Fraker v. Benton County Sheriff's Office

• Decision Date: 22 August 2007
• Docket Number: 0010060; A125743.
• Citation: 214 Or. App. 473,166 P.3d 1137
• Parties: Carley FRAKER and Carol Fraker, individually and as guardian ad litem for Kelsey Fraker, a minor, Plaintiffs-Appellants, v. BENTON COUNTY SHERIFF'S OFFICE, Benton County Community Corrections, and Lincoln County Sheriff's Office, Defendants, and Debbie Marie Cottengim, Defendant-Respondent.
• Court: Oregon Court of Appeals

166 P.3d 1137

214 Or. App. 473

Carley FRAKER and Carol Fraker, individually and as guardian ad litem for Kelsey Fraker, a minor, Plaintiffs-Appellants, v. BENTON COUNTY SHERIFF'S OFFICE, Benton County Community Corrections, and Lincoln County Sheriff's Office, Defendants, and Debbie Marie Cottengim, Defendant-Respondent.

0010060; A125743.

Court of Appeals of Oregon.

Argued and Submitted December 28, 2006.

Decided August 22, 2007.

Paul B. Meadowbrook, Salem, argued the cause and filed the brief for appellants.

Rod M. Jones, Salem, argued the cause and filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and EDMONDS, Judge.^*

BREWER, C.J.

In this negligence action, plaintiffs, a mother and her two daughters, appeal from a limited judgment granting summary judgment in favor of defendant.¹ The trial court concluded, as a matter of law, that plaintiffs had not presented evidence that would allow a jury to determine that defendant was liable for the harm that befell plaintiffs under either a special relationship or a general foreseeability theory. On appeal, plaintiffs assert that the trial court failed to consider the evidence, and all reasonable inferences that may be drawn from that evidence, in the light most favorable to them. Plaintiffs further argue that, when properly viewed, their evidence would have allowed a jury to find defendant liable to them under either a special relationship or a general foreseeability theory. We agree that plaintiffs presented evidence that would have allowed a jury to find in their favor on a general foreseeability theory and, accordingly, reverse and remand.

We review the trial court's grant of summary judgment to determine whether defendant, the moving party, was entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). In reviewing the court's summary judgment ruling, we view the facts in the light most favorable to plaintiffs, the nonmoving parties. McCabe v. State of Oregon, 314 Or. 605, 608, 841 P.2d 635 (1992). This case involves an incident that occurred on December 22, 1998, during which Ken Fraker, husband and stepfather to plaintiffs, held plaintiffs hostage in their home in Toledo for several hours before eventually freeing them and killing himself. Fraker's stepdaughters had previously reported to Lincoln County authorities that Fraker had sexually abused them. The ensuing investigation resulted in a criminal indictment against Fraker on numerous counts of sexual abuse and unlawful sexual penetration, as well as one count of possession of child pornography. Fraker was living outside Oregon when the indictment was returned. After learning of the indictment, Fraker made plans to return to Oregon and surrender to authorities in Lincoln County.

On October 27, 1998, defendant, Fraker's friend and former coworker, picked Fraker up at the airport in Portland. She allowed Fraker to drive her car to Newport. During the drive, Fraker informed defendant that he had a gun and that he wanted to be dropped off on the highway between Toledo and Newport because he was going to kill plaintiffs and himself.² Fraker, in fact, pulled the car over on Highway 20 between Toledo and Newport and told defendant that he was leaving. Defendant convinced Fraker not to kill himself and to give her the gun. Fraker relinquished the gun to defendant and, while Fraker watched, she put the gun in the trunk of her car. They got back in the car and proceeded to Newport. Eventually, Fraker surrendered to authorities and was arrested and taken into custody. Defendant did not inform authorities about the incident on the way to Newport.

On November 4, 1998, the Lincoln County Circuit Court held a release hearing, at which defendant was present. The state began its argument against Fraker's pretrial release by noting that the case consisted of 26 counts of sexual abuse involving Fraker's stepdaughters. The state advised the court that Fraker's wife had asked not to be present at the hearing because she was so afraid of Fraker. After plaintiff and Fraker had separated and he had moved out of the family home, plaintiff had the locks changed. Fraker had then returned and broke windows and knocked holes in the doors, so that it would be difficult to install new locks. He told plaintiff that he could not be kept from coming back to the house any time he wanted. Plaintiff then obtained a restraining order against Fraker. Fraker then went to DMV and arranged to have one of his stepdaughters' driving privileges revoked. Plaintiff had told the assistant district attorney that Fraker was prone to "violent outbursts" and that, "if he's in a corner, * * * he's unpredictable and extremely dangerous." Plaintiff had also said that Fraker had told her that, if his life was going to end for some reason, he would return to a former workplace in Lewiston and "take people out." Lincoln County Senior Release Officer Marchel also testified that she had concerns about Fraker's ability to control his behavior if he were released.

