Lead Opinion
This case requires us to again address the issue of how to determine when criminal conduct by a third party is foreseeable to another for purposes of Oregon negligence law. In particular, it requires us to consider whether the plaintiff in this case alleged sufficient facts in his complaint to withstand a motion to dismiss under ORCP 21 A(8) that was predicated on the theory that plaintiff had not adequately pleaded the foreseeability element of her negligence claims against defendants. Plaintiffs decedent was a foreign exchange student who was fatally shot outside an underage nightclub while she and other exchange students were waiting in line to enter the club. Plaintiff subsequently brought negligence claims against the owners and operators of the nightclub and the Rotary organizations that ran the foreign exchange program, alleging that each of those defendants knew of prior instances of violence around the nightclub and failed to take reasonable precautions to avoid the harm that befell the decedent. The defendants moved to dismiss the complaint, on the ground that this particular act of violence — an assault by a mentally ill person who went to the nightclub looking to shoot “preppies” or “pop tweens” — was unforeseeable as a matter of law. The trial court agreed with defendants, ruling that the assault was “a random shooting by a mentally disturbed individual” and that “[n] either the Rotary defendants nor the club defendants could reasonably anticipate the actions of [this particular shooter] or of homicidal mentally ill individuals in general.” Because we conclude that the complaint sufficiently alleged the foreseeability element of plaintiffs claims so as to withstand an ORCP 21 A(8) motion, thereby permitting the case to proceed from the pleading stage to the evidentiary stages,
I. BACKGROUND
A. Plaintiff’s Allegations
Plaintiff is the personal representative of the Estate of Martha Paz de Noboa Delgado (Delgado). Her complaint alleges the following.
1. Factual allegations
Delgado, a 17-year-old Peruvian resident, was staying with a host family in White Salmon, Washington, as part of an international exchange program run by defendants
The Zone, which is owned and operated by a family of entities (“the Zone defendants”
The 2009 shooting was not the first at that particular location. In July 2002, a shooter fired into a crowd of people standing outside the nightclub, striking three people. At that time, the club was named “Quest PDX,” but it was owned and operated by the Zone defendants. There had also been a “history of fights and assaults in the line outside the nightclub.”
Moreover, The Zone’s surrounding area had experienced violent crimes before the 2009 shooting. The Zone was located in the “Old Town/Chinatown neighborhood” bordering downtown Portland; it was also part of what is referred to by police as the “downtown entertainment district,” which includes several streets in downtown Portland where nightclubs and bars are located. In the years leading up to the 2009 shooting, the downtown entertainment district was “plagued by recurrent incidents of violence,” which were “linked by police to gang activity and to clubs in the district exceeding capacity and serving too much alcohol.” In 2005, a string of downtown shootings left two people dead and four injured, and police “blanketed the downtown entertainment district with police officers to ease fear.” The effort, which was called “Operation Safe Streets,” included at least two dozen police officers patrolling on foot and horseback on Friday and Saturday nights through early morning, gang enforcement officers, traffic safety officers, parole officers, and liquor control investigators. Owners of downtown nightclubs were asked to close early on weekend nights and were advised to have adequate security, cut off all intoxicated customers, and respond swiftly to problems or notify police.
After violence continued in the downtown entertainment district, Portland police called a “bar summit” in August 2006 with owners and managers of downtown bars and nightclubs to help them adopt policies to reduce violence. At the meeting, which included a representative of one of the Zone defendants, businesses and police addressed, among other issues, the shootings in the Old Town/Chinatown neighborhood. “It was known by Portland police and club owners alike that there was a high probability that more shootings would take place in the downtown entertainment district.”
At the summit, police and businesses also addressed whether the violence on downtown sidewalks and parking lots was related to drunken club-goers (as police believed) or drug dealers (as clubs contended). The Zone was located in what used to be one of Portland’s “Drug Free Zones,” in which anyone convicted of a drug offense could be barred from returning. The drug-free-zone program expired in 2007, and “drug dealers and addicts took over Portland’s Chinatown/Old Town neighborhood”; “[p]olice officers came to refer to the area as ‘crack alley’ and residents complained of being terrorized by an increasingly aggressive and confrontational breed of drug users and sellers.” By
“Drug dealers, drug users, and gang members, all of whom frequented the area where the Zone nightclub was located, frequently carried weapons ***.” “[S]ome club owners, realizing that their clients were in danger of violent assault, increased security at their bars and nightclubs.” In 2006, Dan Lenzen, a principal at one of the Zone defendants, “acknowledged downtown safety problems, but said they were created by ‘a few bad apples,”’ and that police, liquor control, and others should “work together for the benefit of club-goers.”
