Gymnastics USA v. McDougal

• Jurisdiction: Oregon
• Parties: GYMNASTICS USA, a non-profit corporation, Appellant, v. Jeffrey McDOUGAL, By and Through his Guardian Ad Litem Patricia Miller, and Damon Jensen By and Through his Guardian Ad Litem Ralph C. Spooner, Respondents, and William Wilkerson and Christian Wilkerson, Defendants. M. Duane RAWLINS, M. Duane Rawlins, Inc., Robert MacArthur, and Peggy MacArthur, Plaintiffs, v. Marvin MILLER, Patricia Miller and Jeffrey McDougal by Patricia Miller, Guardian Ad Litem for Jeffrey McDougal, Defendants. 85-0516; CA A43303.
• Citation: 758 P.2d 881,92 Or. App. 453
• Court: Oregon Court of Appeals
• Decision Date: 10 August 1988

Page 881

758 P.2d 881

92 Or.App. 453

GYMNASTICS USA, a non-profit corporation, Appellant, v.Jeffrey McDOUGAL, By and Through his Guardian Ad Litem

Patricia Miller, and Damon Jensen By and Through

his Guardian Ad Litem Ralph C. Spooner,

Respondents,

and

William Wilkerson and Christian Wilkerson, Defendants.

M. Duane RAWLINS, M. Duane Rawlins, Inc., Robert MacArthur, and Peggy MacArthur, Plaintiffs, v.Marvin MILLER, Patricia Miller and Jeffrey McDougal by

Patricia Miller, Guardian Ad Litem for Jeffrey

McDougal, Defendants.

85-0516; CA A43303.

Court of Appeals of Oregon.

Argued and Submitted May 9, 1988.

Decided Aug. 10, 1988.

J. Michael Alexander, Salem, argued the cause, for appellant.With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann, Salem.

Paul J. De Muniz, Salem, argued the cause, for respondentJeffrey McDougal.With him on the brief was Garrett, Seideman, Hemann, Robertson & De Muniz, P.C., Salem.

Ralph C. Spooner, Salem, argued the cause and filed the brief, for respondentDamon Jensen.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

This is an action for property damage arising out of a fire.The only parties to this appeal are Gymnastics USA (plaintiff) and defendantsJeffrey McDougal and Damon Jensen.¹Appellant originally pled claims for negligence, trespass and abnormally dangerous activities.The case was submitted to the jury solely on the trespass claim.A judgment was entered on a verdict for defendants.This appeal involves only the trespass claim.

On June 30, 1984, defendant McDougal, then 10 years old, and his mother bought fireworks for the Fourth of July.Without his mother's knowledge, McDougal took some of the fireworks and went to visit friends.He met with defendant Jensen, who took a cigarette lighter from his mother's car, and they set off a few fireworks near the premises rented by appellant.They proceeded to the parking lot of appellant's building and lit a few more devices there.They noticed a hole which led into the building.McDougal put a "crazy jack", a non-explosive firework which spins and spews sparks, into the hole and lit it with Jensen's lighter.Shortly after the fireworks were set off, the children noticed smoke coming from the building.They called for help, but the building was substantially damaged by the fire.

Appellant assigns as error giving and failing to give jury instructions regarding fault, foreseeability, the standard of care applicable to children, joint liability and damages.Jensen cross-assigns the trial judge's denial of his motion for directed verdict.

The trial judge instructed the jury.

"The law presumes that all persons have obeyed the law and are free from fault.Accordingly the mere fact there was a fire involved in this case and that the plaintiff was financially damaged as a result of it is no indication that the defendants or either of them was a fault.In order for the plaintiff to prevail in the case, it is necessary that he, the corporation, prove by a preponderance of the evidence that the defendant or one of them or both of them were at fault in such a manner to cause the fire or damage which he complains of.An act or an omission is a cause of damage when in a direct and unbroken sequence [it] produces the damage complained of.

" * * *

"I am prepared to tell you that as a matter of law that what Mr. McDougal did by placing a firework in the cavity of the wall in the building where the plaintiff's business was located constitutes a legal trespass.That does not tell you, however, that the plaintiff is entitled to prevail in this case because what it doesn't do and what you must do in your deliberations is to determine what the cause of the fire was.If the cause of the fire was anything other than as a result of the firework placed in the wall and being ignited, any other cause other than that, then, of course, the plaintiff is not entitled to recover against these defendants.

" * * *

"So what you must do is decide whether or not the cause of the fire was related in any way to the firework being placed in the wall.As I say, if you find it was not and it was a fire from some other cause, then that's the end of your deliberations and your verdict would be favorable to the defendants.However, if you should find that the fireworks being placed in the wall is the operative cause of the fire and resulting damage, if you find there was damage, then you would have to decide whether or not the fault lies with the two boys, Mr. McDougal and Mr. Jensen, or with just Mr. McDougal.

"And in connection with that, that is a legal--another legal fiction of foreseeability that I will tell you a little something about; that is, a person is liable only for reasonably foreseeable consequences of his actions.

" * * *

"And in that connection the defendants' conduct, both Mr. McDougal's and Mr. Jensen's, should be judged by the standard of behavior that you would expect from a child of similar age, intelligence and experience under those same or similar circumstances."

Appellant contends that the instructions were negligence instructions and were inappropriate in this intentional trespass case.²The instructions on fault, foreseeability and the standard of care of children were negligence instructions.We agree that it was error to instruct the jury on negligence.

We next consider whether the erroneous instructions require reversal of the judgment.Although the instruction on fault is inappropriate in a trespass case, it alone does not require us to reverse.Another instruction stated that defendant McDougal trespassed as a matter of law and that he, or both defendants, should be found liable to plaintiff if their conduct caused the fire.Because the trial court correctly instructed the jury that McDougal had trespassed as a matter of law, the only issue on liability as to him was whether his trespass caused...