of injuries, physical distinct that injuries emotional as from inaction defendants. have resulted from the same might Helikson, McEvoy supra, here, there was Because as proposition incor- plaintiffs, toward these specific affirming sum- Appeals The decision of the Court rect. remanded to the mary must be reversed and the case judgment proceedings. circuit court for further Reversed and remanded. J.,
JONES, concurring. opin- the majority counsel first read When at Christ- like the child case, they probably in this feel ion will bear, teddy but Claus for a stuffed mas who asked Santa more than They a real live cub. received much instead received awkward, may prove to be they gift and the requested dangerous. but also solely for a claim of relief based plaintiffs prayed
The “statutory claim of relief called they received a negligence; on “statutory speculative may of a tort” are tort.” results instance, always harsh. is “discretion” eliminated as a be For comparative totally fault Is a innocent apply? defense? Does To precedent act actionable? what are we cited for direction? the following proof I submit based action ask solely negligence their cause of on and did not any theory. petition In impose court other their review, plaintiffs assert: Physical Injury “A. Alleged Accompanying Plaintiffs Have *13 their Mental Distress and are Entitled to Recover Damages Under the ‘Traditional Rule.’ “Oregon majority jurisdictions pro- and the of American negligence vide of a cause action for mental when distress * * * accompanied by subsequent physical injury. i(* * * * * Court, Recovery
“B. Under of Decisions This of Damages for Mental Distress is Defen- Allowed Where a Infringes upon Independent Legal dant’s Conduct Right of Plaintiff. complaint
“Plaintiffs’ also states a of under a cause action major recognized Oregon. second doctrine It is well settled negligent that where a defendant’s conduct causes emotional distress, and where same conduct constitutes infringement legal right plaintiff, of a of damages for the pre- distress are physical injury recoverable whether or not ' sent. [Citations omitted.] “* * * negligent performance Defendants’ of their duties plaintiffs’ under indepen- the Abuse Act Prevention violated legal right police dent protection, plaintiffs to enhanced may recover for the (Emphasis mental distress suffered.” added.) plaintiffs’ pleading
The negligence, also sounds in claiming $143,000 general proximate damages as a result of defendants’ failure and Nearing, refusal to arrest Robert Lee Sr. court, argument
In before the trial specifi- the court cally plaintiffs’ asked this question: counsel Hatton, “THE COURT: Mr. I’m sure I If not understand.
you’re basing this cause of action on the violation of the stat- you utory duty, claiming they negligently inten- tionally violated statute? negligence, That it was Your Honor.
“MR. HATTON: still “THE Then the cause of action sounds of COURT: negligence? They Yes. violated their common law
“MR. HATTON: statutory duty carrying duty.” their due care out to exercise interjected: co-counsel then Plaintiffs’ try get I just I if could at wonder “MISS GUNDLE: explaining have misunderstood the difference. defendants negligent They it to be of action. have understood cause distress, It is which is cause action. infliction emotional cause distress. The negligent infliction of emotional * * *” added.) (Emphasis negligence. action is memorandum, assert: plaintiffs’ In the trial IS BASED UPON DEFEN- “PLAINTIFFS’ CLAIM OF THEIR PERFORMANCE DANTS’ NEGLIGENT RESTRAINING STATUTORY DUTY TO ENFORCE ORDERS” memorandum, plain-
Continuing with trial alternatively be negligence can that their “claim tiffs assert by virtue special duty on the owed premised [their] [them] They Department.” Police relationship with the St. Helens use relationship creating ‘special exists claim “there per- or classes of particular persons for the due care benefit ” sons.’ *14 trial memorandum with conclude their Plaintiffs soundly is claim based “[plaintiffs’ damage that statement negligence (Emphasis law.” principles upon well-recognized added.) recovery theory of tells us that
All of this theory and no other negligence based on has been “statutory notion any tort” Therefore, plaintiffs did not claim opin- majority in the recovery by Justice Linde as set forth ion. 318, 328-29, Roloff, 291 Or Godfrey Pontiac
In Bob
(1981),
stated:
this court
This is not a “doubtful case.” I believe a claim for negligent implicit legislation relief for failure in the to act is negligence per and a violation of this statute would be se. party When the evidence a establishes that has violated stat party producing ute, that, such has the burden of evidence acting reasonably. nevertheless, he was Without such evidence party negligent Williams, as a matter (1972). law. Barnum v. 71, 79, 504 P2d 122 present legal right, Plaintiffs in this case had a implied by protected by They statute, to be the defendants. may damages proven stress, recover mental whether accompanied by physical disability they prove not, if such damages were caused defendants’ violation of the statute. damages, The defendants will be liable to them for such unless prove by preponderance defendants can evidence that they acting reasonably were under the circumstances then and existing. negligence there All other relevant law would be applicable, including comparative if fault warranted facts. probably play remand,