Before the shooting, The Zone had undertaken measures to provide security for their customers inside and outside their club. Those measures included:
“(a) The Zone had an employee whose primary responsibility was monitoring customers as they come and go from the club. The employee was to assist in line control; to distance ‘undesirables,’ i.e., intoxicated persons, harassers, transients, known trouble makers, or gang affiliated persons from guests; and to monitor the parking lot and deter potential guests from loitering in or around their cars;
“(b) The Zone nightclub had a security camera that monitored the outside of their establishment;
“(c) The Zone nightclub had a security guard or door-person at the door outside of the premises who frisked everyone before entry, checking for drugs, alcohol, firearms, or other weapons;
“(d) In the past, The Zone had hired off-duty police officers to provide security for their customers;
“(e) On or about 2006, The Zone nightclub remodeled its facilities in the hopes of attracting a better clientele and reducing problems at the club including violence.”
Thus, plaintiff alleged, the Zone defendants “knew about the risk of violence that its customers faced.”
Plaintiff further alleged that underage nightclubs, generally, are understood to pose “inherent” risks of violence because of the high proportion of young male patrons, high noise levels, crowding, competitive environment, and underage drinking. “A metropolitan nightclub may see as many as three or four assaults on staff each night and are often confronted with armed patrons. Shootings, stabbings, felonious assaults, drug violations, and/or murders are commonplace in metropolitan nightclubs across the country.” Indeed, several cities around the country “have banned or heavily regulated teen dance clubs.”
According to plaintiffs allegations, the instances of violence that “occurred nationally at underage nightclubs and locally in the area around The Zone nightclub were all publicized in local and/or national media, and [the Rotary defendants] knew, or in the exercise of reasonable care, should have known, about the dangers of leaving [Delgado] at The Zone nightclub on the date and at the time in question.”
2. Specifications of negligence
In plaintiffs second amended complaint, which is the operative complaint, she alleged that the Zone defendants owed a duty to Delgado, a business invitee, to exercise reasonable care to make the premises safe for her, including protection from criminal acts by third parties. Plaintiff alleged that the Zone defendants breached that duty in the following particulars:
“(a) In failing to take reasonable measures to protect their customers from the criminal acts of third parties;
“(b) In making their customers stand in line in front of the club;
“(c) In failing to have sufficient security personnel to protect their customers;
“(d) In failing to properly train their staff to identify threats to their customers;
“(e) In failing to identify Erik Ayala as a threat while he was in front of The Zone;
“(f) In failing to have adequate emergency response procedures in place to protect customers once a threat was identified; [and]
“(g) In failing to warn their customers or the parents of their customers about the risk of being assaulted while patronizing The Zone nightclub.”
With regard to the Rotary defendants, plaintiff alleged that Delgado lived with a host family under the “auspices, sponsorship, and control” of the Rotary defendants, and that the host parents were the Rotary defendants’ agents. Plaintiff alleged that the Rotary defendants were authorized to exercise “independent supervisory and parental responsibility to safeguard [Delgado’s] physical and mental well-being,” and, thus, that the special relationship between Delgado and the Rotary defendants “gave rise to a heightened duty of care beyond the general duty to avoid foreseeable risk of harm.” According to plaintiff, the Rotary defendants, directly or acting through their agents, breached that duty in the following particulars:
“(a) In failing to provide host parents with sufficient training so as to reasonably ensure the safety of the students;
“(b) In leaving the students unsupervised, late at night in a high crime area;
“(c) In failing to adopt and enforce reasonable rules and regulations to ensure the safety of the students;
“(d) In failing to adopt reasonable rules and regulations regarding travel to prevent the students from being left alone in dangerous areas;
“(e) In failing to properly and adequately warn all the students and their parents of the dangers of being left unsupervised in a high crime area.”
B. Procedural History
The Zone defendants and Rotary defendants each moved under ORCP 21A to dismiss all of the claims asserted in plaintiffs second amended complaint, on the ground that plaintiff had failed to allege any foreseeable risk of harm to Delgado. See ORCP 21 A(8) (providing for dismissal for “failure to state ultimate facts sufficient to constitute a claim”). In their respective Rule 21 motions, defendants argued that plaintiffs negligence allegations boiled down to the following theory: (1) Criminals were more likely to commit crimes in the area in which The Zone was located; (2) defendants knew or should have known of that fact; and (3) Delgado was killed in that “high crime area.” But those allegations, defendants argued, failed to establish a foreseeable risk of the particular crime that killed Delgado, which defendants characterized as a “random spree shooting” against a particular class of person (“preppies”). According to defendants, such a shooting was just as likely to occur at a mall, a movie theater, or an ice cream parlor; thus, “the occurrence of a random spree shooting in a high crime area does not make it any more foreseeable than if it occurred in a place one would normally deem safe, such as a movie theater or a school.” Indeed, the “randomness” of shootings like the one that injured Delgado, defendants argued, “means that when and where they occur are not foreseeable, as that term is used in Oregon tort law.”
