Piazza ex rel. Piazza v. Kellim

Decision Date21 July 2016
Docket NumberS063442 (Control),S063451
Citation360 Or. 58,377 P.3d 492
CourtOregon Supreme Court
Parties Patricia Piazza, acting on behalf of Farley Piazza and Associates and as Personal Representative of the Estate of Martha Paz De Noboa Delgado, deceased, Respondent on Review, v. Bryan Kellim, dba 99 Pawn & Guns, Defendant, and Five Stars, Inc., dba The Zone; Concept Real Estate, LLC; and Concept Entertainment Group, Ltd., Defendants–Respondents, and Rotary International and Rotary International District 5100, Petitioners on Review. Patricia Piazza, acting on behalf of Farley Piazza and Associates and as Personal Representative of the Estate of Martha Paz De Noboa Delgado, deceased, Respondent on Review, v. Bryan Kellim, dba 99 Pawn & Guns, Defendant, and Five Stars, Inc., dba The Zone; Concept Real Estate, LLC; and Concept Entertainment Group, Ltd., Petitioners on Review, and Rotary International and Rotary International District 5100, Defendants–Respondents.

Jonathan Henderson, Davis Rothwell Earle & Xóchihua, P.C., Portland, argued the cause and filed the brief for petitioners on review Rotary International and Rotary International District 5100. With him on the brief were William Davis and Christopher M. Parker.

James L. Hiller, Hitt Hiller Monfils Williams LLP, Portland, argued the cause and filed the brief for petitioners on review Five Stars, Inc., dba The Zone; Concept Real Estate, LLC, and Concept Entertainment Group, Ltd.

J. Randolph Pickett, Pickett Dummigan LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief were R. Brendan Dummigan, Kristen West McCall, Kimberly O. Weingart, Ron K. Cheng, and Benjamin B. Grandy, Law Office of Benjamin B. Grandy, P.C., Beaverton.

Kathryn H. Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

En Banc

BREWER, J.

In this negligence action, plaintiff, the personal representative of the estate of Martha Delgado, alleged in her complaint1 that Delgado—a foreign exchange student staying in this country under the supervision of defendants Rotary International and Rotary International District 5100 (the Rotary defendants)—was shot and killed by an assailant while standing in line on a public sidewalk outside the Zone, a teenage nightclub in Portland owned by several business entities (the Zone defendants).2

On defendants' motion, the trial court dismissed plaintiff's complaint on the ground that plaintiff had failed to state facts sufficient to constitute a claim for relief with respect to the issue whether Delgado's death was a foreseeable result of defendants' conduct. See ORCP 21 A(8) (providing for dismissal for “failure to state ultimate facts sufficient to constitute a claim”). A divided panel of the Court of Appeals reversed the ensuing judgment dismissing this action. Piazza v. Kellim , 271 Or.App. 490, 354 P.3d 698 (2015). On review, we conclude that plaintiff alleged facts that—if proved—were sufficient to permit a reasonable juror to find that Delgado's death was a reasonably foreseeable result of defendants' conduct. Accordingly, we affirm the decision of the Court of Appeals, and we reverse the judgment dismissing this action and remand to the trial court.

I. FACTS AND PROCEDURAL HISTORY A. The Complaint

Because this is an appeal from a trial court judgment dismissing a complaint under ORCP 21 A(8), we assume that all well-pleaded facts are true and give plaintiff the benefit of all favorable inferences that reasonably may be drawn from those factual allegations. See, e.g. , Caba v. Barker , 341 Or. 534, 536, 145 P.3d 174 (2006) (stating standard of review). Plaintiff alleged that Delgado, age 17, was staying with a host family in White Salmon, Washington, as part of an international exchange program sponsored and managed by the Rotary defendants. On January 24, 2009, a group of approximately 14 Rotary exchange students, including Delgado, gathered at the home of the host parents of one of the students for a birthday celebration. Later in the evening, the host parents drove the group to the Zone. The Zone was an underage nightclub that admitted people ages 16 to 21 and featured dancing. The Zone was located in the Old Town/Chinatown neighborhood” bordering downtown Portland; it also was part of what is referred to by police as the “downtown entertainment district,” which consists of several streets where nightclubs and bars are located. The Zone frequently had a “cordoned-off line of customers on the sidewalk outside the club waiting to get in.” The host parents dropped the students off near the Zone without a chaperone and planned to pick them up at 1:00 a.m.

