Hammond v. Central Lane Communications Center

• Decision Date: 25 July 1990
• Parties: Mary HAMMOND, Appellant, v. CENTRAL LANE COMMUNICATIONS CENTER; City of Eugene; Lane County, Oregon; Oregon State Police; Lane County, Oregon Sheriff's Department and Various Unnamed Employees of the Above, Respondents. 16-87-09193; CA A50155.
• Court: Oregon Court of Appeals

Page 440

792 P.2d 440

101 Or.App. 569

Mary HAMMOND, Appellant, v. CENTRAL LANE COMMUNICATIONS CENTER; City of Eugene; Lane

County, Oregon; Oregon State Police; Lane

County, Oregon Sheriff's Department and

Various Unnamed Employees of

the Above, Respondents.

16-87-09193; CA A50155.

Court of Appeals of Oregon.

Argued and Submitted Nov. 22, 1989.

Decided May 23, 1990.

Reconsideration Denied July 25, 1990.

Ralph A. Bradley, Eugene, argued the cause for appellant. With him on the briefs was Bradley & Gordon, P.C., Eugene.

John B. Arnold, Eugene, argued the cause for respondents Central Lane Communications Center and City of Eugene. With him on the brief was Harrang, Long, Watkinson, Arnold & Laird, P.C., Eugene.

David B. Williams, Eugene, argued the cause for respondents Lane County, Oregon, and Lane County, Oregon Sheriff's Dept. With him on the brief was Lane County Office of Legal Counsel, Eugene.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent Oregon State Police. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Plaintiff appeals from the summary judgment for defendants in this action for "outrageous conduct" and for negligence.

On July 28, 1986, plaintiff found her husband lying on the kitchen floor in their home. She called 911, and the operator concluded from plaintiff's answers to his questions that the husband was probably dead. The operator told plaintiff, "We'll have someone there in just a couple minutes." The 911 system is operated by defendant Central Lane Communications Center (center), but it routes requests for services to other agencies rather than performing them itself. The center contacted defendant City of Eugene's Fire Department Dispatch Center and defendant Oregon State Police. However, the communications indicated that the person was probably dead. The Eugene Fire Department does not provide basic life response services to the unincorporated area where plaintiff lives. However, the state police are responsible for responding to calls that involve deceased persons in that area. Center personnel made follow-up contacts with the state police and were informed that a deputy of defendant sheriff's department was closer than the state police to the scene and would respond to the call. The deputy arrived at plaintiff's home approximately 45 minutes after she called the center. Plaintiff's husband was dead, and there was evidence that he died between the time of plaintiff's call and the time that the deputy sheriff arrived.

Plaintiff's first assignment ascribes error to the summary judgment on her claim alleging "outrageous conduct." She argues that defendants stood in a special relationship to her and that there was evidence of sufficiently culpable conduct on their parts to enable her claim to go to a fact finder. We disagree. There was no showing of any misconduct that could be found to be worse than negligent. That is not enough. See Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1981). ¹

In addition to her argument based on defendants' immediate conduct, plaintiff also supports her first assignment by contending that defendants had advertised and conducted educational programs that induced her to believe that a 911 call would result in the delivery of life response services to her home, when in fact such services were not furnished to the unincorporated area. However, no inference was possible that the harm in this case was caused by any systematic unavailability of services in the area of plaintiff's home. The timing and nature of the response to plaintiff's call resulted from its being treated as a "deceased person" call. That handling of the call entailed no misconduct on defendants' part that a fact finder could decide was more than negligent. We reject plaintiff's first assignment.

Plaintiff's second assignment challenges the summary judgment on her negligence claim. Plaintiff contends that, although her call was made to obtain emergency services for her husband, she rather than he

"chose to use this service. In a contractual sense, Plaintiff * * * accepted the offer of emergency medical services made by the 9-1-1 service."

Accordingly, she argues, she was a "direct victim" of defendants' negligence and suffered emotional distress and somatic complaints.

We rejected similar arguments in Doe v. Portland Health Centers, Inc., 99 Or.App. 423, 782 P.2d 446 (1989), rev. allowed 309 Or. 333, 787 P.2d 887 (1990), and Heusser v. Jackson County Health Dept., 92 Or.App. 156, 757 P.2d 1363 (1988), rev. den. 307 Or. 326, 767 P.2d 902 (1989); see also Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982). As in those cases, the direct victim of the negligence here was plaintiff's relative, and a claim for plaintiff's emotional distress is not available. The fact that plaintiff rather than her husband made the telephone call does not alter the fact that he was the victim of any negligent failure by defendants to respond on his behalf. Plaintiff seeks to distinguish this case from Heusser by noting that, there, the plaintiff's relatives sustained no injury on which they could base an action arising out of the events that caused the plaintiff's emotional distress. Here, conversely, plaintiff asserts that there was an injury to her husband on which his personal representative might base a wrongful death action. Plaintiff...