McAlpine v. Multnomah County

Decision Date24 January 1995
Citation883 P.2d 869,131 Or.App. 136
PartiesRobert McALPINE, Appellant, v. MULTNOMAH COUNTY, Defendant, and City of Portland and Regional Organized Crime Narcotics Agency, Respondents. C93-0353CV; CA A80998.
CourtOregon Court of Appeals

J. William Savage, Portland, argued the cause for appellant. With him on the briefs were Lynn M. Clark and Rieke, Geil & Savage, P.C.

Harry Auerbach, Portland, argued the cause and filed the brief for respondent City of Portland.

Michael A. Lehner, Portland, argued the cause for respondent Regional Organized Crime Narcotics Agency. With him on the brief was Lehner, Mitchell, Rodrigues & Sears.


LEESON, Judge.

Plaintiff appeals a judgment dismissing his complaint against defendants City of Portland and Regional Organized Crime Narcotics Agency for failure to state a claim. 1 We affirm.

In reviewing a dismissal for failure to state a claim, we are limited to the facts stated in the complaint. Erickson v. Christenson, 99 Or.App. 104, 106, 781 P.2d 383 (1989), rev. dismissed 311 Or. 266, 817 P.2d 758 (1991). We accept as true the allegations in the complaint and all reasonable inferences that may be drawn from them. Glubka v. Long, 115 Or.App. 236, 238, 837 P.2d 553 (1992). A pleading that contains an allegation of material fact as to each element of the claim for relief, even if vague, is sufficient to survive a motion to dismiss. Mazurek v. Rajnus, 253 Or. 555, 557-58, 456 P.2d 83 (1969); Erickson v. Christenson, supra, 99 Or.App. at 106, 781 P.2d 383.

Plaintiff's complaint alleges:

"Count One: Negligence


"On or about August 22, 1986, * * * Brian Charlesworth was paroled from Oregon State Penitentiary following a conviction for Delivery of a Controlled Substance, Schedule II.


"From at least August 19, 1991, until October 26, 1991, [defendants] conducted surveillance of Charlesworth as part of an ongoing drug investigation * * * [that] included following Charlesworth from the * * * County Courthouse [on two occasions after he had made court appearances].


"At all material times there was in effect ORS 144.331, which stated that a sheriff, municipal police officer or other peace officer shall execute the order of arrest for any person which is issued by the Oregon Board of Parole and Post-Prison Supervision.


"At all material times, [defendants] knew or reasonably should have known that Charlesworth had a history of violent behavior which included adult and juvenile convictions for Armed Robbery, Bank Robbery, Possession of a Gas Bomb, Assault in the First Degree, and Delivery of Controlled Substances, Schedule II.


"On August 26, 1991, the Oregon Board of Parole issued an order to arrest and detain Charlesworth.


"From on or about August 26, 1991, [defendants] knew or reasonably should have known of the outstanding order from the Board of Parole to arrest and detain Charlesworth.


"Due to the negligence of [defendants], and [their] failure to follow the directive of ORS 144.331, Charlesworth was allowed to remain at large after August 26, 1991 until October 26, 1991, when Charlesworth assaulted and seriously injured plaintiff.


"On October 26, 1991, [plaintiff and his wife were passengers in a vehicle driven by his daughter. Charlesworth was in a car driving in the same general direction. Plaintiff's car slowed or stopped to make a turn and Charlesworth's car skidded to a stop nearby. Charlesworth got out of his vehicle and approached plaintiff's car. Plaintiff began to get out of the car.] Charlesworth violently slammed plaintiff's head with the rear door crushing it between the door and door jamb. Charlesworth then pulled plaintiff's head up and punched him in the face, causing [plaintiff] to fall backward onto the hood of a nearby vehicle. * * *


"The violent assault on [plaintiff] caused him serious and permanent physical, mental and emotional injury. * * *


"[Plaintiff's injuries] were proximately caused by the negligence of [defendants] in one or more of the following particulars:

"A. In failing to effect the arrest of Charlesworth in accordance with ORS 144.331;

"B. In failing to follow their own policies and procedures to effect the arrest of Charlesworth as ordered by the Board of Parole;

"C. In failing to ascertain the existence of the order for the arrest and detention of Charlesworth issued by the Board of Parole during the time that he was the subject of close surveillance and investigation."

