BodyFelt Mount

By:  Jason Gardner

In 1987, the Oregon Supreme Court decided the case of Fazzolari v. Portland School Dist., 303 Or 1 (1987).  In this case, the court chronicled the state’s history of evaluating negligence cases, juxtaposing the concepts of “duty” and “foreseeability.”  What followed was a relative sea change for litigators in the approach to negligence cases.  In most cases, the court determined the legal duty owed from one person to another would no longer provide the framework for liability; instead, the more amorphous concept of foreseeability would govern.  Thus the question became whether or not a party’s conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”  The court acknowledged foreseeability is typically a question for a jury, except for alleged conduct existing “at the outer margins.”  Id. at 12.

Of course, as the Fazollari court also held, the concept of “duty” remains where a special relationship exists between parties, such as doctor-patient, business owner-invitee, teacher-student, and others.  One of the more interesting intersections of duty and foreseeability lies in a business owner’s duty to protect its customers from the criminal conduct of third-parties.  Even though a special relationship exists between the parties, Oregon’s courts have held that the business owner’s duty is to protect the customer from “reasonably foreseeable” criminal conduct.  Therefore, despite the existence of a duty, these cases are still defined by the concept of foreseeability.

In theory, the requirement of foreseeability eliminates the problem of business owner from insuring the world against all possible criminal conduct.  However, as the specific duty is tied to foreseeability, many tenuous theories of liability have survived motion practice and proceeded to a jury.  After Fazollari, a common lament among defense attorneys is that courts are willing to accept any theory of foreseeability, demonstrating an extreme reluctance to provide defined boundaries.  Very few cases fall within the “outer margins” of foreseeability.

One example of business owner liability for criminal conduct is found in the matter of McPherson v. State, 210 Or App 602 (2007).  In this case, plaintiff sued defendant, an operator of an apartment complex.  Plaintiff, a tenant, was utilizing the apartment’s stand-alone laundry facility when an escaped state prisoner entered facility and sexually assaulted plaintiff.  The defendant moved for summary judgment, arguing the criminal conduct of the third-party was not reasonably foreseeable.  While the trial court granted summary judgment, the Court of Appeals reversed, noting, in particular, a history of crime in the area.  In reversing summary judgment, the court acknowledged precedent in this area involved a case-by-case “ad hoc” determination, resulting in “vague and impressionistic precepts.”  Id. at 617.

Despite the foregoing, courts have provided some limits of liability for a third-party’s criminal actions.  In Buchler v. Oregon Corrections Div., 316 Or 499 (1993), the court determined the State of Oregon would not be liable for criminal acts committed by a state prisoner who escaped from a work crew by stealing a van in which the supervisor left the keys.  Two days after escaping in the van, the prisoner shot two people, killing one of them.  The court determined that the act of leaving keys in the van did not amount to an unreasonable risk of harm. While this is a valuable case for defendants, it does not address what specific facts are necessary to otherwise render criminal conduct foreseeable to defendants.  In other words, it may have been foreseeable that a prisoner would escape, but the state did not act unreasonably in creating that risk.

In the more recent case of Stewart v. Kids Inc., 245 Or App 267 (2011), the Oregon Court of Appeals examined a scenario where a teenage girl was sexually assaulted by a third-party adult in defendant Dairy Queen’s bathroom.  The girl was present at Dairy Queen to work for a charity car wash sponsored by the other defendant, Kids, Inc.  The particularly tragic circumstance existed in this case where the adult met and “groomed” the girl online for months prior to the assault.  Upon learning the minor would be present at Dairy Queen for the car wash, the adult traveled there, lured the girl into the bathroom and assaulted her.

Plaintiff alleged that Dairy Queen and Kids, Inc. were liable for the criminal conduct of the adult.  In particular, plaintiff alleged that the defendants, in holding a carwash and restaurant open to the public where teenage girls would be present, should have anticipated that sexual predators may have met the girls online, and traveled to the restaurant with criminal intentions.  Plaintiff’s complaint specifically stated that “it was reasonably foreseeable to defendants, and each of them, that sexual predators might have made contact with the underage females via the internet who were attending the car wash and frequenting the Dairy Queen.”

This particular case presented an extremely tenuous theory of liability.  Both defendants moved to dismiss plaintiff’s complaint, seeking a ruling that the alleged criminal conduct was unforeseeable as a matter of law.  The court agreed, noting that plaintiff’s theory of liability was equivalent to stating that all crime is foreseeable, therefore defendants should be liable for facilitating the opportunity for crime to occur.  The crucial missing component in the complaint was plaintiff’s failure to allege any facts demonstrating precisely why defendants should have anticipated the particular criminal conduct. Simply alleging that crime occurred and the defendant should have known about it was inadequate.

This case is extraordinarily valuable on several levels.  First, it confirms the basic premise that a business owner is not required to insure its customers against all possible criminal conduct.  Instead, there must be specific facts pled showing why a business owner should have anticipated the particular criminal conduct that occurred and how the business acted unreasonably in failing to protect its customers.  Second, it provides a factual scenario, similar to the Buchler case, that assists in determining the “outer margins” of legally foreseeable conduct.  Some factual allegations attempting to establish foreseeability are simply insufficient.

Finally, the Stewart case illustrates the value of moving to dismiss a complaint at the outset of a case. Defense attorneys are often presented with the vexing question of whether or not to move for dismissal based upon a plaintiff’s complaint alone.  In moving too early, defendants can provide plaintiff with an opportunity to fix the complaint and shore up their theory of liability.  If this occurs, defendants may have missed a later opportunity for either summary judgment or judgment on the pleadings.  However, in this line of cases, it is paramount that the facts necessary to establish foreseeability are properly pled.  The nexus between the crime that occurred and a business owner’s ability to anticipate that crime is often dubious and provides one of the more successful avenues to defending these cases.  Fortunately, the Court of Appeals has added another boundary to the outer limits of foreseeability.