Babick v. Oregon Arena Corp.

• Decision Date: 28 April 1999
• Citation: 980 P.2d 1147,160 Or.App. 140
• Court: Oregon Court of Appeals
• Parties: Kenneth BABICK, Gary Moore and Jack K. Minzey, Jr., and others similarly situated, Appellants, v. OREGON ARENA CORPORATION, an Oregon corporation, Respondent. (9704-02797; CA A99542)

Page 1147

980 P.2d 1147

160 Or.App. 140

Kenneth BABICK, Gary Moore and Jack K. Minzey, Jr., and others similarly situated, Appellants, v. OREGON ARENA CORPORATION, an Oregon corporation, Respondent.

(9704-02797; CA A99542)

Court of Appeals of Oregon.

Argued and Submitted Oct. 9, 1998.

Decided April 28, 1999.

William B. Aitchison argued the cause for appellants. On the briefs were Megan E. Glor and Swanson, Thomas & Coon.

Gregory A. Zafiris, Portland, argued the cause for respondent. With him on the brief were Thomas M. Triplett and Schwabe, Williamson & Wyatt, P.C.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

De MUNIZ, P.J.

In this wrongful discharge and intentional infliction of emotional distress case, plaintiffs appeal from a judgment dismissing their complaint and first amended complaint for "fail[ing] to state ultimate facts sufficient to constitute a claim[.]" ORCP 21 A(8). We reverse in part and affirm in part.

In reviewing a dismissal under ORCP 21 A(8), we assume the truth of all well-pleaded factual allegations and give plaintiffs the benefit of all favorable inferences that may be drawn from the facts alleged. McGanty v. Staudenraus, 321 Or. 532, 536, 901 P.2d 841 (1995); see also ORCP 12 (pleadings shall be liberally construed).

We begin with the material facts in plaintiffs' complaint. ¹ Defendant owns the Memorial Coliseum, a large entertainment forum in Portland. Defendant hired plaintiffs to provide security and medical assistance at music concerts and other entertainment events held there. As part of their employment, plaintiffs received training from defendant to carry out their functions as security officers. That training included instruction on "radio procedures, * * * defensive tactics, the use of force, action to be taken in cases of suspected drug possession and the possession of alcohol by minors, [and] arrest protocol * * *." One night, some of those security officers were working at a music concert performed by the group known as Phish. At that concert, certain security officers arrested, or attempted to arrest, some members of the audience for engaging in assaultive behavior and illegal drug and alcohol possession. The arrests were consistent with the training they had received from defendant and were otherwise lawful under Oregon law. About a week later, defendant discharged the entire group of security officers, including those who were at the concert but did not make any arrests and those who were employed as security officers at the time but did not work at that concert. Defendant fired all the security officers in retaliation for the lawful law enforcement actions of some security officers at the Phish concert.

Additionally, during the Phish concert, the arresting security officers had to defend themselves against Phish employees and others who attacked them while performing their security functions. In response, defendant publicly berated those plaintiffs and forced them to release the audience members who had been arrested. Those arrestees were violent and intoxicated, and their release threatened the safety of those plaintiffs who made arrests. After the concert, defendants announced publicly that plaintiffs' law enforcement action would be a "marketing disaster" and, as noted, fired the whole group of plaintiffs for that action.

Plaintiffs filed claims for wrongful discharge and intentional infliction of emotional distress. On defendant's motion, the trial court dismissed plaintiffs' complaint in its entirety. This appeal followed.

Plaintiffs' first assignment of error concerns the wrongful discharge claim of the arresting security officers. Plaintiffs argue that the trial court erred in dismissing that claim because, although plaintiffs were at-will employees, their termination for lawfully arresting concert goers falls within the public duty or societal obligation exception to the at-will employment rule.

