Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J

• Decision Date: 17 March 1987
• Citation: 734 P.2d 1326,303 Or. 1
• Parties: , 38 Ed. Law Rep. 809 Tammy FAZZOLARI, a minor, By and Through Ethel FAZZOLARI, her Guardian Ad Litem, Respondent on Review. v. PORTLAND SCHOOL DISTRICT NO. 1J, Petitioner on Review. TC A8212-07615; CA A34098; SC S32918.
• Court: Oregon Supreme Court

Page 1326

734 P.2d 1326

303 Or. 1, 38 Ed. Law Rep. 809

Tammy FAZZOLARI, a minor, By and Through Ethel FAZZOLARI her Guardian Ad Litem, Respondent on Review. v. PORTLAND SCHOOL DISTRICT NO. 1J, Petitioner on Review.

TC A8212-07615; CA A34098; SC S32918.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 4, 1986.

Decided March 17, 1987.

James N. Westwood, Portland, argued the cause for petitioner on review. With him on the petition were William B. Crow, and Miller, Nash, Wiener, Hager & Carlsen, Portland.

Willard E. Merkel, Portland, argued the cause and filed a response on behalf of respondent on review.

Edward C. Harms, Jr., of Harms, Harold, Leahy & Pace, Springfield, filed a brief amicus curiae on behalf of Oregon School Boards Ass'n.

Chris L. Mullman, of Ragen, Roberts, Tremaine, Krieger, Schmeer, O'Scannlain & Neill, Portland, filed a brief amicus curiae on behalf of Lake Oswego School Dist. No. 7J.

John C. Caldwell, of Hibbard, Caldwell, Bowerman, Schultz & Hergert, Oregon City, filed a brief amici curiae on behalf of North Clackamas School Dist. No. 12 and Oregon City School Dist. No. 62. With him on the brief was Nancy S. Tauman, Oregon City.

LINDE, Justice.

When plaintiff, then a 15-year-old high school student, was about to enter her school building a few minutes before 7:00 a.m. on May 21, 1982, an unknown assailant grabbed her from behind and dragged her to some nearby bushes, where he beat and raped her. In an action against the school district to recover damages for her injuries, plaintiff claimed that school administrators were negligent in failing to provide proper supervision of students on the school's grounds during hours when the school was open to students, in failing to provide security personnel when district administrators knew of previous similar attacks and could have foreseen the danger of such attacks on students at plaintiff's school, in failing to warn students after similar attacks had been perpetrated in the area near the school and in failing to trim or remove bushes offering concealment to an assailant. The circuit court let the case go to trial but granted defendant's motion for a directed verdict at the end of plaintiff's evidence.

On plaintiff's appeal from the resulting judgment, the Court of Appeals reversed and remanded the case for a new trial. Fazzolari v. Portland School Dist. No. 1J, 78 Or.App. 608, 717 P.2d 1210 (1986). The majority of the panel held that the trial court erred in ruling as a matter of law that a previous attack on a woman on the school grounds before school hours did not make the attack on plaintiff reasonably foreseeable. Presiding Judge Buttler dissented on grounds that the school district's duty of due care to protect its students against foreseeable harm does not extend to times when a student is not engaged in recognized school activities. Fazzolari, supra, 78 Or.App. at 616, 618, 717 P.2d 1210. We allowed the school district's petition for review along with petitions in two other cases, also decided today, that involve similar issues. See Donaca v. Curry County, 303 Or. 30, 734 P.2d 1339 (1987), Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987). In this case, we affirm the decision of the Court of Appeals.

I. THE USES OF "DUTY"

The problem common to today's cases is the relation of foreseeability and duty as elements of liability in negligence law. As Justice O'Connell observed in Stewart v. Jefferson Plywood Co., 255 Or. 603, 607, 469 P.2d 783 (1970), it is a problem that has produced "a vast amount of legal literature" without leading to an agreed scholarly analysis. We review the evolution of this state's approach to the problem in some detail before turning to the specifics of each case.

