Mcpherson v. Oregon Dept. of Corrections, A126885 (Control).

Citation152 P.3d 918,210 Or. App. 602
Decision Date31 January 2007
Docket NumberNo. A126885 (Control).,No. A126886.,A126885 (Control).,A126886.
PartiesBertha McPHERSON, Plaintiff-Appellant, v. STATE of Oregon, acting by and through DEPARTMENT OF CORRECTIONS, acting by and through Oregon State Correctional Institution, acting by and through Oregon State Police; Jim Bartlett; Greg Kanne; Brian J. Bemus; Jeff Hanson; Lawrence E. Daniels; John Doe 1; John Doe 2; Paul W. Scharn; Julian T. Ruiz; Edward J. Shones; Marion County, acting by and through Marion County Sheriff's Office; City of Salem, acting by and through Salem Police Department; Troy Bowser; Patrick Tope; Jamin Dumas; and James Pate, Defendants-below, and Ronald Halter, dba Lancaster Gardens and Janet Halter, dba Lancaster Gardens, Defendants-Respondents. Charles McPherson, Plaintiff-Appellant, v. State of Oregon, acting by and through Department of Corrections, acting by and through Oregon State Correctional Institution, and acting by and through Oregon State Police; Jim Bartlett; Greg Kanne; Brian J. Bemus; Jeff Hanson; Lawrence E. Daniels; Paul W. Scharn; Julian T. Ruiz; Edward J. Shones; Marion County, acting by and through Marion County Sheriff's Office; City of Salem, acting by and through Salem Police Department; and John Doe 1 and John Doe 2, Defendants-below, and Ronald Halter, dba Lancaster Gardens and Janet Halter, dba Lancaster Gardens, Defendants-Respondents.
CourtCourt of Appeals of Oregon

Thomas W. Sondag, Portland, argued the cause for appellants. With him on the briefs was Lane Powell PC.

Marjorie Speirs, Portland, argued the cause for respondents. With her on the brief was Janet M. Schroer.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA,* Judges.

SCHUMAN, J.

On Christmas eve, 2001, an escaped convict named Leighton Bates entered a stand-alone laundry shed in Lancaster Gardens, a Salem apartment complex owned by defendants, where he restrained, assaulted, and repeatedly raped plaintiff Bertha McPherson. He also restrained and assaulted her teenaged son, plaintiff Charles McPherson. Plaintiffs each brought an action alleging that defendants were negligent in failing to provide safe premises.1 Defendants moved for summary judgment. The trial court granted the motions, ruling that "there is no evidence that the defendants could have reasonably foreseen" the harm that occurred to plaintiffs. The cases were consolidated for appeal. We reverse and remand.

In the light most favorable to plaintiffs, ORCP 47 C, the facts are as follows. At some time on December 24, 2001, Bates escaped from the Oregon State Correctional Institution near Salem. As evening fell, he found himself, still in his prison uniform, near Lancaster Mall, a brightly lit shopping center adjacent to Interstate 5. Looking for a car to steal and noticing a dimly lit nearby apartment complex, Bates walked over a downed fence at the edge of the complex and entered its parking lot. The complex was Lancaster Gardens, owned by defendants.

Lancaster Gardens is located in an area of Salem that defendants know to be unsafe. Two halfway houses are in the neighborhood. Transients are a common sight and sometimes trespass into the complex. Tenants near or within the complex made 86 emergency calls to police during the nine years preceding the attack on plaintiffs, some dealing with incidents that involved the threat of physical harm. Events reported within three years of the attack included gunshots, car break-ins, thefts, and trespasses.

Before the date of the attacks on plaintiffs, the managers of the complex had made several police reports about activity inside its boundaries, including a report of vandalism and trespass in its laundry facility. Indeed, the manager testified that criminal activity in the laundry rooms was "not an unusual thing," and tenants had reported to management that they felt unsafe in those areas. According to the landlord education program conducted by the Salem Police Department— a program that neither defendants nor their managers had attended—laundry rooms "should contain a window on the same wall as the door, so that a tenant occupying the facility can see people approaching or at the door without opening it." One of the laundry rooms at Lancaster Gardens was a free-standing shed located in the parking lot. The only door into the shed had a lock, but no security chain. There was no window on the same side as the door through which an occupant could observe who might want to come in, nor was there a peephole. The shed did, however, have a window on another side.

