Buchler v. State By and Through Oregon Corrections Div.

Decision Date04 June 1993
Citation316 Or. 499,853 P.2d 798
PartiesAlbert BUCHLER, Personal Representative for the Estate of Beverly A. Buchler, Deceased, Respondent on Review, v. STATE of Oregon, By and Through the OREGON CORRECTIONS DIVISION; Oregon Department of Forestry, Petitioners on Review, and County of Tillamook; David Wilson, Sheriff of Tillamook County, Defendants. Charles A. SEELING, Respondent on Review, v. STATE of Oregon, By and Through OREGON CORRECTIONS DIVISION; Oregon Department of Forestry, Petitioners on Review, and County of Tillamook; David Wilson, Sheriff of Tillamook County; and Marjorie Miller, Defendants. CC 87-2012, 87-2024; CA A60439; SC S37882.
CourtOregon Supreme Court

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for petitioners on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Ted E. Runstein, Portland, argued the cause for respondents on review. With him on the response were Dana L. Barnes, Portland, and John Tuthill, Tillamook.

FADELEY, Justice.

In these negligence actions, plaintiffs seek damages from the state for harm caused by a state prisoner who escaped from custody. The prisoner was a convicted felon, placed by the corrections division as a member of a work crew of a forest camp in a remote rural area. He left the work site without permission by taking and driving away the state's van, in which the ignition keys had been left by the crew supervisor. Defendant state advised the Tillamook County Sheriff and the Oregon State Police of the escape.

Two days later and 50 miles from the point of escape in the van, the prisoner shot two people with a gun that he had stolen in a burglary of his mother's residence, which was near the place of the shootings. One of his victims died from that gunshot. The prisoner's prior record included the property crimes of unauthorized use of motor vehicles and burglary but not any crimes of violence. The record in this case does not show that defendant 1 had any knowledge that the prisoner had previously caused bodily harm to anyone, although defendant was aware that the prisoner may have had a "violent temper" during childhood and that he had a long-standing drug problem.

Plaintiffs' complaints alleged that defendant was negligent as follows:

--in permitting the prisoner to escape;

--in failing to recapture the prisoner; and

--in failing to warn the public in general and particularly persons, such as plaintiffs, located near the home of the mother of that prisoner, that the prisoner had escaped.

No contention is made that defendant had knowledge of the location of the mother's home or of any burglary there. No dispute arises concerning whether defendant was unaware of those facts.

The trial judge granted the defendant's motion for summary judgment, opining that there was no issue of fact for a jury to consider. The trial court relied on Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), to support the idea that the injury inflicted was not within the scope of legal foreseeability and that defendant was not liable. The trial court explained:

"Here the only connecting link between the escaping prisoner * * * and the plaintiffs * * * is that the two plaintiffs live about a mile away from the home of the prisoner's mother's home which he burglarized to get the gun with which he wounded [one plaintiff] and killed [the other plaintiff's decedent] some two days after the escape. The Court finds that this connection is not sufficient as a matter of law, given that the State of Oregon is not an insurer to all. No special relationship existed between the two plaintiffs and the state prisoner."

The Court of Appeals reversed the summary judgment for defendant. A majority of the Court of Appeals panel held:

(1) An escaped felon presents a "generalized risk" of harm to anyone contacted by an escaped prisoner on the run;

(2) all members of the public, including plaintiffs, were endangered by that generalized risk;

(3) a jury could find that creating the risk by permitting the escape and then failing to warn the public adequately of the escape or to conduct an extensive search for the escaped prisoner was unreasonable, given the magnitude of the risk and the apparent low cost of avoiding it; and,

(4) a jury could determine that the harm to plaintiffs was a reasonably foreseeable result of defendant's negligence in creating and perpetuating a risk of harm.

The Court of Appeals also held that discretionary immunity was not available to defendant, because the negligent acts and omissions claimed were not policy decisions. Buchler v. Oregon Corrections Div., 104 Or.App. 547, 803 P.2d 733 (1990).