Foreseeability is a judgment about a course of events, a factual judgment that one often makes outside any legal context. It therefore ordinarily depends on the facts of a concrete situation and, if disputed, is decided as an issue of fact. "Duty" expresses the formal link between factual conduct and legal liability; its content must be located in the law, not in facts nor in morals, manners, or other values unless these are incorporated into law. When "duty" refers to legally obligatory conduct, it serves a person injured by noncompliance as a premise to claim a legal remedy; at other times the concept is invoked defensively to limit the reach of liability even though harm was caused by conduct falling short of a legal obligation. See e.g., Nylander v. State of Oregon, 292 Or. 254, 257-58, 637 P.2d 1286 (1981) (discussing "duty" as a legal premise to potential liability); cf. Thompson v. Weaver, 277 Or. 299, 560 P.2d 620 (1977) (discussing defensive use of "duty"). In either case, "duty" by definition appears as a legal issue and, if disputed, is decided by the court.

This neat division of issues is unproblematic when the substance and scope of a duty are found in legislation or in a particular common law source. But when the law (for instance negligence law) defines a duty by reference to the foreseeability of events, the questions who decides what, at which stage of litigation, and with what precedential effect become problematic, as today's cases show. A rather extensive statement in this case seems preferable to fragmented conclusions in each of today's opinions.

At the time the Oregon Territory adopted the "common law of England," ¹ the common law had no broad theory of liability for unintended harm resulting from a failure to take due care toward members of the public generally but only liability for harm resulting from negligent conduct in various callings and relationships. Men had particular duties but no general duty. See 3 Harper, James & Gray, The Law of Torts 107-114 (2d ed 1986) (citing other literature); Winfield, Duty in Tortious Negligence, 34 Colum.L.Rev. 41 (1934). "Negligence," "fault," and "tort" also did not describe general theories of common-law liability in this country before the 1870s; the formula that liability followed generally from harm caused by breach of a duty of care gained currency only after 1880, stimulated in part by the theoretical writings of Oliver Wendell Holmes, Jr. See White, Tort Law in America 12-19 (1980). ² The first Oregon case reciting the formula was Kennedy v. Hawkins, 54 Or. 164, 167, 102 P. 733 (1909).

The elements of this formula met critical examination early in this century. Professor Francis H. Bohlen, who became the first reporter of the American Law Institute's Restatement of Torts, offered this recapitulation of negligence law:

" * * * To constitute actionable negligence there must be: (1) A duty to the plaintiff to observe care. This depends upon the probability of injury if care be not taken. (2) A standard of care not observed (constituting the breach). This again depends upon the anticipation of probable danger. (3) Injury suffered in consequence. This, it is submitted, must be judged by the rules governing responsibility for the effect of a breach of any obligation imposed by law and not assumed voluntarily by the parties." (Footnote omitted.)

Bohlen, The Probable or the Natural Consequence as the Test of Liability in Negligence (pt. 1), 40 Am.L.Register (n.s.) 79, 86 (1901), reprinted in Bohlen, Studies in the Law of Torts 9-10 (1926). In this summary statement, foreseeability of harm to another defined both duty and its breach, which seems redundant. ³ Professor Winfield, in the article already cited, questioned whether "duty" served any necessary or useful function in common-law negligence cases, noting that it had entered the formula through decisions denying recovery because suppliers of defective equipment had breached duties to someone other than plaintiff, a fateful non sequitur. ⁴

Nonetheless, the "duty" concept was retained in negligence law. Bounds of liability must be stated somehow if the law was not to make one insure the world at large against all harm from one's negligent conduct. ⁵ Although negligent conduct caused harm in fact, the law might deny liability if this harm did not seem "natural" and "proximate" but "remote," words which again focused on foreseeability in a factual setting. So did the apparently widest statement of common-law negligence, in Donoghue v. Stevenson, [1932] AC 562 (Scot), that "[y]ou must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Id. at 580. Donoghue went on to define one's neighbors as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Id. Foreseeability, too, was the focus of Chief Judge Cardozo's formulation in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), which denied liability unless the plaintiff and the injurious event were both within the foreseeable risks of defendant's negligent conduct. ^{6 6} But because common-law negligence traditionally has excluded some categories of quite predictable injuries and claimants (familiar illustrations include solely economic or psychic injuries, injuries due to a bystander's failure to rescue and injuries to trespassers), courts still find lack of a "duty" a convenient label for these categorical rulings.

The Restatement of Torts did not list "duty" as an indispensable element of a negligence claim. The Restatement's formula required an injury to an interest protected against unintentional invasion and to a person within the class foreseeably at risk, but it reserved the word "duty" for a series of sections describing duties of protective action arising in various situations and relationships. ⁷ Still, the formal question toward whom one has a duty of care was easily confused with the content of that duty (particularly when something outside tort law defined the required conduct) and with the...