Plaintiff, meanwhile, argued that defendants’ arguments misapprehended what it means for a risk of harm to be foreseeable under Oregon case law. In plaintiffs view, “[foreseeability in this case does not turn on being able to foresee ‘random spree shootings,’ but rather on foreseeing the risk of a violent criminal assault” to Delgado. (Emphasis added.) “It is the dangerous character of the nightclub, its location and its violent history,” plaintiff asserted, “that would allow a jury to conclude that the harm in this case was foreseeable.” She explained that, “[t]here are many foreseeable ways in which the assault might have taken place [.] * * * Even if an assault by a mentally ill person is somehow unusual or unexpected, the resulting harm was legally foreseeable because it was within the class of reasonably foreseeable hazards” at The Zone.
The trial court ultimately agreed with defendants, ruling that the shooting that killed Delgado was unforeseeable as a matter of law. In the order granting defendants’ motions, the court explained:
“For the purposes of these motions the allegations about what the defendants should have known must be accepted as true. The court assumes both the club owners and the exchange program sponsors knew of all the alleged acts of violence associated with the neighborhood, and of the problems with violence alleged to be characteristic of underage clubs. Knowing of these dangers, the defendants may be expected to take reasonable steps to avert them. They should not be required to take precautions against dangers not reasonably expected. So the question becomes one of how reasonable it is to expect attempts at mass murder.[ 3 ]
“The answer is that such crimes are both rare and random. Looking back over the years there have been similar acts of violence at a McDonald’s in San Ysidro, California, a movie theater in Aurora, Colorado, a college campus in Virginia, and an army base in Texas. Each of these events, like this event, was a random shooting by a mentally disturbed individual. Other crimes, even violent crime, which happened at one of these locations prior to the shooting do not create an expectation that such shootings will occur.
“Neither Rotary defendants nor the [Zone] defendants could reasonably anticipate the actions of Mr. Ayala in particular or of homicidal mentally ill individuals in general. There may come a time in which such crimes are reasonably anticipated, but that time is not, thankfully, the present.”
(Footnote omitted.)
The court subsequently entered limited judgments that dismissed all claims against both the Zone defendants and the Rotary defendants. Plaintiff appeals those limited judgments and argues, as she did below, that her complaint alleges facts that, if proved, establish a foreseeable risk of the type of harm that befell Delgado.
II. STANDARD OF REVIEW
In reviewing a trial court’s dismissal of a complaint under ORCP 21 A(8), we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiffs favor. Bailey v. Lewis Farm, Inc.,
III. ANALYSIS
A. Negligence Standards
Under Oregon law, “unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue
In this case, plaintiff invokes two special relationships that potentially “create,” “define,” or “limit” defendants’ duties. Fazzolari,
The second “special relationship,” which plaintiff invokes with respect to the Rotary defendants, is the relationship between a child and a person entrusted with that child’s care. See id. (describing similar allegations that a defendant was “an organization entrusted with children for supervision and care, [and] had a duty akin to the relationship between a school and its minor students”). In Stewart, we explained that schools “have a special duty to students ‘apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm,’ and that ‘[t]he scope of this obligation does not exclude precautions against risks of crime or torts merely because a third person inflicts the injury.’”
Thus, the scope of each of the special relationships alleged in this case is defined in terms of reasonable foreseeability. That is, “although each defendant may have had a special relationship with plaintiffs [decedent] and a corresponding duty to protect against
The starting point for discussing what must be alleged (and eventually proved) to establish foreseeability of harm — regardless of mechanism — is Fazzolari. In Fazzolari, a case that itself involved harm caused by third-party criminal activity, the court explained that “common-law negligence imposes liability for harms of the general kind and to plaintiffs of the general class placed at risk, harms that a reasonable factfinder, applying community standards, could consider within the range of foreseeable possibilities.”
“[i]t has been observed that ‘if we use a very generalized description of the type of harm that was foreseeable and of the type of harm that occurred, an answer that the result was within the risk is inevitable.’ And on the other hand, ‘[if] we use a detailed, mechanism-of-harm description of the result and the risks, the answer will be negative.’”
Jefferson Plywood,
Both before and after Fazzolari, in cases involving claims of negligence based on harm caused by third-party criminal activity, the Supreme Court and this court have struggled with how to formulate the foreseeability element of the claim and, in particular, with how to characterize the “risk of harm” that must be foreseeable. Our decision in McPherson v. Oregon Dept. of Corrections,
“draw only one conclusion: whether a rational juror can find that harm is foreseeable, particularly in the context of criminal activity by third parties, is an ad hoc determination depending on the particular circumstances of each case. No bright line rules exist. Fact-matching is of limited utility. Unforeseeability as a matter of law should be found only in extreme cases.”
Id. at 617.
