Dodge v. Darritt Const., Inc.

• Decision Date: 05 March 1997
• Citation: 934 P.2d 591,146 Or.App. 612
• Parties: Betty L. DODGE, Appellant, v. DARRITT CONSTRUCTION, INC., a Washington corporation, registered to do business in Oregon, Respondent. 95-2021; CA A93209.
• Court: Oregon Court of Appeals

Page 591

934 P.2d 591

146 Or.App. 612

Betty L. DODGE, Appellant, v. DARRITT CONSTRUCTION, INC., a Washington corporation, registered to do business in Oregon, Respondent.

95-2021; CA A93209.

Court of Appeals of Oregon.

Argued and Submitted Nov. 13, 1996.

Decided March 5, 1997.

Allison Tyler argued the cause and filed the brief for appellant.

Ruth Casby Rocker argued the cause for respondent. With her on the brief were Janet M. Schroer and Hoffman, Hart & Wagner, Portland.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

In this negligence action, the trial court ruled on summary judgment that, as a matter of law, plaintiff's injuries were not caused by a foreseeable risk of harm arising from defendant's conduct or omissions. ¹ ORCP 47. Plaintiff appeals, and we reverse.

We consider the facts in the summary judgment record in the light most favorable to plaintiff. ORCP 47 C. During the spring of 1993, plaintiff was employed as a housekeeper for Columbia Memorial Hospital and was working within the scope of her employment when her injury occurred. Defendant was a contractor performing construction work at the hospital. Part of that work involved the pouring of a concrete slab foundation to abut the existing slab foundation of the east wing of the hospital. To perform that task, defendant's employees removed a section of the siding of the existing east wing of the hospital.

On March 14, 1993, water from a rainstorm pooled on the new slab and seeped into the hospital. For purposes of this motion, the parties assume that the water in the hospital resulted from defendant's negligence. Plaintiff's responsibilities as a housekeeper included cleaning up liquids by using vacuum cleaners, mops and other absorbent materials. As part of her job, plaintiff emptied containers filled with liquids. The hospital directed plaintiff to clean up the water that had collected, and plaintiff used a "wet-vac" with an eight-gallon reservoir to accomplish the task. After she finished cleaning up the water and while emptying the "wet-vac" into a bathtub, she injured her neck and right shoulder. The issue is whether plaintiff's injury was a foreseeable consequence of defendant's allegedly negligent conduct in permitting the water to seep into the hospital.

Although the issue of whether an injury is foreseeable is usually one reserved for the fact finder, there are some cases in which no reasonable fact finder could find the risk of harm foreseeable. Hefty v. Comprehensive Care Corporation, 307 Or. 247, 253, 766 P.2d 1026 (1988). ² The test is whether a reasonable fact finder could decide that defendant's "conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). In this case, plaintiff was not injured directly as a result of the accumulation of water. She was injured after she picked up the "wet-vac" to pour the collected water into the bathtub. The negligently created condition no longer existed when she was injured. In the light of those facts, the question is whether defendant's negligence created a generally foreseeable risk of the kind of harm that befell plaintiff.

"In order to state a negligence claim under principles of general foreseeability, plaintiff's complaint

" 'must allege facts from which a factfinder could determine (1) that 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 defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff's injury was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.' " Slogowski v. Lyness, 324 Or. 436, 441, 927 P.2d 587 (1996) (quoting Solberg v. Johnson, 306 Or. 484, 490-91, 760 P.2d 867 (1988); emphasis supplied).

Although the resolution of what is a generally foreseeable risk is fact-specific, two of the Supreme Court's decisions are instructive in deciding that issue in this case. In Stewart v. Jefferson Plywood Co., 255 Or. 603, 609-10, 469 P.2d 783 (1970), the court addressed whether the plaintiff's injury and the manner of its occurrence were foreseeable risks. In that case, the plaintiff was injured when, while fighting a fire that had been caused by the defendant's employee, he fell through a skylight that had been covered in a manner that made it appear to be a solid part of the roof. Id. at 605-06, 469 P.2d 783. The court held that the risk of harm was foreseeable and explained:

"This idea of limiting liability to that which can be anticipated is formulated into the foreseeability test for negligence, which states that one is negligent only if he, as an ordinary reasonable person, ought reasonably to foresee that he will expose another to an unreasonable risk of harm. Foreseeability is an element of fault; the community deems a person to be at fault only when the injury caused by him is one which could have been anticipated because there was a reasonable likelihood that it could happen.

