Kimbler v. Stillwell
| Decision Date | 17 March 1987 |
| Citation | 734 P.2d 1344,303 Or. 23 |
| Parties | Delorous Y. KIMBLER, Respondent on Review, v. John Vernon STILLWELL, aka John Vernon Bray, Defendant, and G.I. Joe's, an Oregon corporation, Petitioner on Review. TC A8208-05113; CA A34559; SC S32882. |
| Court | Oregon Supreme Court |
Jeffrey A. Johnson, Portland, argued the cause for petitioner on review. With him on the petition were Frank H. Lagesen, of Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.
Richard E. Fowlks, Portland, argued the cause for respondent on review.
Plaintiff, as the personal representative of the estate of Michael Kimbler, brought a wrongful death action against John Stillwell and G.I. Joe's, a retail merchant, alleging that Stillwell had intentionally shot Michael Kimbler with a shotgun and shells which G.I. Joe's had made it too easy for Stillwell to take from its store. The circuit court dismissed the complaint against G.I. Joe's under ORCP 21A. (8) as not stating ultimate facts sufficient to constitute a claim. On plaintiff's appeal, the Court of Appeals reversed the judgment of dismissal and remanded the case to the circuit court. Kimbler v. Stillwell, 78 Or.App. 636, 717 P.2d 1223 (1986). We affirm the Court of Appeals.
The allegations of the second amended complaint on which plaintiff predicates G.I. Joe's liability may be summarized as follows. G.I. Joe's, hereinafter called defendant, operated a retail store on S.E. Stark Street in Portland, where it offered shotguns and ammunition for sale to the general public. The shotguns were displayed in proximity to the corresponding ammunition. The display was not behind glass or otherwise encased nor were the shotguns secured by chains, trigger guards, or other protective mechanisms, which could readily be observed by customers passing the display. At night, the store was secured with glass doors, without other security measures commensurate with the danger represented by the displayed firearms. Defendant knew or should have known that the lack of security measures made the shotguns and ammunition easy targets for theft, that stolen firearms often are used to commit crimes against third parties, and therefore that this manner of displaying its shotguns and ammunition created an unreasonably high risk of harm to third persons. On February 21, 1982, Stillwell, having earlier observed the display, entered defendant's store, took a shotgun and shells, and used them to shoot at Michael Kimbler, causing his death. After alleging these facts, the complaint asserted somewhat redundantly that defendant was negligent in failing to guard and patrol the store, failing to fit the store with adequately secure doors, locks, and alarms, failing to secure the display of shotguns and ammunition behind an unbreakable barrier or with the use of chains, trigger guards, or other protective devices, and failing to lock up the ammunition in a different location from the shotguns.
Defendant's motion to dismiss asserted that the pleaded facts did not state a claim "in that the harm caused plaintiff's decedent was not reasonably foreseeable and that defendant G.I. Joe's owed no duty to plaintiff's decedent for the intentional conduct of defendant John Vernon Stillwell." It is not entirely clear whether defendant considered this a single or two distinct grounds. The circuit court's judgment of dismissal did not specify on what theory the motion was granted.
In Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), also decided today, we have reviewed the roles of foreseeability and of duty, or "no duty," in negligence cases. Briefly stated, these concepts concern half of the decision on negligence liability for conduct injuring a protected interest, the other half being whether the conduct unreasonably created a risk of such an injury. Unless a plaintiff invokes a particular legal duty arising from a status or relationship or defined by a legal source apart from the common law of negligence itself, "no duty" is a defense argument that the plaintiff's injury falls outside the foreseeable risks of the alleged negligent conduct, phrased as a legal conclusion for the court rather than as a factual assessment of the foreseeable risks. Fazzolari, supra, 303 Or. at 10, 17-18, 734 P.2d 1326.
In Fazzolari, the plaintiff did invoke the special obligations of a school district toward minors attending one of its schools. The present plaintiff claims no particular duty owed by defendant to Michael Kimbler but relies on the common-law rules of liability for foreseeable harm caused by defendant's alleged failure to take reasonable care to avoid or minimize the risk of such harm. Similarly, G.I. Joe's defense of "no duty" to Michael Kimbler does not assert that some rule or status disqualified Michael Kimbler individually or as a member of a class (for example, as a trespasser in a case based on a condition on real property) from recovering damages based on defendant's negligence toward others. Rather, this defense is only another way of stating that the harm to Michael Kimbler caused by the firearm taken from defendant's store was not a foreseeable risk of the conduct alleged as negligence in plaintiff's complaint.
The Court of Appeals recognized that it is difficult to establish such a defense on a motion to dismiss a complaint. Plaintiff's allegations on the issue of foreseeable harm appear in paragraph XI of the second amended complaint as follows:
"Defendant G.I. Joe's knew or should have known: that shotguns are dangerous instrumentalities; that its observable lack of security measures made its shotguns and ammunition an easy target for theft and/or burglaries; that, as a matter of common knowledge, firearms stolen in robberies or burglaries are often used to commit further crimes of violence against third parties; and that its conduct in displaying its shotguns and ammunition in the manner above described created an unreasonably high degree of risk of harm to third persons as the result of a burglary or theft of the shotguns and ammunition from its retail store."
The Court of Appeals wrote:
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Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J
...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 I. THE USES OF "DUTY" The problem common to today's cases is the......
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...cause the harm so as to support liability for it.’ Buchler, 316 Or. at 511–12 (rejecting ‘facilitation’ rationale of Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987) ). The court in Buchler held that, in order to survive a defendant's motion for summary judgment in a case involving th......
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...on the theory that crime is foreseeable, a theory that the Supreme Court disavowed in Buchler when it overruled Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987). In Buchler, the issue was whether the state could be held liable for the criminal acts committed by a state prisoner who ha......
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Buchler v. State By and Through Oregon Corrections Div.
...of the recent basis for discussion of negligence law in Oregon: Fazzolari v. Portland School Dist. No. 1J, supra; Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987); and Donaca v. Curry Co., 303 Or. 30, 734 P.2d 1339 (1987). The shorthand expression for the group is the name of the firs......
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