Notwithstanding that admonition, there are common features to the decisions involving third-party criminal activity — and perhaps more consistency to our approach to the issue of foreseeability in such cases than we acknowledged in McPherson. First, the cases have essentially asked the same two questions concerning foreseeability that the Supreme Court asked in Jefferson Plywood: (1) Based on the facts that the defendant knew or should have known, what general class of criminal harm was foreseeable to the defendant?; and (2) was the criminal harm that ultimately befell the plaintiff within that general class of harm? See, e.g., Fazzolari,
Second, a plaintiff must allege facts demonstrating that the harm by third-party criminal conduct was foreseeable to the defendant in a concrete way and may not rely on the abstract proposition that “crimes may occur and that the criminals perpetrating them may cause harm.” The Supreme Court rejected that theory in Buchler v. Oregon Corrections Div.,
“While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity. In other words, in our society it is foreseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”5
Our recent decision in Stewart illustrates the point made in Buchler. There, the plaintiff alleged that his ward, Jane Doe, had been sexually assaulted by an adult male in the men’s restroom of a Dairy Queen restaurant during a fundraiser sponsored by Kids, Inc. The plaintiff alleged that the defendants, Kids, Inc. and Dairy Queen, should have reasonably foreseen the risk of that harm because “(1) the car wash was advertised; (2) teenage girls would be present at the car wash, and (3) sexual predators might have had Internet contact with the teenage girls.” Stewart,
In analyzing whether the plaintiff had alleged sufficient facts to demonstrate that the sexual assault was foreseeable to the defendants, we reasoned that the plaintiffs theory in Stewart (that the world is full of sexual predators who pose a foreseeable risk of assault) was indistinguishable from the theory discredited in Buchler, i.e., that it is always foreseeable that criminals will steal guns and harm people with them. We further reasoned that the plaintiffs allegations against Dairy Queen were insufficient to give rise to a reasonable inference that the “place or character” of the restaurant was such that Dairy Queen should have anticipated the sexual assault. We explained that the plaintiff was required to allege specific factual support — as opposed to relying on generalized abstractions about the existence of criminal activity — that those in the family restaurant business should know that widely advertising an event with
A third principle that emerges from our case law in this area is that proof of foreseeability will differ depending on whether the alleged negligence by a defendant is the failure to protect against the risk of harm posed by criminals in general, such as at a school (Fazzolari), a bank (Torres), an apartment complex (McPherson), stores (Uihlein and Brown v. J.C. Penney Co.,
By contrast, where the case involves a theory of negligence based on the foreseeability of criminal activity at large, as this case does, courts have consistently defined the class of harm more generally. In this type of case, courts have focused on whether the defendant was on notice of the potential for harm from some class of criminal activity. See Uihlein,
B. Sufficiency of Plaintiffs Allegations
With that background, we turn to the question before us: whether the harm that befell Delgado was unforeseeable as a matter of law, as the trial court ruled. Plaintiff argues, as she did below, that Delgado was put at risk of a violent assault while waiting in line and that “[v]iolent criminal assault was the very hazard that [defendants] had a responsibility from which to protect plaintiff’s decedent.”
1. The Zone defendants
We assume, as did the trial court, that the Zone defendants were aware of prior criminal activity at The Zone and in its general vicinity. That criminal activity included a 2002 shooting at The Zone; “a history of fights and assaults in the line outside the nightclub”; aggressive and confrontational drug users and dealers in the vicinity; and serious enough problems with gang violence and intoxication in the immediate area to necessitate a “bar summit” between police and bar owners, including The Zone’s representatives, in 2006. Plaintiff further alleged that The Zone had an employee who was charged with assisting in line control and “distancing] ‘undesirables,’ i.e., intoxicated persons, harassers, transients, known trouble makers, or gang affiliated persons from guests” — the inference being, in light of the other factual allegations, that security was necessary to protect guests waiting in line.
From those facts, a jury could find that it was reasonably foreseeable that guests waiting in line outside The Zone nightclub would be exposed to criminal activity and would be at risk of a violent assault, including gun violence. That is, a jury could find that The Zone’s guests waiting in line were at risk of the general class of criminal harm — violent assault — that had occurred there previously, thus requiring the Zone defendants to take reasonable precautions to protect those guests from such harm. See McPherson,
Nonetheless, the Zone defendants argue that a risk of violent assault is “simply insufficient as a matter of law” to make Delgado’s death foreseeable, because, under Buchler and Stewart, “a plaintiff must plead and prove that the specific type of criminal activity
Having concluded that the facts alleged by plaintiff establish a general class of foreseeable harm — i.e., violent assault of persons waiting in line outside The Zone — the remaining question is whether plaintiff has alleged facts which, if proved, would permit a reasonable factfinder to find that the criminal harm that Delgado suffered falls within that general class. The trial court reasoned, and the Zone defendants argue on appeal, that the harm to Delgado was qualitatively different from any previous criminal activity that had occurred at or near The Zone, because the shooter, Ayala, was mentally ill and selected a target “at random.” Although a reasonable factfinder might well agree with the Zone defendants that Ayala’s crime was unforeseeable, such a finding is not required as a matter of law. Again, viewing the pleadings liberally, as we must at this stage of the case, we are unable to say that it would be unreasonable for a factfinder to affirmatively reject the Zone defendants’ view of things and find that the harm suffered by Delgado was similar enough to the prior physical assaults at or around The Zone so as to bring it within the class of crimes that The Zone defendants knew or should have known were likely to occur.