A third member of the Court of Appeals panel joined in the result--reversal of the summary judgment--but did so on the basis that a "special relationship" created an obligation of defendant to protect the public. That "relationship" and obligation arose, in the opinion of the third member, because defendant had control of the prisoner before his escape, even though the prisoner previously had not demonstrated highly dangerous conduct.

However, the Court of Appeals upheld the trial court in another respect. It held that "it was proper to strike the allegations relating to the [escaped prisoner's] mother's home" because "[p]laintiffs did not offer any evidence that defendant knew or should have known that [the escaped prisoner's] mother lived in the vicinity of the work camp." Buchler v. Oregon Corrections Div., supra, 104 Or.App. at 552 n. 4, 803 P.2d 733.

We reverse the decision of the Court of Appeals and affirm the trial court's summary judgment because the facts established on the motion for summary judgment do not create liability under the scope of a custodian's duty to the public concerning a prisoner who escapes, because no duty to warn arises in the absence of more specific knowledge of the risk of the harm that befell plaintiffs, and also because any negligence of defendant that facilitated the earlier escape did not produce the harm that plaintiffs suffered.

The general allegations of the complaint require this court first to analyze whether a special relationship between the plaintiffs and the defendant is alleged to exist due to "a status, a relationship, or a particular conduct that creates, defines or limits the defendant's duty." Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or. at 19, 734 P.2d 1326. It is only when there is no such special relationship, status or conduct that Fazzolari 's general foreseeability principle, about which there will be more consideration later in this opinion, comes into play. Ibid.

There is no special relationship between plaintiffs and defendant custodian in this case, within the meaning of that term in Fazzolari. That case refers to a relationship between a plaintiff and a defendant, like the relationship between school officials and a student required to attend, or between a landlord and a tenant. If plaintiffs had been other prisoners, or even perhaps guards, injured in the course of an escape, that sort of relationship might perhaps be made out, but that is not this case. 2 See Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or. at 17, 734 P.2d 1326 (where the "special relationship" was between defendants who were school officials and plaintiff-student who was compelled to attend defendants' school). However, there is a status occupied by defendant that raises duties of care. Defendant was custodian of a prisoner.

In Park v. Hoffard, 315 Or. 624, 631-32, 847 P.2d 852 (1993), this court looked to law related to the status of a landlord and the special relationship between a landlord and a tenant to define the scope of liability for harm occurring outside the rented property but which is related to the tenant's conduct on the property. That case involved a known dangerous biting dog that escaped repeatedly from the rental premises. The court held that Restatement (Second) of Torts section 379A (1965) "states an appropriate rule with respect to a landlord's liability for physical harm to persons off the rental property." 315 Or. at 632, 847 P.2d 852. In the present case, we first consider liability arising from defendant's status as jailer because the parties invoke that status--of a jailer having custody of a prisoner--which is covered in section 319, Restatement (Second) of Torts (1965).

It appears that liability under section 319 is an exception to a general rule of non-liability for the conduct of others. Section 315 of the Restatement (Second) of Torts (1965) states the general principle that "[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another" unless there is a special relationship between the actor (defendant) and an injured party (plaintiff). That rule of common law described in section 315 applies in this case to support exclusion of liability because the actor is the defendant and plaintiffs are members of the general public. Defendant's status or "relationship" is that of jailer to the prisoner. The jailer has no special relationship to members of the public in general. The commentary to section 315 states that other more specific rules may also apply, depending on various fact patterns that may exist, and lists other Restatement sections covering those other fact patterns. None of the sections describing a duty arising out of a special relationship between the actor and the injured party applies in this case, where defendant is the state and plaintiffs are simply members of the general public.

Section 319 describes an exception to the rule in section 315 declaring liability for one in the status of a jailer. Section 319 states a duty that may exist between a defendant jailer having custody of a prisoner and third persons whom the prisoner may harm. That section provide...

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