Ollison v. Weinberg Racing Ass'n, Inc.
Decision Date | 12 September 1984 |
Citation | 69 Or.App. 653,688 P.2d 847 |
Parties | Mary J. OLLISON, Appellant, v. WEINBERG RACING ASSOCIATION, INC., an Oregon corporation dba Portland Meadows Race Course, and Oregon Concession Services, Inc., an Oregon corporation, Respondents. Tommy Lee NICHOLS, Appellant, v. WEINBERG RACING ASSOCIATION, INC., an Oregon corporation dba Portland Meadows Race Course, and Oregon Concession Services, an Oregon corporation, Respondents. A8201-00435 & A8201-00436; CA A26274. |
Court | Oregon Court of Appeals |
Gregory Kafoury, Portland, argued the cause for appellants. With him on the briefs was Kafoury & Hagen, Portland.
Lisa C. Brown, Portland, argued the cause for respondent Weinberg Racing Association, Inc. With her on the brief was Black, Tremaine, Higgins, Lankton & Krieger, Portland.
James K. Belknap, Portland, argued the cause and filed the brief for respondent Oregon Concession Service, Inc.
Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ. RICHARDSON, Presiding Judge.
Plaintiffs appeal judgments entered after their respective complaints were dismissed under ORCP 21A(8) for failure to state a claim. The cases have been consolidated for appeal. We reverse and remand.
To state a cause of action in negligence, a plaintiff must allege that the defendant owed a duty of care, that defendant breached that duty and that the breach was the cause in fact of some legally cognizable damage to the plaintiffs. Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979). In evaluating a Rule 21A(8) dismissal, we take as true the allegations of the complaint and "any facts which might conceivably be adduced as proof of such allegations." See Brennen v. City of Eugene, supra, 285 Or. at 405; see also Mezyk v. National Repossessions, 241 Or. 333, 339, 405 P.2d 840 (1965).
Weinberg concedes that it owes a duty to its patrons to exercise reasonable care to protect them from injury by other patrons. However, it argues that that duty does not extend to the provision of security personnel and that it does not extend to protection from injury under the allegedly highly unusual and unforeseeable circumstances alleged here. "Duty" is "an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' " Mezyk v. National Repossessions, supra, 241 Or. at 336, quoting Prosser, Law of Torts, § 333 (3rd ed 1964). Ordinarily an individual is under no duty to protect another from the criminal acts of a third party. However, Oregon appellate courts have applied the standard expressed in § 344 of the Restatement (Second) Torts:
Brown v. J.C. Penney Co., 297 Or. 695, 688 P.2d 811 (1984); Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Torres v. United States Nat. Bank, 65 Or.App. 207, 670 P.2d 230, rev. den. 296 Or. 237, 675 P.2d 491 (1983). These cases also approve comment f of that Restatement section, which states that the possessor must have some kind of notice before a duty to provide security personnel arises:
In support of its contention that it had no duty to provide security, Weinberg cites Uihlein v. Albertson's, Inc., supra, in which the plaintiff was assaulted in the defendant's supermarket by an unknown person. The court affirmed a summary judgment for the defendant, finding that it was not negligent in failing to provide security inside the store. The court applied Restatement (Second) Torts, § 344, and held that evidence that assaults were likely to be committed in the vicinity of the store did not put the defendant on notice of the likelihood of harmful acts inside the store.
Weinberg also cites Rosensteil v. Lisdas, 253 Or. 625, 456 P.2d 61 (1969), in which the Supreme Court found that the duty to provide security did not extend to a situation in which the plaintiff was injured in the defendant's all-night restaurant when a group of brawling men ran into the restaurant from outside. The court emphasized that, even though there had been previous incidents which "swept in from the streets," it was unreasonable to find that defendants should have anticipated that "outsiders [would] elect to use the restaurant rather than the street as their battleground." 253 Or. at 630, 456 P.2d 61. In Gross v. Wiley, 231 Or. 421, 373 P.2d 421 (1962), the plaintiff was kicked by a patron outside a public dance hall. The court applied a standard expressed in a Restatement section which has now been superseded by § 344 and found that there was no evidence that defendants should have anticipated the incident and no evidence regarding the adequacy of security at particular times or locations.
We do not consider those cases to be in point here. Plaintiffs allege that, on the basis of past experience, Weinberg knew or had reason to know of the likelihood of such harmful acts by third parties. We conclude that plaintiffs could conceivably prove facts to demonstrate notice sufficient under the standard of § 344.
Weinberg argues that plaintiffs did not plead facts showing that it was on notice of the likelihood of a third party's intentional criminal acts. Its criticism, even if well taken, does not provide a ground for an ORCP 21A(8) motion to dismiss. If it wanted more specific information regarding the factual basis of plaintiffs' case, other procedures (such as discovery or an appropriate motion) were available.
In order for a defendant to be subject to liability for negligence, the breach of duty must cause foreseeable harm. Weinberg argues that plaintiffs' injuries were unforeseeable as a matter of law. It contends that it is not the insurer of the safety of its patrons and cannot be expected to anticipate "unusual crowd movements resulting from a highly unusual act of a patron." The determination of when harm is caused by such highly unusual circumstances that it is not actionable was discussed in Stewart v. Jefferson Plywood Co., 255 Or. 603, 609-10, 469 P.2d 783 (1970):
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