After hearing the parties' arguments, the court released Fraker on home detention under the supervision of Benton County Community Corrections (BCCC).³ Because Fraker had no local residence, defendant agreed to allow Fraker to reside in her apartment in Corvallis during his period of home detention. To document that agreement, defendant signed a roommate agreement with BCCC. The general terms of the agreement required defendant to remove all alcohol, drugs, and firearms from her home, to notify BCCC if Fraker left her residence at unauthorized times, and to allow her residence, vehicle, or property to be searched by a parole or probation officer. Any violation of the agreement could result in Fraker's removal from the home or from the home detention program.

During her deposition, defendant testified that she knew the following, based on conversations with Fraker before he returned to Oregon, on the drive to Newport from the airport, or while he was staying in her apartment on home detention: Fraker's stepdaughters were "responsible" for the indictment against him, which involved allegations of sexual abuse, and plaintiff was supporting her daughters and had initiated dissolution proceedings against him. Fraker was concerned about going to jail, particularly because he was afraid that sexual predators were subject to being raped in prison. Fraker had indicated that he would rather kill himself than go to prison.

On December 22, 1998, BCCC permitted Fraker to leave defendant's residence to travel to Newport to meet with his attorney. After the meeting ended, instead of driving directly to Corvallis, as he had done on previous occasions after meeting with his attorney, Fraker detoured and drove to plaintiffs' home in Toledo. Fraker entered the home, found one of his stepdaughters, and tied her up with duct tape. He then doused the interior of the home with gasoline. Shortly thereafter, the second stepdaughter returned home with a friend. Fraker also bound them with duct tape. Later, Fraker's wife entered the home, also with a friend, and they, too, were taken hostage and restrained. Fraker drank heavily while in the home, brandished a gun repeatedly, and terrorized his five hostages with threats to kill them. After many hours, Fraker released plaintiffs and their friends. He then turned the gun on himself, shot himself in the head, and died instantly.

During the time that Fraker held plaintiffs and their friends hostage, police became aware of the situation. Benton County Deputy Sheriff Van Ardsdall was dispatched to defendant's apartment. Defendant told Van Ardsall that, over the past few days, Fraker had told her that he would not go back to jail and had talked about fighting with police and killing his wife, his stepdaughters, and police.

Plaintiffs initiated this negligence action against defendants, including Cottengim, seeking compensation for the harm they suffered as a result of the events of December 22, 1998. As noted, defendant filed a motion for summary judgment. Defendant argued, first, that she had no special relationship with plaintiffs that would support negligence liability. Second, defendant contended that she could not be held liable under a general foreseeability theory because she had not "taken charge" of Fraker and because, in any event, Fraker's actions were not the reasonably foreseeable result of defendant's own actions. In response, plaintiffs advanced two specific theories of negligence. First, according to plaintiffs, a special relationship or status existed here because of the roommate agreement, which imposed on defendant a special responsibility to plaintiffs, and defendant breached that agreement by, among other things, allowing Fraker to have access to the gun in the trunk of her car. Further, plaintiffs asserted that defendant was liable for their harm under a general foreseeability theory because her actions created a reasonably foreseeable risk of the kind of harm that befell plaintiffs. After a hearing during which the parties debated the merits of those arguments, the trial court granted summary judgment in favor of defendant. On appeal, plaintiffs reassert the legal arguments that they advanced to the trial court and contend that, based on the evidence before the trial court, summary judgment in defendants' favor was inappropriate.

Before we turn to the merits of the summary judgment motion and response, we must resolve a possible alternative ground for affirmance. As noted, the parties submitted memoranda and affidavits addressing whether a jury could find defendant liable to plaintiffs on either of two negligence theories, and the parties orally argued those issues to the trial court. The court took the matter under advisement. In a detailed letter opinion, the court addressed the merits of the parties' arguments and concluded that defendants...