Bailey v. Lewis Farm, Inc.

• Decision Date: 26 July 2006
• Docket Number: A124145.,0211-11957.
• Citation: 207 Or. App. 112,139 P.3d 1014
• Parties: Jerome E. BAILEY, Appellant, v. LEWIS FARM, INC., an Oregon corporation, and PACCAR, Inc., a Delaware corporation, dba Kenworth Motor Truck Co., Defendants, and May Trucking Co., Inc., an Idaho corporation, Respondent.
• Court: Oregon Court of Appeals

139 P.3d 1014

207 Or. App. 112

Jerome E. BAILEY, Appellant, v. LEWIS FARM, INC., an Oregon corporation, and PACCAR, Inc., a Delaware corporation, dba Kenworth Motor Truck Co., Defendants, and May Trucking Co., Inc., an Idaho corporation, Respondent.

0211-11957.

A124145.

Court of Appeals of Oregon, En Banc.

Argued and Submitted June 20, 2005.

Resubmitted En Banc June 7, 2006.

Decided July 26, 2006.

Appeal from Circuit Court, Multnomah County.

Henry Kantor, Judge.

Gerald C. Doblie, Portland, argued the cause for appellant. With him on the briefs was Doblie & Associates.

Gordon T. Carey, Jr., Portland, argued the cause and filed the brief for respondent.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, ORTEGA, and ROSENBLUM, Judges.

PER CURIAM.

ORTEGA, J., concurring.

Plaintiff appeals the dismissal under ORCP 21 A(8) of his claim for negligence against defendant May Trucking Company (May). The sole issue is whether plaintiff pleaded a viable negligence claim against May under the "general foreseeability" analysis of Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). We affirm by an equally divided court, and I write separately to explain why I concur in that result.

For purposes of reviewing a trial court's order of dismissal pursuant to ORCP 21 A(8), we accept all of the facts alleged in the complaint as true and give plaintiff the benefit of all reasonable inferences that may be drawn from the facts alleged. Brewer v. Dept. of Fish and Wildlife, 167 Or.App. 173, 176, 2 P.3d 418 (2000), rev. den., 334 Or. 693, 56 P.3d 405 (2002). Plaintiff alleged that, while he was driving westbound on Oregon State Highway 6 in November 2000, a Kenworth tractor-trailer unit heading in the opposite direction lost its left rear axle assembly, causing the dual wheels and tires to come off, bounce across the highway, and collide with the tractor-trailer unit that plaintiff was driving. Plaintiff's vehicle then careened down an embankment and became engulfed in flames, causing serious injuries to plaintiff.

Plaintiff filed a negligence action against three defendants: the owner of the Kenworth, its manufacturer, and May, a prior owner.¹ May had sold the Kenworth to a nonparty a year before the accident, and the Kenworth had changed hands at least once more after that sale. The pertinent allegations in plaintiff's complaint against May are as follows:

"27.

"[May] was the owner of the Kenworth * * * prior to its being purchased by [the current owner]. May purchased the Kenworth * * * when it was new or nearly new, and owned it until selling it in or about November, 1999. The truck was then owned by other non-parties prior to being sold to [the current owner] in or about January, 2000. During the time May * * * owned the truck, it was driven in excess of 500,000 miles.

"28.

"On or about August 8, 1997, maintenance work was performed on the rear axle shaft and the drive axle on the Kenworth * * *, involving one or more spindle nuts.

"29.

"The manufacturer of the Kenworth * * * provided a manual with the vehicle which recommended the following maintenance of the rear axle assembly and bearings:

"a) That the bearings be cleaned and repacked every 25,000 miles; and

"b) That every 100,000 miles, the bearings be disassembled, cleaned, inspected and refilled or repacked with clean lubricant; the bearing play be readjusted; and the rear axle flange nuts be torqued.

"30.

"[May] was negligent in failing to follow the manufacturer's recommendations regarding maintenance of the rear axle assembly and bearings, in that May * * * failed to perform any of the recommended services during more than 500,000 miles of use. As a result of this failure, the condition of the rear axle assembly and bearings deteriorated, which deterioration was a substantial contributing cause of the failure of the rear axle as described above, and of plaintiff's damages.

"31.

"[May] was negligent in maintaining the truck in that any maintenance to the rear axle shaft and/or drive axle failed to result in a truck that was safe to operate."

A necessary starting point for any discussion of the sufficiency of a complaint in a negligence case is the Supreme Court's Fazzolari decision. There, the court imparted the following formulation of the circumstances in which Oregon law imposes liability on a defendant for harm caused by its conduct:

"[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff."

