Miller ex rel. Miller v. Tabor West, 041212888; A130947.

• Decision Date: 12 November 2008
• Docket Number: 041212888; A130947.
• Citation: 223 Or. App. 700,196 P.3d 1049
• Parties: Donald MILLER, by and through his legal guardian, Janis MILLER, Plaintiff-Appellant, v. TABOR WEST INVESTMENT CO., LLC, an Oregon limited liability company, and E.C. Owen Property Management, Inc., Defendants-Respondents, and B & D Management, Inc., an Oregon corporation, Defendant.
• Court: Oregon Court of Appeals

196 P.3d 1049

223 Or. App. 700

Donald MILLER, by and through his legal guardian, Janis MILLER, Plaintiff-Appellant, v. TABOR WEST INVESTMENT CO., LLC, an Oregon limited liability company, and E.C. Owen Property Management, Inc., Defendants-Respondents, and B & D Management, Inc., an Oregon corporation, Defendant.

041212888; A130947.

Court of Appeals of Oregon.

Argued and submitted September 26, 2007.

Decided November 12, 2008.

Wayne Mackeson, Portland, argued the cause for appellant. With him on the briefs were Richard H. Braun, and Birmingham & Mackeson, LLP.

Robert L. Winkler, Salem, argued the cause for respondent. With him on the brief was Parks, Bauer, Sime, Winkler & Fernety.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

ARMSTRONG, J.

In March 2003, plaintiff was assaulted and seriously injured by a man named Homer Woods in a convenience store located adjacent to the apartment complex where plaintiff and Woods both lived. Plaintiff¹ subsequently brought this action against the owners of the apartment complex and their property managers, Tabor West Investment Co., LLC and E.C. Owen Property Management, Inc., respectively,² alleging claims for negligence and for damages under ORS 124.100. The trial court granted defendants' motion for summary judgment as to both claims, and plaintiff appeals. As explained below, we affirm.

We consider the facts in the summary judgment record in the light most favorable to plaintiff, the nonmoving party. ORCP 47 C; McCabe v. State of Oregon, 314 Or. 605, 608, 841 P.2d 635 (1992). Woods moved into the Barrington Square Apartments in January 2003. He had recently been released from the Oregon State Hospital following a 10-year commitment based on a judgment of "guilty except for insanity" of attempted first-degree assault and menacing. Owen, defendants' on-site apartment manager,³ rented the apartment to Woods. Owen knew that Woods had spent "five to six or seven years" in the Oregon State Hospital for committing an assault; he also knew that Woods was on medication to "keep him mellow." He understood that the assault had something to do with Woods's military training. Owen did not obtain a credit or criminal history check on Woods before signing the rental agreement. Plaintiff, who is mentally ill, was also a tenant at Barrington Square Apartments and had been since 1997. Owen was aware of plaintiff's mental impairment and knew that he relied on his sister for care and guidance. Owen also knew that plaintiff and Woods regularly talked and observed that plaintiff visited Woods's apartment two or three times a day.

One day, a month or so after he had moved in, Owen asked Woods to turn down the volume on his music. At the time, Woods was standing outside the open door of his apartment. Woods told Owen that if he did not like it, he could call the police. He then went back into his apartment, slammed the door, and turned the music up even louder. He also began to throw items out of his apartment onto the lawn. On the same day, Owen gave Woods a written 60-day "Notice of Termination with Cause"⁴ for violating the terms of his rental agreement—specifically, not keeping noise to a reasonable level. The notice instructed Woods that he would be required to vacate the apartment by April 29 if he did not remedy the problem by April 13. During that evening and into the early morning hours of the next day, Owen saw that Woods "seemed to be on edge, talking to himself in his apartment with his windows open."

Approximately one week later, on March 7, 2003, Owen saw plaintiff and Woods arguing and saw Woods push plaintiff. He did not report the incident to the police nor did he contact plaintiff's sister. Plaintiff's sister stated in an affidavit that she believed that plaintiff would have avoided contact with Woods if someone had told him to do so.