Oregon courts have never required a plaintiff to prove that the precise mechanism of injury or “actual sequence of events” that caused the harm in question was foreseeable. Fazzolari,
For the same reason, we cannot say that, as a matter of law, the circumstances alleged in the complaint were so highly unusual, or the sequence of events so attenuated, that no reasonable person in the Zone defendants’ position could have anticipated the harm to Delgado. See McPherson,
Thus, we conclude that the trial court erred in dismissing plaintiffs claims against the Zone defendants on foreseeability grounds, and we reverse the limited judgment in their favor. We appreciate the trial court’s concern that a club owner might not reasonably be expected to prevent an attempt at “mass murder.” However, that concern relates more directly to the standard of care: Did the Zone defendants respond reasonably to the foreseeable risk of a violent assault against someone waiting in line at
2. The Rotary defendants
We conclude, for reasons similar to those discussed above, that plaintiff sufficiently alleged that the Rotary defendants, acting through the host parents, created a foreseeable risk of harm to Delgado — at least with respect to one of plaintiffs specifications of negligence. Plaintiffs specifications of negligence, which are set out above,
Those allegations are sufficient to survive a motion to dismiss on the question of foreseeability. Plaintiffs complaint does not rest on allegations that crime is generally foreseeable, or on a conclusory allegation that The Zone is located in a high-crime area. Rather, plaintiff alleged specific facts that, if proved at trial, would establish that The Zone nightclub had experienced violent crime, including homicidal violence. Assuming, as we must at this stage of the proceedings, the truth of those allegations, and that the host parents were aware of those facts and nevertheless left Delgado there, a reasonable juror could conclude that the host parents’ conduct exposed her to a foreseeable risk of violent assault.
The question then reduces to whether a reasonable jury could find that the harm that actually befell Delgado was within that general class. The crux of the Rotary defendants’ argument is the same as the Zone defendants — that “[a] random spree shooting is simply not the same thing as the robberies, assaults, burglaries and kidnappings referenced in Appellant’s Second Amended Complaint.” We reject that argument for the same reasons expressed above: On the facts alleged, we are unable to say that all reasonable factfinders would have to agree with the Rotary defendants that the criminal harm that befell Delgado was "not the same thing” as the criminal harms of which the Rotary defendants had notice, and that no reasonable factfinder could find that the harm to Delgado fell within the class of harms of which the Rotary defendants are alleged to have been aware.
Nor can we say, on the facts alleged, that, as a matter of law, no reasonable person in the Rotary defendants’ position could have anticipated the sequence of events that resulted in harm to Delgado. The link between defendants’ allegedly negligent conduct and the actual harm that befell Delgado was direct: The host parents knew that there had been a significant history of violent
IV. CONCLUSION
We emphasize the narrow scope of our holdings in this case. The defendants’ motions to dismiss were limited to the question of foreseeability, and that is the only question we have addressed. However, a plaintiff must plead and prove additional elements beyond the foreseeability of the harm to the plaintiff to recover on a negligence claim. Specifically, a plaintiff must plead and then prove “(1) that [the] defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that [the] defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was a cause of [the] plaintiffs harm, and (5) that [the] plaintiff was within the class of persons and [the] plaintiffs injury was within the general type of potential incidents and injuries that made [the] defendant’s conduct negligent.” Stewart,
We imply no view on any of those other elements of plaintiffs negligence claims against either set of defendants. Similarly, and notwithstanding the dissent’s view, our opinion should not be read as imposing strict liability anytime a business is or should be aware of some risk of criminal activity on its premises, or anytime a custodian of a child leaves a child in an area known for crime. We hold simply that, in this case, plaintiff has alleged sufficient concrete facts about the nature of The Zone and its neighborhood that, if proved, would permit a reasonable factfinder to find that (1) the Zone defendants were on notice that, absent appropriate security measures, their patrons were at risk of harm by physical assault, including assault by weapon; (2) the Rotary defendants were on notice that assaultive conduct occurred frequently in The Zone’s neighborhood and, thus, on notice that, by leaving Delgado at The Zone, they would be exposing her to the risk that she would become the victim of such assaultive conduct; and (3) the harm that befell Delgado — death by shooting — fell within the class of criminal harms of which both The Zone and the Rotary defendants had notice, making that harm a foreseeable one.
Reversed and remanded.
Notes
By “evidentiary stages” we mean summary judgment or trial depending on the parties’ litigation choices and the outcome of any summary judgment practice.
These include defendants Five Stars, Inc.; Concept Entertainment Group, Ltd.; and Concept Real Estate, LLC. For purposes of this opinion, we refer to the defendants collectively.
The court explained that, although the shooting resulted in two deaths, “the circumstances of the incident, as pled, make the characterization [‘mass murder’] appropriate, even though the casualties were relatively few in number.”
