Christensen v. Epley
| Decision Date | 16 October 1978 |
| Docket Number | No. 14561,14561 |
| Citation | 585 P.2d 416,36 Or.App. 535 |
| Parties | Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Deceased, Appellant, v. James B. EPLEY, Tim K. Waller, Sherrie Murphy, and Umatilla County, Respondents, and Daryl Thompson, Defendant. ; CA 9092. |
| Court | Oregon Court of Appeals |
W. Eugene Hallman, Pendleton, argued the cause for appellant. With him on the briefs were Robert T. Mautz and Mautz, Hallman & Rees, Pendleton.
I. Franklin Hunsaker, III, Portland, argued the cause for respondents. With him on the brief were R. R. Bullivant, Douglass M. Hamilton, Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, and Corey, Byler & Rew, Pendleton.
Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.
This is a wrongful death action, 1 on behalf of the estate of a Pendleton police officer, in which plaintiff seeks to recover damages from Umatilla County and three of its employees for negligently causing decedent's death.
The claims against the individual defendants arise from their duties at the Northeast Oregon Regional Youth Center. Defendant Murphy was a matron at the Center and defendants Epley and Waller were allegedly the supervisors who assigned Murphy to her duties. The liability of defendant Umatilla County is based upon the doctrine of Respondeat superior.
Defendants demurred to plaintiff's second amended complaint contending that it failed to allege facts giving rise to a legal duty owed to the decedent and that, in any event, defendants' negligence was not the proximate cause of decedent's death. In a separate demurrer, defendants Epley and Waller raised the defense of immunity, contending that the claim is barred because it is "based upon the performance of or the failure to exercise or perform a discretionary function." ORS 30.265(3)(c). Defendants Murphy and Umatilla County did not join in this demurrer and have not yet raised the defense of immunity. Therefore, the defense of immunity is not presented at this stage of the case. Comley v. State Bd. of Higher Ed., 35 Or.App. 465, 468-69 (n.3), 582 P.2d 443 (1978). The circuit court sustained both demurrers and entered judgment for defendants when plaintiff declined to plead further. Plaintiff appeals.
We take the facts from the allegations of plaintiff's second amended complaint which, for purposes of appeal, we assume to be true. Defendants Epley and Waller assigned defendant Murphy to work as the only matron on duty at the Youth Center, a juvenile detention center, during the late evening hours of February 5, 1976. She was responsible for maintenance of security and safety in the Center. In the course of her shift, Murphy permitted a male juvenile, Daryl Thompson, to enter the Youth Center to visit one of the female residents. Murphy knew that Thompson had just run away from home in violation of a juvenile court order and she knew or should have known that he had a close personal relationship with the female resident and that together they had previously stolen a car and fled the county. Shortly after entering the Youth Center, Thompson helped the female resident to escape.
The decedent, a policeman, encountered the two youths immediately following the escape and while they were still attempting to flee from the scene. Thompson then attacked the decedent with a hunting knife, inflicting fatal wounds.
Plaintiff alleges that decedent's death was proximately caused by the negligence of defendant Murphy in one or more of the following particulars:
Plaintiff further alleges that decedent's death was also proximately caused by the following negligent act of defendants Waller and Epley.
"In assigning defendant Sherrie Murphy to work alone in the Northeast Oregon Regional Youth Center at night although he knew she was not adequately trained, inexperienced and therefore unfit for such assignment."
We hold that the foregoing allegations state a cause of action against defendants Murphy and Umatilla County and therefore it was error to sustain the demurrer as to them. We further hold that the claim against defendants Waller and Epley is barred by the discretionary act exception to the Tort Claims Act and that their demurrer on that ground was properly sustained. Because we hold that Waller and Epley are immune, we do not consider whether plaintiff has stated a cause of action against them.
Actionable negligence arises from the breach of a duty owed by one person to another. Thus, to state a cause of action for negligence, plaintiff's complaint must state facts which imply such a duty. Klerk v. Tektronix, Inc., 244 Or. 10, 13, 415 P.2d 510 (1966). Whether a duty exists in a given case is a question of law for the court. See, Allen v. Shiroma/Leathers, 266 Or. 567, 514 P.2d 545 (1973); Dewey v. A. F. Klaveness & Co., 233 Or. 515, 524, 379 P.2d 560 (1963) (O'Connell, J., specially concurring). The alleged duty in this case, in summary, is that of a custodian of a secure facility for juvenile offenders to take reasonable care to prevent escape and, upon escape, to alert the police.
Generally, every individual owes a duty to exercise reasonable care in all undertakings in order to avoid foreseeable risks of harm to persons who are within the zone of danger created by the undertaking. See, Allen v. Shiroma/Leathers, 266 Or. at 560, 514 P.2d 545. The duty does not ordinarily extend to the prevention of risk of harm by the acts of third persons, however, unless a special relation exists between defendant and either the actor or the person harmed. See Prosser, Law of Torts, ch. 9, § 65, p. 327 (4th ed. 1971). The scope of such a duty is defined in Restatement (Second) Torts, § 315.
It is generally held that a person charged with the custody of a dangerous individual has the duty to exercise reasonable care to prevent his charge from injuring a third person. See, e. g., State v. Silva, 86 Nev. 911, 478 P.2d 591, 44 A.L.R.3d 891 (1970); Webb v. State, 91 So.2d 156 (La.App.1956). In those cases, the duty is said to flow from the special relationship between the custodian and the prisoner. Thus, Restatement (Second) Torts, § 319, states:
"One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."
In this case, defendant Murphy contends that the requisite special relationship did not exist between herself and Thompson and thus defendant owed plaintiff no duty because the harm to plaintiff was not caused by defendant's charge, but by Thompson who aided in the escape of defendant's charge.
Such a conclusion is not logically supportable. Defendant Murphy's special relation with the inmate implies a duty to prevent the escape of the inmate. Liability for breach of the duty of prevention would include all natural consequences of an escape. It is reasonable to expect that an escape will be accomplished by use of confederates and force. That decedent was killed by an aider and abettor of the escape rather than by the escapee herself, does not necessarily eliminate defendant's legal responsibility as to that death.
A similar duty to prevent escape is also implied by the special relation between defendant and the decedent, Restatement (Second) Torts, § 315(b). By undertaking to oversee incarcerated individuals whose escape would pose a danger to others, the defendant assumes a responsibility which places her in a special relationship with those persons who may be harmed by negligent performance of her duties. Whether that class includes the entire general public, we need not decide; it would include police officers who suffer a special danger in relation to escapees.
Therefore, we hold that plaintiff has alleged facts which establish the requisite legal duty.
A valid complaint for negligence must allege facts which establish that defendant's unreasonable conduct was a substantial factor in causing plaintiff's injury. Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970); Babler Bros. v. Pacific Intermountain Express Co., 244 Or. 459, 415 P.2d 735 (1966). A causal link between the negligent act and the harm, I. e., something more than opportunity for injury, must be alleged.
Plaintiff alleged that decedent was stabbed immediately following the escape of the girl while the two youths were attempting to flee the scene. The allegation does not say explicitly "in the course of the escape," but given a fair reading, it implies that decedent's death was directly related to the escape....
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Christensen v. Epley
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...on demurrer for defendant because plaintiff's complaint did state a claim for negligence against defendant. Christensen v. Epley, 36 Or.App. 535, 585 P.2d 416 (1978). In Christensen I, the Court of Appeals held that plaintiff's complaint alleged sufficient facts to establish a legal duty ow......