Ollison v. Weinberg Racing Ass'n, Inc.

Decision Date12 September 1984
Citation69 Or.App. 653,688 P.2d 847
PartiesMary 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.
CourtOregon 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.

The allegations of negligence in the complaints are identical. Plaintiffs allege that they were patrons of the Portland Meadows Race Course on January 23, 1980, which was "Fan Appreciation Night," when beer was sold on the premises for less than half the usual price. A patron, Thurman, fired a gun, causing a stampede of other patrons in which plaintiffs were knocked to the ground, trampled and injured. With respect to defendant Weinberg Racing Association, Inc. (Weinberg), which operates Portland Meadows Race Track, plaintiffs allege that their injuries were

" * * * caused by defendant Weinberg's negligence in one or more of the following particulars:

"1) In failing to exercise reasonable care to protect its patrons from harmful acts of third parties when it knew or had reason to know of the likelihood of such acts based on past experience;

"2) In failing to exercise due diligence to discover that acts harmful to its patrons were being done or were about to be done by third parties when it knew or had reason to know of the likelihood of such acts;

"3) In failing to exercise reasonable care to protect its patrons from harmful acts of third parties when it should reasonably have anticipated the likelihood of such acts based on the character of its business as a race track;

"4) In failing to exercise reasonable care to protect its patrons from harmful acts of third parties when it should reasonably have anticipated the likelihood of such acts based upon the fact that beer was available for consumption on the premises by patrons for less than half the usual price;

"5) In failing to provide adequate security personnel to police its premises when it knew or had reason to know of the likelihood of such acts as described above."

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:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or "(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

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:

"f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."

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):

"1. * * * Foreseeability is an element of fault; the community deems a person to be at fault only when the injury caused by him is one which could have been anticipated because there was a reasonable likelihood that it could happen.

"2. Thus fault, as the term is usually understood, is not associated with conduct which causes harm through the concatenation of highly unusual circumstances. If, in our appraisal of the community's conception of fault, we find that the conduct in question clearly falls outside the conception, we are charged with the duty of withdrawing the issue from the jury.

"3. The specific question before us is, then, whether plaintiff's injury and the manner of its occurrence was so highly unusual that we can say as a matter of...

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7 cases
  • Senger v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 27, 1996
    ...be of the type or kind of harm that could be anticipated from the allegedly tortious conduct. See Ollison v. Weinberg Racing Ass'n, 69 Or.App. 653, 688 P.2d 847, 851 (1984) (Ollison ) ("the question is whether the harm is of the general kind to be anticipated from the I focus only on whethe......
  • Jackson v. Olson
    • United States
    • Oregon Court of Appeals
    • December 18, 1985
    ...cited an Oregon case which deals with the specific question presented here, and we have found none. 3 In Ollison v. Weinberg Racing Assoc., 69 Or.App. 653, 655-56, 688 P.2d 847 (1984), we explained: "To state a cause of action in negligence, a plaintiff must allege that the defendant owed a......
  • Pickens v. U.S.
    • United States
    • U.S. District Court — District of Oregon
    • November 10, 2010
    ...Pickens relies primarily on this principle of Oregon law to argue that her injury was foreseeable.8 In Ollison v. Weinberg Racing Assoc., Inc., 69 Or.App. 653, 688 P.2d 847 (1984) spectators at a racing track on “Fan Appreciation Night,” where alcohol was sold at less than half the normal p......
  • Kimbler v. Stillwell
    • United States
    • Oregon Court of Appeals
    • June 24, 1986
    ...of the guns and the resulting injury were so highly unusual that the harm could not be foreseen. See Ollison v. Weinberg Racing Assoc., supra n. 3, 69 Or.App. at 658-59, 688 P.2d 847. We reject defendant's position "[p]laintiff's foreseeability of the risk of harm argument is based on the n......
  • Request a trial to view additional results
3 books & journal articles
  • §23.3 Causation
    • United States
    • Torts (OSBar) Chapter 23 Toxic Torts
    • Invalid date
    ...See, e.g., Brennen v. City of Eugene, 285 Or 401, 413, 591 P2d 719 (1979); Ollison v. Weinberg Racing Ass's, Inc., 69 Or App 653, 660, 688 P2d 847 (1984); UCJI Nos. 23.01, 23.02 (and commentary). Legal cause is established by a preponderance of the evidence. ORS 10.095; Riley Hill General C......
  • §8.7 Plaintiff in Foreseeable Class; Injury of a General Type Foreseeable
    • United States
    • Torts (OSBar) Chapter 8 Negligence: the Basic Elements
    • Invalid date
    ...Stewart, 255 Or at 609, the exact sequence of events need not be foreseeable, Ollison v. Weinberg Racing Ass'n, Inc., 69 Or App 653, 659, 688 P2d 847 (1984) (when drunken patron shot gun, causing stampede of other patrons that injured plaintiff, "it is not necessary that the exact manner of......
  • §8.6 Cause in Fact
    • United States
    • Torts (OSBar) Chapter 8 Negligence: the Basic Elements
    • Invalid date
    ...and the exact nature of the harm need not have been foreseeable. Thus, in Ollison v. Weinberg Racing Ass'n, Inc., 69 Or App 653, 661, 688 P2d 847 (1984), the plaintiff was allowed to sue both a racing association and an alcohol provider, alleging that both were at fault in inebriating a fan......

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