Section 344 provides that a possessor of land who holds it open for business purposes is subject to liability to members of the public while they are on the land for such a purpose, for physical harm caused by the “accidental, negligent, or intentionally harmful acts of third persons,” and by the failure of the possessor to exercise reasonable care to “discover that such acts are being done or are likely to be done,” or “give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Comment f to that section provides:
“Duty to Police Premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection”
(Emphasis added.)
In so doing, the Supreme Court retreated from its reasoning in Kimbler v. Stillwell,
It is possible for a case to involve both theories of negligence — i.e., that a defendant should have foreseen the risk of harm from criminal activity generally and from the risks posed by a particular actor. Cf. Chapman v. Mayfield,
Although much of the discussion in plaintiffs brief refers to the Zone defendants, she “adopts and incorporates” those same arguments with regard to the Rotary defendants, arguing that the “legal principles pertaining to foreseeability are equally applicable to the Rotary defendants.”
The dissent points out that, notwithstanding other violent crime that occurred around The Zone in the year leading up to the shooting, “no homicides occurred in the area in 2008 or during the early weeks of January 2009.”
Our deepest disagreement with the dissent is on this point: Who should decide whether the harm to Delgado was qualitatively different from the previous criminal activity that occurred at or near The Zone? The dissent, applying its own formulation of “reasonableness,” would give little weight to criminal activity that occurred more than two years before the incident and conclude, as a matter of law, that the harm that befell Delgado was unforeseeable in the absence of a previous and continuous pattern of “random” shootings near The Zone. But, as we understand Oregon law, juries — not judges — are entrusted with applying community standards of reasonableness in negligence cases and, in particular, are entrusted with determining what facts to give little weight and what facts to give greater weight in that calculus. At least since Fazzolari, it has been well established that “[t]he jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor’s conduct clearly meets the standard or clearly falls below it.”
The dissent adopts defendant’s characterization of the incident as a “random” shooting and consistently repeats that description throughout its opinion. E.g.,
The Rotary defendants contend that “[t]he arguments regarding foreseeability are different with respect to the two respondents. The claim against [the Zone defendants] is based on premises liability, and the allegations in support of that claim differ from the allegations against Rotary, which are based on the alleged existence of a special relationship.” Although we agree in the abstract with the Rotary defendants that there are potential differences in how foreseeability is analyzed with regard to each defendant, the Rotary defendants’ motion to dismiss was not based on those differences or on what the Rotary defendants, as opposed to the Zone defendants, knew about prior criminal activity at and around the nightclub. Rather, the basis of their motion was the same as the Zone defendants: that is, the prior criminal acts and violence around The Zone were not sufficient to demonstrate that this shooting was reasonably foreseeable.
Some of the other specifications of negligence by the Rotary defendants, which involve their failure to train host parents, failure to adopt reasonable rules and regulations to ensure student safety and restrict student travel, and failure to warn students and parents of the dangers of high-crime areas, provide a helpful contrast in that respect. For that conduct to expose Delgado to a risk of harm, there are a number of additional contingent steps in play: that, without such training, warning, or rules, the students and host parents would be unable to perceive risks from high-crime areas or ignore those risks; host parents would, in fact, take students into high-crime areas without taking steps to ensure their safety; and that harm would result from that failure. The length of that chain of events might well preclude the conclusion that the harm to Delgado was a foreseeable risk of the particular alleged acts of negligence. However, because the Rotary defendants moved to dismiss the complaint in its entirety, we need only address whether any of the specifications of negligence presents a viable theory. We discuss the specifications concerning the Rotary defendants’ failure to train, warn, or adopt and enforce rules and regulations only to the extent that they illustrate, by contrast, the direct relationship between the host parents’ alleged knowledge of the dangers and their decision to expose Delgado to that known risk by dropping her off in that area.
Dissenting Opinion
dissenting.
Plaintiff alleges that the Zone defendants
Plaintiffs theory of legal foreseeability is belied by the uniqueness of the above circumstances, as will be developed more fully later in this dissent. However, before discussing the legal import of the above circumstances, it is appropriate to consider the legal standard of review that is accorded to plaintiffs allegations, and the rule of law that governs the legal analysis in this case.
The Zone defendants and Rotary defendants moved to dismiss plaintiffs amended complaint under ORCP 21 A on the ground that it failed to state sufficient facts to allege that the risk of harm that resulted in the decedent’s death was reasonably foreseeable by defendants. The trial court granted defendants’ motions, resulting in this appeal. The only reasonable inference that could be drawn from the circumstances of the shooting as alleged is that it was a completely random event. Nonetheless, plaintiff attempts to classify the shooting as a specific risk of harm resulting in injury to her decedent that is within the scope of a general class of reasonably foreseeable hazards, thus making the resulting harm to the decedent legally foreseeable.
