Graham v. Multnomah County

• Decision Date: 13 January 1999
• Docket Number: 97C-890997,CA A99827
• Citation: 158 Or. App. 106,972 P.2d 1215
• Parties: Jason GRAHAM and Teri Graham, Appellants, v. MULTNOMAH COUNTY, Respondent.
• Court: Oregon Court of Appeals

972 P.2d 1215

158 Or. App. 106

158 Or. App. 106

Jason GRAHAM and Teri Graham, Appellants,

v. MULTNOMAH COUNTY, Respondent.

97C-890997

CA A99827

Court Of Appeals Of Oregon.

Argued November 18, 1998

Submitted November 18, 1998

Decided January 13, 1999

Victor C. Pagel, Salem, argued the cause and filed the briefs for appellants.

Susan M. Dunaway, Portland, argued the cause for respondent. With her on the brief was Thomas Sponsler, County Counsel.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Plaintiffs appeal, assigning error to the trial court's allowance of the defendant county's motion to dismiss their complaint for negligence. ORCP 21 A(8). The sole issue is whether plaintiffs' allegations that their car was damaged by a county vehicle performing sanding operations sufficiently pleaded negligence under the "general foreseeability" analysis of Fazzolari v. Portland School District, 303 Or. 1, 734 P.2d 1326 (1987). We affirm.

The pertinent allegations of plaintiffs' complaint are as follows:

"2

"On December 9, 1995, Plaintiff Jason Graham was operating Plaintiffs' Thunderbird westerly on Halsey, a public highway, between 227th Street and a Thriftway store, in Multnomah County, Oregon. Weather and road conditions were snowy and icy. At that time and place an employee of Defendant was operating a road sanding truck on Halsey in the opposite direction, easterly, and was sanding the highway.

"3

"As the two vehicles approached each other from opposite directions, Plaintiffs observed that Defendant's vehicle was throwing sand onto Plaintiffs' lane of traffic.

As a result, Plaintiff Jason Graham stopped Plaintiffs' vehicle in the westerly lane of traffic in an attempt to avoid damage to his vehicle from the sand. "4

"Plaintiff Jason Graham was unable to safely move Plaintiffs' vehicle off the road due to the ice ruts along the road and the danger of driving into the ditch that ran parallel along his lane of traffic.

"5

"The operator of Defendant's vehicle knew or reasonably should have known that the sanding truck was throwing sand onto the lane of westerly traffic; that the sand likely would damage vehicles in the lane of westerly traffic; that the road conditions and terrain along the highway were as described herein; and that Plaintiffs' vehicle had come to a halt on the highway.

"6

"The operator of Defendant's vehicle continued sanding as it passed Plaintiffs' stationary vehicle, and sand from Defendant's truck was sprayed onto Plaintiffs' vehicle, thereby damaging it.

"7

"Defendant's employee was negligent in one or more of the following particulars:

"a. by failing to halt the sanding truck prior to passing Plaintiffs' vehicle;

"b. by failing to halt the sanding process while passing Plaintiffs' vehicle."

Plaintiffs acknowledge that the allegation in paragraph 7 that "Defendant's employee was negligent" is a legal conclusion but assert that the remaining allegations plead facts sufficient to state a claim under Fazzolari.

In Fazzolari, the court held:

"[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind upon that befell the plaintiff." 303 Or. at 17, 734 P.2d 1326 (emphasis added).

In Solberg v. Johnson, 306 Or. 484, 490-91, 760 P.2d 867 (1988), the court amplified the elements of a negligence claim under the Fazzolari analysis:

"A negligence complaint, to survive a motion to dismiss, 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 the cause of plaintiff's harm, and (5) that plaintiff 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." (Emphasis added.)

Plaintiffs' complaint is fatally deficient in that it fails to allege any facts from which a factfinder could determine that defendant's conduct was unreasonable. Plaintiffs acknowledge that the complaint does not explicitly allege that defendant's conduct was unreasonable but assert that "unreasonableness" may be inferred from the allegations in paragraph 5, viz., that the damage to plaintiffs' car was a...