Delgado and the other exchange students were waiting on the sidewalk to get into the Zone when an assailant, Ayala, shot Delgado twice. Delgado died as a result of her injuries. Ayala, who previously had been diagnosed with schizophrenia and had exhibited obvious signs of mental illness and depression to coworkers, “went to the Zone nightclub looking to shoot ‘preppies' or ‘pop tweens,’ against who[m] he may have held a grudge.” Before shooting Delgado, Ayala had stood in front of the Zone and loaded his pistol.

Delgado's shooting was not the first at that particular location. In July 2002, a shooter fired into a crowd of people standing outside the nightclub, striking three people. At that time, the club had a different name, but it was owned and operated by the Zone defendants. There also had been a “history of fights and assaults in the line outside the nightclub.” In addition, the area surrounding the Zone had experienced violent crimes before the 2009 shooting. In the years preceding the 2009 shooting, the downtown entertainment district was “plagued by recurrent incidents of violence,” which were “linked by police to gang activity and to clubs in the district exceeding capacity and serving too much alcohol.” In 2005, a series of shootings left two people dead and four injured. “It was known by Portland police and club owners alike that there was a high probability that more shootings would take place in the downtown entertainment district.” As a consequence, police “blanketed the downtown entertainment district with police officers to ease fear.” The effort, which was called “Operation Safe Streets,” included at least two dozen police officers patrolling on foot and horseback on Friday and Saturday nights through early morning, and gang enforcement officers, traffic safety officers, parole officers, and liquor control investigators were also on patrol. Owners of area nightclubs were asked to close early on weekend nights and were advised to have adequate security, cut off all intoxicated customers, and respond swiftly to problems or notify police.

After violence continued in the downtown entertainment district, in August 2006, Portland police called a “bar summit” with owners and managers of downtown bars and nightclubs to help them adopt policies to reduce violence. At the meeting, which included a representative of one of the Zone defendants, businesses and police addressed, among other issues, the shootings in the Old Town/Chinatown neighborhood. At the summit, police and businesses also addressed whether the violence on downtown sidewalks and in parking lots was related to intoxicated club-goers (as police believed) or drug dealers (as clubs contended).3

By January 2009, the Old Town/Chinatown neighborhood “had approximately fourteen agencies serving addicted, mentally ill, and homeless people, more than any other neighborhood in the city, with thousands of clients coming to the area every day. Many of those clients bought drugs.” “Drug dealers, drug users and gang members, all of whom frequented the area where the Zone nightclub was located, frequently carried weapons * * *.” [S]ome club owners, realizing that their clients were in danger of violent assault, increased security at their bars and nightclubs.” In 2006, a principal of one of the Zone defendants “acknowledged downtown safety problems, but said they were created by ‘a few bad apples,’ and that police, liquor control, and others should work together for the benefit of club-goers.”

Before the shooting, the Zone had undertaken some measures to provide security for customers inside and outside the club. Those measures included:

(a) The Zone had an employee whose primary responsibility was monitoring customers as they come and go from the club. The employee was to assist in line control; to distance ‘undesirables,’ i.e. intoxicated persons, harassers, transients, known trouble makers, or gang affiliated persons from guests; and to monitor the parking lot and deter potential guests from loitering in or around their cars;
(b) The Zone nightclub had a security camera that monitored the outside of their establishment;
(c) The Zone nightclub had a security guard or door-person at the door outside of the premises who frisked everyone before entry, checking for drugs, alcohol, firearms, or other weapons;
(d) In the past, the Zone had hired off-duty police officers to provide security for their customers; [and]
(e) On or about 2006, [t]he Zone nightclub remodeled its facilities in the hopes of attracting a better clientele and reducing problems at the club including violence.”

Thus, plaintiff alleged, the Zone defendants “knew about the risk of violence that its customers faced.”

Plaintiff further alleged that underage nightclubs generally are understood to pose “inherent” risks of violence because of the high proportion of young male patrons, high noise levels, crowding, competitive environment, and underage drinking. “A metropolitan nightclub may see as many as three or four assaults on staff each night and are often confronted with armed patrons. Shootings, stabbings, felonious assaults, drug violations, and/or murders are commonplace in metropolitan nightclubs across the country.” In fact, several cities...

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