In support of her theory, plaintiff alleges four general categories of factual circumstances that were allegedly known or should have reasonably been known to the Zone defendants. She makes allegations about the general culture of “underage nightclubs”; the history of fights and assaults in the line of patrons outside the club; and the history of the excessive use of alcohol and drugs, and gang-related activities within the area. Plaintiff also relies on crime statistics for the years 2006, 2007, 2008, and the early weeks of 2009 for rapes, assaults, robberies, kidnappings, and sex crimes occurring in the downtown neighborhood. According to her allegations, no homicides occurred in the area in 2008 or during the early weeks of January 2009. Three homicides are alleged to have occurred in the neighborhood in 2007 and one homicide in 2006. We do not know from plaintiffs allegations whether those homicides were caused by gunshots. We also do not know from the statistics what assaults or other crimes involved the use of firearms. The “neighborhood” is, according to the allegations, a 52-square-block area within which the entertainment district comprises nine blocks. Additionally, plaintiff alleges two prior instances of shootings within the district, one in 2002 and one in 2005. Pursuant to the applicable standard of review, I assume that plaintiffs allegations are true, and I afford her the benefit of all reasonable inferences that arise therefrom in making the following analysis.
It is helpful to the analysis to observe what plaintiff does allege and what she does not allege. As to the particular claims of negligence against the Zone defendants, plaintiff alleges a different set of facts than she alleges in support of her allegations concerning legal foreseeability. She alleges that the Zone defendants were negligent
“(a) In failing to take reasonable measures to protect their customers from the criminal acts of third parties;
“(b) In making their customers stand in line in front of the club;
“(c) In failing to have sufficient security personnel to protect their customers;
“(d) In failing to properly train their staff to identify threats to their customers;
“(e) In failing to identify [the shooter] as a threat while he was in front of The Zone;
“(f) In failing to have adequate emergency response measures in place to protect customers once a threat was identified; [and]
“(g) In failing to warn their customers or the parents of their customers about the risk of being assaulted while patronizing The Zone nightclub.”
When the allegations of negligence and foreseeability are compared, it is evident that plaintiff does not claim that there were prior instances of random shooting sprees or drive-by shootings of patrons within the entertainment district or at the club prior to January 24, 2009, that are similar to the circumstances of this case and that thereby put the Zone defendants on notice as to a specific risk of harm from a random shooter. (Plaintiff does allege two prior incidents of shooting within the entertainment district, and those allegations will be discussed later in this dissent.) Rather, she can prevail on her claims of negligence only if she demonstrates that the decedent’s death was a reasonably foreseeable risk of harm encompassed within the scope of the general risks of harm that she claims defendants should have anticipated in the exercise of reasonable care. See Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP,
Identifying the legally proper scope of the general risk of harm that is applicable to the particular circumstances of this case from the allegations of the amended complaint is not an easy task. Plaintiff adopts a diffused rather than a focused approach. That approach is in itself problematic to the analysis, because the more circumstances the description of the general risk of harm encompasses by a proposed definition, the more generalized its scope becomes for purposes of fitting a specific risk of harm within it that may not reasonably belong in the general harm classification. For example, plaintiffs theory groups crimes of rape, robberies, kidnappings, drugs, other sex crimes, and non-gunshot related assaults and homicides into the same general risk of harm for gun-related assaults and homicides.
In my view, the proper approach is to narrow the scope of general harm to those kinds of crimes that are similar to the circumstances of this crime based on a test of reasonableness. First, that test should consider circumstances as they existed on or about January 2009, at the time of the shooting. Consequently, circumstances that existed in 2005 to 2007, when the last homicides in the district occurred, are of little weight unless they are a part of a pattern that occurred in the past and that continued up to the time of the shooting in this case. Under a test of reasonableness, the crime statistics (by themselves) that plaintiff relies on do not give rise to a reasonable inference that random shooting sprees, or gunshot-related assaults and homicides were a common occurrence or part of a preexisting pattern at the time that the decedent was shot. Indeed, the absence of such allegations could permit a reasonable factfinder to draw the opposing inference. Also, under a test of reasonableness, the other violent criminal activities that plaintiff claims put the Zone defendants on reasonable notice as to the likelihood of a shooting spree are not alleged to have existed at the place and time that the decedent was shot. Finally, even giving plaintiff the benefit of an inference that the Zone defendants’ club was located in a “high crime” area and that the Zone defendants operated a youth nightclub that provided a forum for excessive alcohol and drug use and fights, none of these kinds of activities are alleged by plaintiff to have specifically contributed in any way to the decedent being shot by a random shooter.