After he entered the complex, Bates observed Bertha McPherson through that window. She was working on several loads of wash and expecting her son, Charles, to come by to help her carry the clean clothes back to their apartment. Thus, when Bates knocked on the door, Ms. McPherson thought it was probably Charles. To be certain, however, and because there was neither a window nor a peephole, she opened the door a few inches and braced it with her foot; she did not ask who it was because she thought that any conversation would be drowned out by the sound of the laundry machines. Had she been able to see that the person knocking was a strange man, she would not have opened the door even a few inches.

In the event, she could not see who was knocking without opening the door, and when she opened it, Bates pushed his way in; his force overpowered Ms. McPherson's foot. He entered, jabbed her with a sharpened stick, and demanded her car. Ms. McPherson gave him her car keys and indicated which car was hers but, for some reason, Bates was not satisfied. He turned off the lights and hit her in the face, then wrestled her to the floor and held the sharpened stick to her jaw.

At that point, Charles arrived. He knocked and, when nobody answered, called out to his mother. When she did not respond, he tried to open the door with his key, but Bates was blocking it shut. After a moment, Bates led Ms. McPherson out of the shed, holding her around the neck and midsection. Bates then ordered plaintiffs to take him to their apartment. Once there, Bates bound Charles and put him in the bathroom and told him that if he tried to get out his mother would be killed. Bates then raped Ms. McPherson.

When he was done, he took plaintiffs back to the laundry shed, where he picked up clothing so that he could change out of his prison uniform. All three then returned to the apartment and, around 10:00 p.m., went back to the laundry shed to look for Ms. McPherson's glasses, which had been knocked off earlier. While they were in the shed, with the lights on and the door opened, the apartment managers drove up in their van and looked inside. Bates slammed the door. The managers then drove around to the side and, while still seated in the van, looked in the window for several minutes. They did not leave their van or call authorities.

After the managers drove away, Bates took the McPhersons back to their apartment, where he once again raped Ms. McPherson. The next morning, after forcing Ms. McPherson to lie next to him all night, he forced her to drive him to a nearby state park. When they arrived, he fled.

Plaintiffs subsequently filed separate actions, alleging that defendants or their employees were negligent in several particulars, including: failing to provide a safe laundry shed with a security chain, peephole, or window; failing to keep a proper lookout for trespassers; failing to properly light the area; failing to provide safe landscaping; failing to warn plaintiffs about trespassers; and failing to provide adequate security. As noted above, defendants moved for summary judgment and the trial court granted it. This appeal followed.

We can affirm the trial court's grant of summary judgment only if the record, viewed in the light most favorable to plaintiffs, presents no disputed issues of material facts, and the undisputed facts entitle defendants to prevail as a matter of law. ORCP 47 C. As they did below, plaintiffs contend that, on the facts in the record, a reasonable juror could conclude that defendants breached their duty, as landlords, by unreasonably exposing tenants to a risk of foreseeable harm of the type that befell plaintiffs. Defendants' response has three parts. First, they contend that no reasonable juror could find that they were the cause in fact of plaintiffs' injuries—they contend, in other words, that no reasonable juror could conclude that, but for defendants' conduct, no injury would have occurred. See Oregon Steel Mills, Inc. v. Coopers Lybrand, LLP, 336 Or. 329, 339, 83 P.3d 322 (2004) (explaining role of "but for" causation in negligence action). Second, they argue that, even if defendants' conduct was the "but for" cause of plaintiffs' harm, defendants were entitled to summary judgment in any event. That is so, they reason, because, on the basis of the undisputed fact that plaintiffs were directly harmed not by defendants' conduct but by Bates's crime, no other facts are "material" and defendants prevail as a matter of law. Buchler v. Oregon Corrections Div., 316 Or. 499, 511-12, 853 P.2d 798 (1993). Finally, they argue that, even if Bates's criminal act did not by itself compel summary judgment, the other facts in the record do not raise a disputed issue bearing on defendants' liability and, on the basis of those facts, no rational juror could conclude that defendants were liable because no rational juror could conclude that the type of harm that befell plaintiffs was reasonably foreseeable. Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). We conclude a reasonable juror could conclude that, but for defendants' conduct, no harm would have befallen plaintiffs; that Bates's criminal act does not by itself necessarily insulate defendants from liability; and that a reasonable juror could find that defendants should have foreseen harm of the type that befell plaintiffs and...

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