"2. Thus fault, as the term is usually understood, is not associated with conduct which causes harm through the concatenation of highly unusual circumstances. If, in our appraisal of the community's conception of fault, we find that the conduct in question clearly falls outside the conception, we are charged with the duty of withdrawing the issue from the jury.

"3. The specific question before us is, then, whether plaintiff's injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine that the injury was reasonably foreseeable." 255 Or. at 609-10, 469 P.2d 783. (Footnotes omitted.)

As the Stewart court pointed out: whether a particular harm is deemed foreseeable may depend on how the risk of harm is characterized. If harm is characterized in a general way, the risk is more likely to be deemed foreseeable than if it is characterized in a specific manner. Id. at 610, 469 P.2d 783. "Stewart itself made clear that the court meant generalized risk of the types of incidents and injuries that occurred rather than the predictability of the actual sequence of events." Fazzolari, 303 Or. at 13, 734 P.2d 1326. Stewart illustrates the point. The general harm to be anticipated from a dangerous hidden condition of the premises in that case was the potential harm to firefighters called to render emergency aid. ³

In contrast, Hefty v. Comprehensive Care Corporation illustrates the type of harm that is beyond the general rule of foreseeable harm. 307 Or. at 252, 766 P.2d 1026. In that case, Kimberly, a teenager, was voluntary admitted to the defendant's Adolescent Care Unit for the treatment of alcoholism. Id. at 250, 766 P.2d 1026. Six days after she was admitted, she left the facility against the medical advice of the unit. Neither Kimberly nor the hospital notified her parents that she had left. While riding as a passenger on a friend's motorcycle, she sustained severe head injuries in an accident with an automobile. Neither drugs nor alcohol was a factor in the collision.

The court said:

"The risk to be foreseen was not that Kimberly would ride on the back of a motorcycle and be injured in a collision with an automobile. * * * The risk to be foreseen was more general--encompassed those generalized incidents and injuries created by discharging Kimberly, an impaired minor addicted to alcohol, without notice to parents or police, without the permission of her doctor, without providing alternative care, and with the knowledge that Kimberly could not care for herself." Id. at 252, 766 P.2d 1026. (Citation omitted.)

Ultimately, the court held that because neither alcohol nor drugs had been involved in the accident, no reasonable trier of fact could conclude that Kimberly's injuries fell within the scope of the foreseeable risk posed by the discharge.

In this case, the generalized risk of harm created by defendant's negligence was that someone could be injured by the water that had collected inside the hospital. Had plaintiff slipped and injured herself as a result of the water, the element of "foreseeability" would be satisfied because of the inherent properties of water. Similarly, a fact finder could find, depending on the circumstances, that it would be reasonably foreseeable that it would be necessary for hospital personnel to clean up the water that had been allowed to seep into the hospital. Part of the process of cleaning up the water could require the emptying of containers used to collect the water. We conclude that risk of injury to people performing tasks such as that performed by plaintiff is not beyond the range of reasonable foreseeability. Thus, plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.

The dissent would conclude that plaintiff's injury from lifting a "Wet Vac" full of water (water that had been negligently allowed to seep onto the premises) is beyond the risk of the generalized risk of harm caused by water. It asserts, "Plaintiff was not injured by the water." 146 Or.App. at 623, 934 P.2d at 597. In her deposition submitted in contravention of defendant's motion, plaintiff testified that she had used the Wet Vac on previous occasions to clean up spilled liquids at the hospital without incident or injury. However, the extent of the flooding and the surrounding emergency circumstances caused by defendant's negligence on this occasion...