Cunningham v. Happy Palace, Inc.

Decision Date25 November 1998
Citation970 P.2d 669,157 Or.App. 334
PartiesLinda CUNNINGHAM, Appellant, v. HAPPY PALACE, INC., Respondent. 9608-06619; CA A97860.
CourtOregon Court of Appeals

Jeffrey S. Merrick, Portland, argued the cause for appellant. With him on the briefs was Williams & Troutwine.

Julie D. Elkins, Portland, argued the cause for respondent. With her on the brief was Cavanagh & Zipse.

Before WARREN, Presiding Judge, and EDMONDS and ARMSTRONG, Judges.


Plaintiff appeals from a judgment entered after the trial court granted summary judgment to defendant on plaintiff's claims for negligence and breach of contract. Plaintiff was sexually assaulted after she was picked up while hitchhiking. Defendant owns the restaurant and bar outside which plaintiff was hitchhiking. In her complaint, plaintiff alleged that defendant: (1) negligently ejected her from the bar and into a position of danger; (2) breached an agreement with plaintiff that it would provide her with a free cab ride home if she were to become intoxicated while at the bar; (3) negligently misrepresented that it would provide free cab rides home to intoxicated patrons; and (4) negligently trained its employees in identifying and dealing with overly intoxicated patrons.

The trial court concluded that there was no evidence from which a jury could find that defendant reasonably could have foreseen that its conduct would result in injury to plaintiff as a consequence of the criminal acts of third parties. The court further determined that there was no evidence from which a jury could find that defendant offered or represented that it would provide free cab service to its patrons, or that plaintiff accepted such an offer or relied on such a representation. We conclude that there is evidence in the record sufficient to raise a disputed issue of fact on plaintiff's first and fourth claims for relief related to her ejection from the bar. Accordingly, we reverse and remand on those claims. 1

We consider the facts in the summary judgment record in the light most favorable to plaintiff. On December 31, 1995, plaintiff went to defendant's restaurant and bar to celebrate New Year's Eve. Plaintiff was a regular patron of the bar. She arrived at approximately 5:30 p.m., having been driven to the bar by a neighbor. Plaintiff arrived with the intention of calling her daughter for a ride home when she was ready to leave or of taking a cab provided free of charge by defendant. While she was at the bar, plaintiff became very intoxicated. Sonny Gunter, who had accompanied a band playing at the bar that night, described plaintiff in an affidavit as "so drunk people were making fun of her." Gunter further stated that plaintiff's conversation was slurred, her gait unsteady and that "she was trying to walk with one shoe on and one shoe off." At one point, plaintiff vomited in the bathroom.

At approximately 11:30 p.m., plaintiff was waiting in line at a pay telephone inside the entrance to the bar. A bouncer employed by defendant approached plaintiff, told her that she had to leave the bar and, putting his hand on her arm, escorted her outside. He did not allow plaintiff to make a telephone call, nor did he offer to arrange for a cab to take her home. Gunter followed plaintiff out of the bar out of concern for plaintiff and sat outside with her for approximately ten minutes. Gunter then reentered the bar to use the bathroom. After Gunter left, plaintiff began hitchhiking on the street adjacent to defendant's establishment. She was picked up by three men, who drove her to a remote location, where they raped and sodomized her.

Summary judgment is appropriate when the moving party is entitled to judgment as a matter of law. ORCP 47 C. A dispute in a negligence action about whether an injury was foreseeable generally presents an issue of fact and, therefore, is not a likely candidate for summary judgment. There are some cases, however, in which no reasonable factfinder could find the risk of harm to be reasonably foreseeable. Dodge v. Darritt Construction, Inc., 146 Or.App. 612, 614-15, 934 P.2d 591 (1997), rev. den. 326 Or. 530 (1998). In such cases, summary judgment is appropriate. See, e.g., Buchler v. Oregon Corrections Div., 316 Or. 499, 511 n. 8, 853 P.2d 798 (1993) (noting that Fazzolari v. Portland School District No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), does not stand for the proposition that all negligence claims based on general foreseeability must reach jury).

The dispositive issue in this case is whether, by forcing plaintiff to leave the bar before she could telephone her daughter for a ride home, it was foreseeable that defendant was placing plaintiff in harm's way. If it were reasonably foreseeable that plaintiff would come to harm as a result of criminal acts by others, then defendant can be held liable for that harm. The only question, then, is whether defendant could have foreseen that plaintiff would fall victim to a criminal act. 2

Plaintiff asserts that, because she was highly intoxicated, she was more likely to be a crime victim. In response, defendant argues that it cannot be held responsible for injuries suffered by plaintiff as a result of her voluntary intoxication. Defendant misunderstands the gravamen of plaintiff's complaint. Plaintiff has not argued that the mere fact of her intoxication made her injury foreseeable but, rather, that when defendant affirmatively acted to eject her from the premises and thereby prevented her from securing safe passage home, defendant set in motion the events that led to her injury. 3 In order to prevail on that theory, plaintiff must establish that defendant's act did more than merely facilitate the criminal acts of third parties. The Oregon Supreme Court has stated that a defendant cannot be held liable for all intervening intentional criminal conduct that might conceivably occur because of defendant's acts or failures to act. "[M]ere 'facilitation' of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it." Buchler, 316 Or. at 511-12, 853 P.2d 798 (rejecting "facilitation" rationale of Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987)). The court in Buchler held that, in order to survive a defendant's motion for summary judgment in a case involving the criminal acts of third parties, there must be facts in the record to support a conclusion that the...

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21 cases
  • Mcpherson v. Oregon Dept. of Corrections, A126885 (Control).
    • United States
    • Oregon Court of Appeals
    • January 31, 2007
    ...207, 222-25, 979 P.2d 273 (1999), aff'd by an equally divided court, 335 Or. 403, 69 P.3d 1232 (2003); Cunningham v. Happy Palace, Inc., 157 Or.App. 334, 337-39, 970 P.2d 669 (1998), rev. den., 328 Or. 365, 987 P.2d 510 (1999). We therefore must now turn to whether, on the undisputed facts ......
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    ...v. Oregon Dept. of Corrections, 159 Or.App. 207, 979 P.2d 273,rev. allowed 329 Or. 479, 994 P.2d 127 (1999); Cunningham v. Happy Palace, Inc., 157 Or.App. 334, 970 P.2d 669 (1998),rev. den. 328 Or. 365, 987 P.2d 510 (1999); Allstate Ins. Co. v. Tenant Screening Services, Inc., 140 Or.App. 4......
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    ...could have foreseen that plaintiff would fall victim to criminal conduct as a result of its actions. See Cunningham v. Happy Palace, Inc., 157 Or.App. 334, 340, 970 P.2d 669 (1998) (reversing summary judgment because there was “evidence from which a jury could find that defendant could have......
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