303 Or. at 17, 734 P.2d 1326. As that passage indicates, if the plaintiff invokes a special status, relationship, or standard of conduct, then that relationship may create, define, or limit the defendant's duty to the plaintiff. Oregon Steel Mills, Inc. v. Coopers Lybrand, LLP, 336 Or. 329, 340-41, 83 P.3d 322 (2004). In the absence of a special status, relationship, or standard that sets the scope of a defendant's duty to a plaintiff, liability for harm that a defendant's conduct causes another is analyzed in terms of the concept of "reasonable foreseeability," id. at 340, 83 P.3d 322, or "general foreseeability," Slogowski v. Lyness, 324 Or. 436, 441, 927 P.2d 587 (1996). Either formulation — duty or foreseeability — describes how the law limits the circumstances and conditions under which one member of society may expect another to pay for a harm suffered. Oregon Steel Mills, Inc., 336 Or. at 342, 83 P.3d 322.

In this case, because plaintiff did not plead a special status, relationship, or standard of conduct, I inquire into reasonable foreseeability—that is, whether plaintiff has pleaded facts indicating a foreseeable risk of harm to plaintiff and conduct by May that was unreasonable in light of that risk. See id. at 340, 83 P.3d 322.

Whether an injury is reasonably foreseeable generally presents an issue of fact and, therefore, is not typically resolvable on a motion to dismiss. See generally Cunningham v. Happy Palace, Inc., 157 Or.App. 334, 337, 970 P.2d 669 (1998), rev. den., 328 Or. 365, 987 P.2d 510 (1999). However, there are some circumstances where we will conclude, as a matter of law, that no reasonable factfinder could find that the harm that befell the plaintiff was a reasonably foreseeable consequence of the defendant's conduct. See Hefty v. Comprehensive Care Corporation, 307 Or. 247, 253, 766 P.2d 1026 (1988) (concluding as a matter of law that the minor plaintiff's injuries in a motorcycle accident were not a reasonably foreseeable consequence of the defendant alcohol treatment provider's conduct of discharging the plaintiff against medical advice and failing to notify her parents of her discharge). In order to state a negligence claim under principles of general foreseeability, the plaintiff's complaint must allege facts affording a reasonable factfinder a basis for determining

"`(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 plaintiff's harm, and (5) that [the] plaintiff was within the class of persons and [the] plaintiff's injury was within the general type of potential incidents and injuries that made [the] defendant's conduct negligent."

Slogowski, 324 Or. at 441, 927 P.2d 587 (quoting Solberg v. Johnson, 306 Or. 484, 490-91, 760 P.2d 867 (1988)).

Oregon Steel Mills, Inc. provides a recent example of circumstances where the Supreme Court concluded that no reasonable factfinder could find that the harm that befell the plaintiff was a reasonably foreseeable consequence of the defendant's conduct. There, the plaintiff steel company was planning to make a public offering of its stock and debt. 336 Or. at 333, 83 P.3d 322. Because of the need to correct the defendant accounting firm's errors in financial statements filed with the SEC, the offering was delayed for about a month. Id. Over the course of that month, the price of the stock declined—and the plaintiff then sought to recover the difference between the price it actually received for the stock and the price it would have received on the earlier date, that is, the date the stock would have issued but for the defendant's negligence. Id. at 333-34, 83 P.3d 322.

The Supreme Court concluded that the decline in stock price was, as a matter of law, not reasonably foreseeable, so the defendant could not be liable for damages based on that decline. Id. at 348, 83 P.3d 322. The court explained that, even though the defendant's conduct caused the delay in the offering that in turn led to an adverse result for the plaintiff, "the intervening action of market forces on the price of [the] plaintiff's stock was the `harm-producing force[.]'"<sup>2</sup> Id. at 345, 83 P.3d 322. In the court's view, "[the] defendant's actions did not `cause' the decline in the stock price so as to support liability for that decline." Id. Accordingly, "As a matter of law, the risk of a decline in [the] plaintiff's stock price * * * was not a reasonably foreseeable consequence of [the] defendant's negligent acts * * *." Id.

The court noted parallels between that case and a prior decision, Buchler v. Oregon Corrections Div., 316 Or. 499, 853 P.2d 798 (1993). Oregon Steel Mills, Inc., 336 Or. at 344-45, 83 P.3d 322. In Buchler, the court held, as a matter of law, that a prison escapee's crimes committed two days after his escape were not reasonably foreseeable consequences of a prison employee's failure to remove the keys from the prison van in which the inmate escaped. 316 Or. at 511-12, 853 P.2d 798. The court...