On will it safe and pleadings proceed amend their on both theories: the first “statutory claim for tort,” relief based on and the second claim negligence implied by predict for relief based on I statute. probably develop, products future caselaw will liability as it has in the liability” gradually field where “strict claims are elim- inating negligence point claims, to the where we will have a “statutory replace new class of tort” claims which will the tra- “statutory negligence per ditional se” claims. by majority
I concur in the result reached because granted summary judgment. the trial court should not have dissenting. PETERSON, J., majority has, time, for the first created strict against public police employees tort bodies and their alleged neglected “[t]he because defendants are to have *15 * * * ordinary duty is not an common law of due care to avoid predictable specific duty imposed by harm to another. It is a
718 previously by for the of individuals identified a statute benefit dissent, at for reasons: order.” 295 Or 707.1 these judicial holding majority opinion 1. of is inconsis- The the court, which it tent with number of recent decisions this glance. passing overrules without a employees responsible 2. and their Public bodies pub- the many duties for the benefit of performance for the upon may depend those duties ability perform lic. Their availability of resources and including number factors tort Normally, liability of other mandated duties. demands requires showing putative guilty tortfeasor warily socially unreasonable conduct. We should tread before holding public employees bodies their liable without fault damages arising perform duty from the failure to 133.310(3). imposed ORS has party
3. this case ever contended that No fault, employees liable, should be without public bodies or their statutory duty ORS perform imposed failure 133.310(3). that any The utterance is the first time majority’s has or this doctrine been discussed considered strict theory recovery always has been negli- The case. own, case to one of majority On its has converted the gence. any party opportunity to allowing without strict proposition, pro or con. argue or discuss
I imposed violation of a contention that of action not known gives private right rise to a statute rejected law court common has been considered Bob Pontiac v. years. Godfrey times in the last five several (1981) P2d most recent case. Roloff, attorneys damages against involved claim for two It against plaintiff intentionally a false counterclaim filing defendants theory was that the an earlier case. The 9.460(4), states: they because violated ORS which were liable attorney “An shall: * * * *
<<$ “(4) purpose maintaining the causes Employ, for the truth, him, with such means as are consistent confided any jury by artifice never seek to mislead the court ** fact; *.” of law or false statement The trial court sustained defendants’ demurrer to plain- *16 tiffs second amended complaint granted summary and judg- ment in plaintiff defendants’ favor after filed third amended complaint. plaintiff’s On appeal, Appeals the Court of affirmed. Tongue, court,
Justice writing carefully for traced precedents our concerning statutory whether violation of a duty gives private rise to a new and cause of action for damages. I quote analysis: his helpful previous is by to review decisions in court
“[I]t contexts, deciding, duty different whether violation of a imposed by give private statute will rise to a cause of action. “In this court’s most question, recent discussion of this City Portland, 271, 604 Miller v. (1980), 288 Or P2d 1261 it (at 276-78) was noted that an initial distinction must be made (1) between cases in upon which would be based vio statutory duty lation of a when underlying there is also an action, (2) common law cause of cases in which upon would be based violation of a statute when there is no underlying common law cause of action.
“A
example
common
of a
type
case of the first
is an action
damages
negligence
in which it is contended that vio-
lation
imposed by
of a
negligence per
statute is
se in that
statutory duty
is the
reasonably
standard of conduct of a
prudent person, although the other elements of a cause of
negligence
action for
must still be shown. The test for deter-
mining whether violation of a statute
negligence
constitutes
Mar-Cam,
per
case,
se in such a
as stated in Stachniewicz v.