"Count Two: Negligence Per Se


"[Defendants'] actions were in violation of ORS 144.331, which actions were the cause of plaintiff's injuries.


"Plaintiff was in the class of persons intended to be protected by the enactment of ORS 144.331 * * *.


"The injuries that plaintiff suffered were within the area of risk intended to be avoided or prevented by the enactment of ORS 144.331 * * *.

"Count Three: Statutory Liability


"In violation of ORS 144.331 * * *, defendant[s] * * * failed to arrest Charlesworth after the Board of Parole issued its order to do so, although defendant[s] had a statutory duty to do so.


"As a result of [defendants'] breach of [their] statutory duty, plaintiff suffered serious and permanent personal injuries * * *."

Defendants moved to dismiss plaintiff's complaint pursuant to ORCP 21A(8). The trial court granted that motion on the grounds that there is no indication that the purpose of ORS 144.331(1) is to protect any particular class of persons and that defendants had no special relationship with plaintiff. The court then entered judgment for defendants. On appeal, plaintiff assigns error to the trial court's dismissal of the complaint.

We first consider whether plaintiff stated a claim for negligence. Plaintiff argues that the trial court erred in concluding that his injuries did not fall within the scope of "generalized risk of the types of incidents and injuries" that are created when law enforcement agencies undertake surveillance of a person who has a history of violent crimes, and for whom an outstanding arrest warrant exists, but do not arrest the person. Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). Plaintiff further argues that a reasonable fact finder could conclude that harm to individual members of the public was a reasonably foreseeable consequence of defendants' failure to arrest Charlesworth.

Defendants contend that plaintiff's negligence claim is controlled by Buchler v. Oregon Corrections Div., 316 Or. 499, 853 P.2d 798 (1993). They assert that, in order to be responsible for controlling a third person to prevent that person from doing harm to another, they must have some form of custody of that person. Defendants further argue that plaintiff fails to allege sufficient facts from which it could be reasonably inferred that defendants knew that Charlesworth was likely to harm plaintiff if defendants did not arrest him.

Plaintiff is correct that the necessary starting point for a review of the sufficiency of this negligence claim is the Supreme Court's decision in Fazzolari v. Portland School Dist. No. 1J, supra. In that case, the court held that

"unless 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 of harm that befell the plaintiff." 303 Or. at 17, 734 P.2d 1326.

The general allegations of plaintiff's complaint require us first to determine whether plaintiff has alleged "a status, a relationship, or a particular standard of conduct that creates, defines or limits the defendant's duty." Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or. at 16, 734 P.2d 1326. In Buchler v. Oregon Corrections Div., supra, the court noted that a duty to control the conduct of a third person arises in only two contexts. The first is when there is a special relationship between the plaintiff and the defendant. In Buchler, the court found there was no special relationship between the defendant jailer and the plaintiff, a member of the general public. The second context in which the duty to control the conduct of a third person arises is when the defendant occupies a special status in relation to the third person. In using Restatement (Second) of Torts, § 319 (1965), as authority, the Buchler court held that jailers do have a special status in relation to their prisoners, and that they must exercise reasonable care to protect others from dangerous people in the jailer's custody.

Plaintiff argues that although no special relationship exists between defendants and himself as a member of the general public, defendants did have a special relationship with Charlesworth and that that relationship gave rise to a duty to exercise care to prevent harm to plaintiff. Plaintiff's argument relies on section 319 of the Restatement, which provides:

"Duty of Those in Charge of Person Having Dangerous Propensities

"One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."

In order to plead liability under section 319, plaintiff must allege that defendants had taken charge of Charlesworth and knew or should have known that Charlesworth was likely to cause bodily harm to others if not controlled. However, plaintiff's complaint alleges only that defendants knew or should have known of the arrest warrant for Charlesworth, that they knew or should have known of Charlesworth's violent history, and that they had Charlesworth under...

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