The next day, March 8, Owen saw plaintiff knock on Woods's apartment door. When Woods did not answer, plaintiff stood in front of Woods's window for a few minutes modeling his new coat, then went out the walkway over to the adjacent 7-Eleven store. Woods followed plaintiff and physically assaulted him in the 7-Eleven, resulting in serious injuries to plaintiff.⁵

Plaintiff filed this action, alleging two claims for relief. In the first, plaintiff alleged that defendants were negligent in one or more of the following particulars: (1) failing to keep the premises safe for its tenants; (2) failing to properly investigate Woods's background; (3) failing to warn other tenants concerning Woods despite knowing his history and propensity for violence; (4) failing to evict Woods from the apartment after his violent behavior at the premises; (5) failing to warn other tenants after Woods displayed violent behavior at the premises; (6) renting to Woods despite knowing of his mental illness and violent history; and (7) failing to warn or take other precautions to protect vulnerable tenants from Woods.

Plaintiff's second claim for relief was a claim for damages under ORS 124.100 (2003), which authorized civil actions for the physical or financial abuse of an elderly or incapacitated person.

Defendants moved for summary judgment on both claims, the trial court granted defendants' motion, and plaintiff now appeals. For ease of reference, we discuss each claim—including the trial court's treatment of the claim—separately, beginning with plaintiff's negligence claim.

With respect to that claim, defendants argued below that their liability in negligence was to be determined solely by reference to the landlord-tenant relationship that existed between defendants and plaintiff—rather than by general foreseeability principles— and that, under that relationship, "an off-premises assault by a tenant is not the landlord's responsibility." Essentially, defendants argued that they cannot be held liable for plaintiff's injuries as a matter of law, because they had no duty as a landlord to investigate or evict Woods, nor to warn other tenants of his background or anti-social behavior. Alternatively, defendants contended that they could not be liable even under a general foreseeability theory because "mere facilitation of an unintended adverse result where the intervening intentional criminality of another person is the harm-producing event does not cause the harm so as to support liability for it."

The trial court concluded that the landlord-tenant relationship between defendants and plaintiff was irrelevant because the harm did not occur on the landlord's premises. Instead, citing Park v. Hoffard, 315 Or. 624, 847 P.2d 852 (1993), the court reasoned that defendants' duty to plaintiff was of that owed by a landlord to any third party injured by a tenant of the landlord. Under the Park analysis, the court determined that defendants, as a matter of law, were not liable for the harms to plaintiff because "[d]efendants did not know that [Woods] constituted a danger to anyone at any time when they could terminate Woods's lease unilaterally (that is, at a time when they could exercise some control over Woods)." The court further concluded that, even under a general foreseeability analysis, defendants were not negligent as a matter of law because the intervening criminal conduct of Woods was the harm-producing force; at most, defendants merely facilitated Woods's attack on plaintiff by allowing him to live on their property.

We affirm the trial court's grant of summary judgment only if the record, viewed in the light most favorable to plaintiff, presents no disputed issues of material facts, and the undisputed facts entitled defendants to prevail as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997).

Our starting point is the Supreme Court's decision in Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). The court there 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. The role of the court is what it ordinarily is in cases involving the evaluation of particular situations under broad and imprecise standards: to determine whether upon the facts alleged or the evidence presented no reasonable factfinder could decide one or more elements of liability for one or the other party."

Id. at 17, 734 P.2d 1326. As the parties correctly recognize, a landlord-tenant relationship is a type of special relationship that, under Fazzolari, bears on the determination of defendants' obligations to plaintiff. McPherson v. Oregon Dept. of Corrections, 210 Or.App. 602, 609-10, 152 P.3d 918 (2007). They differ, however, in their assessment of the effect of that special relationship in the negligence analysis. In plaintiff's view because the scope of defendants' duty to plaintiff is not prescribed by either the landlord-tenant relationship or defendants' status as "landlord and possessor of land," that scope is properly determined by reference to common-law principles of reasonable care and foreseeability of harm—that is, whether defendants' alleged conduct unreasonably created a foreseeable risk of the harm suffered by plaintiff. Under that test, plaintiff argues, a reasonable juror could find that defendants' obligations to plaintiff encompassed a duty (1) to warn plaintiff about Woods's background and dangerous propensity and (2) to take reasonable steps to protect plaintiff from Woods, and that defendants breached that duty by failing to do so.

In contrast, defendants assert that the landlord-tenant relationship both defines and limits defendants' duty to plaintiff and, hence, the general foreseeability principles of Fazzolari are simply not...