Corporation,
583, 586,
(1971),
(1)
259 Or
“In
approach
it is stated that
to be
taken
this court is
somewhat different
cases in which
underlying
there is no
common law cause of action and when
upon to,
effect,
the court is called
‘recognize’
‘create’ or
new tort.
“In
284 Or
“In another recent case this court also used a violation of a
statutory duty
as the
finding
basis for
under an exist-
ing
i.e.,
common law cause of
negligence,
negli-
action for
as
ConTeena,
Billy’s
Inc.,
se. See Davis v.
gence per
(1978) (violation
587 P2d
471.130(1),
prohibiting
of ORS
minors,
liquor
se).
sale of
negligence per
*18
by
“From this review
appears
of decisions
this court it
that
although this court has stated circumstances under which it
would
‘recognize’
‘create’ or
a
damages
new cause of action for
for violation
‘underlying’
of a statute when
is
there
no
common
action,
law cause of
the court has never done so to this date.
Indeed,
Burnette,
said,
effect,
this court has
in
in
in
a
so,
doubtful case it would not do
but would leave the mátter to
legislature.
the
“The issue in this case is one in which underlying there is no cause of action. O’Toole common law In rejected alleged this court the contention that violations of 9.460(3) (7) common provided ORS and the basis for a law Also, damages negligence. action for for because ORS 9.460 originally in nothing enacted we find in the statute history legislature legislative its to indicate that the or liability for its intended that there should be violation of Burnette, Thus, case, as Miller in and provisions. in this this decide, appraisal the of of the court must ‘on basis its own involved,’ ‘bring to into exis- policy considerations whether liability’ damage type reputation a of tort for to and tence new against attorney attorney allegedly fees an who has violated 9.460(4). provisions of the ORS J., by Linde, concurring opinion is of our
“The critical Burnette application quotations from Miller and our analysis adopted by prob- in this court those cases to presented in case. lem this may
“It that in some future case this court will decide to be analysis adopted by adopt it in those cases and abandon the by Linde, case, however, In analysis proposed J. nei- this analysis questioned adopted this party has either ther Burnette a court Miller proposed in different anal- Under ysis adopted court this case. these circum- be this stances, proper to be to not decide case we believe it in Miller analysis adopted by by application of this court Burnette, analy- doing specifically but in to refer so adopted in those cases. sis as problem presented in analysis “This this case sim- of the (Sec- analysis Torts proposed the Restatement of
ilar to the ond,) 874A, application deciding when such § imposed be as follows: should
“
protects
persons
legislative provision
a
class
‘When
pro-
proscribing
requiring
conduct but does
certain
violation,
remedy
may, if it
the court
deter-
vide a civil
remedy
appropriate
furtherance
mines that
legislation
assure the effective-
purpose
and needed to
injured
of the class
provision,
to an
member
ness of the
accord
action,
existing tort
or a new
right
using
action
suitable
existing
action.’
analogous
tort
cause
action
proposes that the
“The
comment to the Restatement
official
determining
impose
primary
application in
whether
test for
remedy
civil
is ‘con-
be
the new
civil
should whether
provision,
promot-
appropriate for
legislative
sistent with
policy
its
Comment
ing its
and needed to assure
effectiveness.’
omitted.)
(Footnotes
f, 874A.”