Nonetheless, along with allegations of a “climate of violence” prior to 2009, plaintiff alleges two prior incidents of shooting within the entertainment district. In one allegation, plaintiff alleges that, “[i]n August 2005, after a string of downtown shootings that left two
I am unpersuaded by plaintiffs argument that the above incidents, together with the allegations concerning the Zone defendants’ youth nightclub operation and its location in the entertainment district, as discussed above, give rise to a permissible inference that the Zone defendants should have reasonably anticipated the kind of harm that befell the decedent. The shooting incidents are remote in time, and any claim of similarity of the incidents to the facts in this case would require a factfinder to speculate. Two shooting incidents and four unspecified homicides over a period of seven years within a 52-square-block area do not establish a pattern of random shooting of bystanders. The earlier shooting incident occurred in 2002; the more recent shooting incident occurred in 2005 (four years before the decedent was shot) and not at the Zone defendants’ location. Indeed, the complaint cites numerous efforts after 2005 by city and police officials and local business owners to combat the criminal activity within the area that separates that time period from 2009. The rule of legal foreseeability of a risk of harm imposes a standard that is based on circumstances that exist on or about the time of the injury to the plaintiff. I would hold that the prior incidents relied on by plaintiff are too remote in time and too qualitatively different to permit a reasonable person to infer any similarity to the circumstances that befell plaintiffs decedent.
Moreover, the allegations of prior shooting incidents are too ambiguous to give rise to a reasonable inference that the risk-creating activity that defendant allegedly engaged in is qualitatively similar to the circumstances of the earlier shootings. According to plaintiffs pleading, the Old Town/ Chinatown neighborhood is comprised of 52 square blocks and the entertainment district covers a nine-block district “where many nightclubs and bars are located.” The 2005 incident occurred somewhere in the “downtown” area. With respect to the shooting outside the club in 2002, plaintiffs allegations do not inform the reader whether the victims were patrons standing in line waiting to get into the club, ordinary bystanders, gang members, or of any other reason for their presence. Also, plaintiffs allegations do not inform the reader whether the 2002 shooter was a random shooter, a gang member, or someone who had an intended victim in mind.
In the final analysis of plaintiffs allegations, she is left to rely on the criminal history of the entertainment district (in which no homicides occurred within the year and weeks preceding the decedent’s death) and on out-of-state experiences with underage nightclubs as the basis for her claim of reasonable foreseeability. In abstract terms, random shooting sprees and gunshot-related homicides could constitute a separate category of general risk of harm, or they could constitute a specific risk within a general class of risk of harm for foreseeability purposes. A hypothetical contrast illustrates the point. Consider a case where a child at a daycare center is playing outside and is shot during a drive-by shooting. An operator of such a daycare center could reasonably anticipate that risk of harm to the child if random drive-by shootings or gunshot homicides occurred in the area on a regular basis. It would follow that the risk of harm to the child could be legally foreseeable because the specific risk to the child is within the general risk of gunshot homicides and random shootings. In contrast to the hypothetical, the alleged circumstances in this case do not involve regular incidents of random or drive-by shootings, or gunshot-related homicides.
In summary, the very tragic specific harm that befell plaintiffs decedent was the result of a random shooter who was mentally ill and who undertook to shoot “preppies.” The randomness of his criminal target demonstrates that it could have just as well have been committed at a soccer or football game, an outside youth church or synagogue gathering, a mall, a public or private school event, or any place where young people typically
Plaintiffs allegations against the Rotary defendants suffer from a similar flaw. Plaintiff alleges in substance that the Rotary defendants were negligent because it was reasonably foreseeable that the decedent would be exposed to an unreasonable risk of harm due to the alleged high-crime area in which the club operated and the perils of underage nightclubs. That argument appears to be an argument that no reasonable parent would have permitted their child to attend the underage nightclub for safety reasons. Even if that is not plaintiffs argument, it is difficult to imagine how any parent could have reasonably anticipated the risk of harm from a random shooter. Additionally, whatever reasonably anticipated risks of harm (harm from alcohol, drugs, or fights) existed, plaintiffs decedent was not killed as the result of one of those risks. Rather, she was randomly killed as the result of a harm that no reasonable parent could have anticipated or prevented. The analysis regarding whether the specific harm that befell the decedent is within the scope of reasonably anticipated general harms applies equally to the Rotary defendants, and I would affirm the trial court on the rulings as to both sets of defendants for these reasons.
Finally, this case has important policy implications. The majority’s conclusion effectively implies that the highly-policed nine-block entertainment district within the largest city in Oregon was a dangerous place subject to ongoing criminal violence against ordinary citizens in 2009 and that business operators, by operating their businesses within that district, risked injury to their patrons because of random criminal activities of third parties who were not within the operators’ control. In defining what constitutes a general class of harm for foreseeability purposes, the majority’s opinion expands the concept of general risk of harm far beyond the practical realities of what business operators, parents, and de facto guardians should reasonably anticipate as risks of harm. In the end, the expansiveness of the majority’s holding regarding the general class of risk of harm turns the policy that actionable negligence must be based on reasonable foreseeability on its head.
I dissent for these reasons.
On appeal, there are two sets of defendants: the operators of the underage nightclub, who will hereafter be referred to as the “Zone defendants,” and the defendants who were connected with the Rotary Exchange program of which decedent was a part, who are referred to in the opinion as the “Rotary defendants.”