Normally, in the absence of a contractual, statutory or constitutional requirement to the contrary, an at-will employee may quit or be fired for any reason, rational or otherwise. Banaitis v. Mitsubishi Bank, Ltd., 129 Or.App. 371, 376, 879 P.2d 1288 (1994), rev. dismissed 321 Or. 511, 900 P.2d 508 (1995). The Supreme Court has established a narrow exception to that general rule, holding that an employee may not be discharged for reasons that contravene public policy. See Nees v. Hocks, 272 Or. 210, 218, 536 P.2d 512 (1975) ("We conclude that there can be circumstances in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages[.]"). Oregon courts generally have allowed such "public policy" tort actions in two situations: (1) when an employee is fired for performing an important public duty or societal obligation ² and (2) when an employee is fired for exercising private statutory rights that relate to the employment and that reflect an important public policy. ³ Delaney, 297 Or. at 14-16, 681 P.2d 114; Carlson v. Crater Lake Lumber Co., 103 Or.App. 190, 193, 796 P.2d 1216 (1990). However, the availability of a common law remedy is conditioned on the absence of adequate statutory remedies. Anderson, 131 Or.App. at 734, 886 P.2d 1068. Thus, if an existing statutory remedy adequately protects the employment-related right, such a remedy precludes an otherwise sufficient common law wrongful discharge claim. Id.

Determining whether a public duty exists is a question of law. That determination requires that we find a public duty, not create one, using "constitutional and statutory provisions or the case law of this or other jurisdictions." Banaitis, 129 Or.App. at 377-78, 879 P.2d 1288. Further, it is not necessary that a statute specifically obligate an employee to act in the way that precipitated the discharge. Id. at 377, 380, 879 P.2d 1288. Rather, a public duty may arise from evidence of a "substantial public policy that would * * * be 'thwarted' if an employer were allowed to discharge its employee without liability." Id. (internal citation omitted); see also Nees, 272 Or. at 219, 536 P.2d 512. Consequently, the determination that a public duty exists does not create an affirmative duty to act but merely acknowledges that society encourages certain activity.

Plaintiffs argue that the public duty involved here arises from the public policy of providing "a secure concert forum through a private security force." According to plaintiffs, that policy includes the prevention and deterrence of crime and, as evidence of that policy, they point to the Oregon Constitution and to a host of criminal laws and other statutes that regulate security officers. Defendant contends that the actual policy involved is the "private enforcement of the criminal laws through making arrests," which, according to defendant, is discouraged as a matter of public policy. (Emphasis defendant's.) Defendant contends that public policy discourages arrests by private citizens because ORS 133.225 limits such arrests to "crimes committed in the presence of the private person" and with probable cause, whereas ORS 133.220 and 133.310 grant a peace officer much broader authority to arrest. For the reasons that follow, we agree with plaintiffs.

It is beyond question that Oregonians value an orderly and safe community; and, as a matter of public policy, encourage the preservation of public order through the enforcement of criminal laws. See Or. Const., Art. I, § 15 (directing that criminal laws must, in part, be founded on the principle of "protection of society"); ORS chapters 131 to 170 (the Oregon Penal Code). Peace officers ⁴ are statutorily authorized to enforce the criminal laws, ORS 133.220(1) and (2), and generally are the persons who make arrests. However, the legislature also has extended explicit arrest authority to private citizens, including authority for the use of justifiable force. ORS 133.220(3); ORS 133.225(2). In empowering private citizens to make arrests, the public has tacitly recognized that peace officers may not be present in every situation where criminal laws are broken and has demonstrated a common concern for law enforcement in such situations.

Other statutes, as they relate to the circumstances here, further define the public policy involved. As pleaded by plaintiffs, defendant hired and trained plaintiffs solely to maintain order at a large, public music concert and, if necessary, to make arrests to effectuate that purpose. In such large public gatherings, the potential for public disorder is increased. Further, it is reasonable to infer from defendant's hiring of plaintiffs that peace officers would not be present or not be present in sufficient numbers at the concert to ensure the preservation of public order. In those circumstances, Oregonians have expressed a common concern for reliable and effective private law enforcement, as demonstrated by ORS 181.870 through ORS 181.991, which regulate the licensing and training of persons who provide security services at such "public activities." ⁵ See also OAR 259-060-0005 ("The objectives of [these private security providers rules] are to * * * rais[e] the level of competence of private security personnel[.]").

It is apparent from the above laws that Oregonians value an orderly and safe community. The importance of maintaining that condition is reflected in laws criminalizing disruptive behavior and in laws giving private citizens the power to arrest. That public concern is heightened in large public gatherings, where the potential for social disorder is increased and where police officers might not necessarily be present. In those circumstances, Oregonians have shown a common concern for reliable protection by citizen officers and value the order that derives from such law enforcement functions. Thus, we hold that, because plaintiffs were discharged for taking steps to maintain order at a large, public event, plaintiffs'...