Justice Linde the concurred with result but disagreed with analysis the quoted above. years earlier,
Three by Linde, J., over a dissent Wahl, court reached the same result in Burnette v. 284 Or (1978). There, cases, P2d 1105 in three identical five minor children between the ages eight brought two to actions against their mothers for psychological injury emotional and caused failure of the perform defendant-mothers to their parental plaintiffs. duties to the complaints The alleged the children were deserted “maliciously, and abandoned inten- tionally, disregard and with cruel consequences.” the at 723. principal reliance a upon showing was
of a violation of statutes requiring parents provide nurtur- ing, support physical care. Relative the wisdom of creat- ing action, a new civil opinion cause states:
“The establishment courts of a civil cause of action regulatory based a criminal or premised upon on is statute not legislative intent to create such an action. It is obvious that legislature had the pro- intended civil action it would have one, legislatures many Therefore, vided times do. assumption underlying is that it intended that any obligation protection statute create civil or afford civil against injuries designed prevent. which it was When neither the nor statute the common law authorizes an action deny it, expressly and the statute does not the court should recognize being bring is that it asked to into existence a new type appraisal of tort basis of its own policy If considerations involved. a court decides create cause action act or omission which violates the stat- ute, solely protection the interest its which invaded derives court, although legislative from the in branding action culpable act or omission as is taken into consideration deciding law action should be court whether common upon If a a statute is established. civil cause action based court, court, legisla- not the it is because the established ture, necessary it is to further vindicate believes and desirable by statute. right or to further enforce the created legislature it plain it to the could have
“Because not, it must care- the civil has courts look created *20 fully establishing right particular at the or not the statute directly might which bear either hut at all statutes indirectly purpose. any If chance legislative there is court’s of a invasion into the field establishment that legislative might the total civil cause of action interfere with scheme, err on the side of non-intrusion because courts should always legislature such a civil possible it is for the to establish omnipotence in if no cause of action it desires. Courts have planning, particularly planning of the kind social field of restraint in fields here. Courts should exercise involved fairly comprehensive attempted legislature has which regulations. social statutory pre- provisions
“There is no doubt but that the requiring viously policy the kind of strong cited show a state physical care children parental nurturing, support and alleged to denied their here are have which defendants indicated, previously it not follow as a matter children. As does judicious it wise to vindicate that of course that would be against policy by damages by their action children tort omitted.) (Footnotes Or mothers.” 711-712. *“* * there is rejected saying claims that We of tort may be made limitation to the extent to which use aims.” 284 Or accomplishing social purpose actions for the at 715. life, follow any we should
If stare decisis has residual new, liability tort of a strict reject cases and creation these 133.310(3). of ORS upon a violation based
II
my
legisla-
support
conclusion.
Further
reasons
why
indicates,
terms,
this statute was
history
in clear
tive
if
arresting battering spouses
chary about
needed. Police were
women were
the assault. Battered
police
had
witnessed
question
is no
police inaction. There
suffering as a result of
no
there is
or the
of the law. But
goal
the need for the law
to
—
—
it
whisper
history
not a
legislative
in the
suggestion
a civil
of action
be created
contemplated
cause
would
if
police
employers
they failed
arrest.
against
and their
clear,
course,
opinions
Of
as the
cited above make
type
liability
court still has the
a new
of tort
power
create
own
of the
considerations
appraisal
policy
“on the basis of its
Wahl,
involved.” Burnette v.
First,
majority
the rule of strict
created in the
opinion
salutary
is at variance with the
that the
principle
basis
liability normally
for tort
unreasonable
conduct
tortfeasor. The common thread in almost all
is the idea
torts
unreasonable
interference
with
interests
others. W.
Prosser,
(4th
1971).
has,
Torts 6
ed
Although this court
in the
need,
torts,
face of
manifest
created
see Wights
strict
Inc.,
Jennings,
(1965),
Second, public liability this case involves the lia- bility state, counties, its peace cities and and of officers employed them. We right declined create a of action *21 private Wahl, in against persons Burnette v. v. City Miller of Portland, Godfrey and Bob v. Roloff, supra. Pontiac all I would tread even gingerly creating against more in a new public tort bodies and employees. scarce, their monies pub- Public responsibilities lic are multiplying. compound- I do not favor already ing hefty problems by public creating this new strict liability addition, tort.1 weight In the of overwhelming author- ity holds that a duty by police breach of a officer creates no liability on the of part the officer to an individual who is damaged by Annot., a lawbreaker’s See conduct. ALR 3d (1972). (1980-81). Note, 700-711 See also 94 Harv L Rev 820 is an extremely important This question, not heretofore pre- sented in either the trial court Appeals, or the Court of and we question should not decide presented. is poorly
This court to make kind of equipped pol- the icy majority way the judgments makes. We have no of knowing 1 According newspaper reports, Oregon’s recent because lack of funds one of counties, populous County, providing patrol most Lane sheriff no services the county. majority opinion prima plaintiff Under the would make out facie case 133.310(3). merely by showing a violation of ORS ability municipalities will affect the today’s
how decision competent to enforce the law and recruit hire and counties knowing have how way We no law enforcement officers. problems will exacerbate the fiscal today’s much decision strife, prevalence of domestic Oregon’s cities. Given budget could be considerable. government effect a local upon Furthermore, today’s no how decision way knowing we have practices. Although day-to-day law enforcement might affect matters for which immediate complaint alleges serious of conse- appropriate, was other serious matters police action personal upon officers quence imposition exist. for failure to arrest could result upon employers their period in a of social police use of scarce resources inefficient or crime. high crisis information, one
Third, a new law. We have no this is other, liability rem- the creation of a strict way or the whether peace necessary their officers is edy against public bodies and statutory peace doing If officers are not policy. vindicate opportunity a further duty, giving legislature their I favor action is the creation of such a cause of to look into whether employees day, public bodies and their necessary. To any from, legislature yet have not been heard either court.2
Ill majority’s rejecting A further reason exists tried, analysis. brought, This case was not considered repeatedly case. The appealed as a strict tort upon negligence.3 their claims based have characterized tort, having far- Uninvited, has created a new tort this court counties, state, and cities, their consequences to reaching not reach need not and should employees. officer We peace history opposition legislative no measure cities and counties. 2The shows contemplation, remedy they glimmer I am of notice that a civil Had had a opposition to been the bill. convinced that there would have *22 3The brief states: questions presented appeal are:
“The law, plaintiffs harm entitled to recover for emotional “1. As a matter of negligence?” a result of defendants’ caused as “negligence as actions” in refer to these actions Elsewhere their brief the duty.” performed [statutory] they “negligently this assert that defendants any question briefing this without or from argument parties.4 in very significant
This is The stated question. rule opinion every public activity, in majority apply will area potential with liability arising public per- strict from failure to in every governmental form acts dictated statute area of case, endeavor. We should not in question reach the unbriefed, unconsidered, and unenlightened.
IV I negligence case, see this case as a as did plain- attorneys, tiffs’ attorneys defendants’ and the trial court. Considering negligence case, it as a I would affirm the trial court. The basis for the trial summary court’s decision clear. The parties record contains a letter from the trial to the judge reads, which in part, as follows: argument summary
“After the of defendants motion for judgment, the Court took the matter under advisement study of supplied by the memoranda and assorted materials accomplished counsel. That has been and the Court will now rule.
“I am type convinced that this is not the of case in which Oregon suports Law favors or even damages award [sic] anxiety. for emotional distress or mental Since that damage plaintiffs, basis for the claim of the there is issue no any material fact and the motion therefore is well taken.” right. generally trial court was This court has rejected negligence unaccompanied claims for mental distress by physical injury physical consequences. The rule is stated Allen, (1978): in 731, 736, 580 Melton v. 282 Or P2d 1019 departed “It is true that rigid this court has from the rule of damages no redress for for mental disturbance without accom panying physical injury consequences, physical as stated Brosius, v. Adams 513, 139 (1914), and Rostad v. P 729 Ry. Co., 569, 581, (1921). Portland Etc. P 184 Or But each instance which we have redress for mental allowed physical injury, accompanying disturbance without it has involving flagrant been a case acts of a intentional character counties, having significance Oregon 4In tax a recent case considerable on our Oregon we own motion invited Association Counties and the ACLU to file County Guyer, 2, 1983, argued August Supreme amicus briefs. Grant Court No. 29562. *23 facts and circumstances which added under most unusual claim, clearly a plaintiffs weight of the each plaintiffs right feigned. and not See serious invasion 56-59, (4th 1971). Prosser, ed The cases § of Torts Law departed outrageous con- so have been those which we have duct, privacy, special circum- right of or some invasion of the (Footnote omitted) magnitude.” stances considerable
The mental distress sustained directly participa- husband and father. The was caused is not the alleged complaint in the peace tion of the officers award of mental dis- supported which has type conduct I by physical injury. would damages unaccompanied tress affirm. Melton v. Allen and adhere to J., joins in this dissent. Campbell,