Scovill By and Through Hubbard v. City of Astoria

• Decision Date: 06 September 1996
• Citation: 324 Or. 159,921 P.2d 1312
• Parties: Marilyn Ann SCOVILL, by and through the Personal Representative of her Estate, Naomi Scovill HUBBARD, Respondent on Review, v. CITY OF ASTORIA, a municipal corporation, Petitioner on Review, and James M. Guynup, Respondent. CC 90-2134; CA A75790; SC S41871.
• Court: Oregon Supreme Court

Page 1312

921 P.2d 1312

324 Or. 159

Marilyn Ann SCOVILL, by and through the Personal Representative of her Estate, Naomi Scovill HUBBARD, Respondent on Review, v. CITY OF ASTORIA, a municipal corporation, Petitioner on Review and James M. Guynup, Respondent.

CC 90-2134; CA A75790; SC S41871.

Supreme Court of Oregon.

Argued and Submitted Nov. 9, 1995.

Decided Sept. 6, 1996.

Janet Schroer, of Hoffman, Hart & Wagner, Portland, argued the cause and filed the petition for petitioner on review.

Joseph A. Di Bartolomeo, of Patrick Lavis, P.C., Astoria, argued the cause and filed the brief for respondent on review.

Maureen Leonard, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. With her on the brief was Kathryn H. Clarke.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER, and DURHAM, JJ. ^*

FADELEY, Justice.

In this tort case, Marilyn Scovill, while intoxicated, walked into a city street against a red light and was struck and killed by an oncoming vehicle. This case arises out of the fact that Scovill died just after leaving the City of Astoria's police station. The city is the defendant here because police officers employed by it failed to take Scovill into protective custody or to a treatment facility for the intoxicated, although they had an opportunity and, it is alleged, reasonable grounds to do so before she left the station.

At the time of Scovill's death, ORS 426.460(1) (1989), now numbered ORS 430.399, provided:

"Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance." (Emphasis added.)

Enactment of that statute established what the police could do and, in certain circumstances, were required to do. The statute said nothing, however, concerning what consequences could flow if the police failed to act.

When liability is the question, ORS 426.470 (1989), now numbered ORS 430.401, enacted simultaneously with ORS 426.460, is equally applicable text. It provides in part:

"No peace officer * * * shall be held criminally or civilly liable for actions pursuant to ORS 426.450 to 426.470 * * * provided the actions are in good faith, on probable cause and without malice." (Emphasis added.)

The significant issues in this case are two: (1) whether, notwithstanding ORS 426.470, a statutory tort arises from failure to follow the commands of ORS 426.460, ¹ or 2) whether that statute enacts a standard of care, the violation of which may constitute negligence per se. Both issues depend on interpretation of that statute. A third issue concerns an evidentiary ruling: Whether the trial court erred by excluding introduction of ORS 426.460 in evidence during the trial of plaintiff's common law negligence claim.

Plaintiff, the personal representative of Scovill's estate, sought damages from the City of Astoria for Scovill's death. Plaintiff alleged three separate claims for relief against defendant. The first claim alleged common law negligence based on reasonable foreseeability of the kind of harm that occurred. The second alleged a statutory tort, that is, failure to perform a duty imposed by ORS 426.460 to protect the decedent by taking her to a detoxification facility. The third claim alleged negligence per se for failure to exercise the standard of care allegedly established by ORS 426.460(1). ²

The city moved to dismiss all of plaintiff's claims under ORCP 21 A(8), for failure to state facts sufficient to constitute a claim. ³ In support of its motion to dismiss, defendant argued, inter alia, that statutory "immunity" from liability was granted by ORS 426.470 in the context of this complaint and, therefore, that no facts were, or could be, alleged that would suffice to constitute a claim. The trial court dismissed plaintiff's claims for a statutory tort and for negligence per se, but sent the claim for common law negligence to trial. A jury rendered its verdict for defendant city. ⁴

During trial of the first claim, for common law negligence, plaintiff sought to introduce in evidence a copy of ORS 426.460 et seq. and related implementing policies of defendant's police department. Although no statute, statutory duty, or statutory standard of care was alleged in plaintiff's first claim, plaintiff contended to the trial court that the statute established the standard of care applicable to the common law negligence claim. ⁵ The trial court excluded that evidence, and, as noted, the jury returned a verdict for defendant. Judgment for defendant was entered on all claims.

Plaintiff appealed, assigning error to the dismissal of her second and third claims under ORCP 21. She also assigned error to the ruling excluding evidence of the provisions of ORS 426.460 et seq., during trial of the first claim. The Court of Appeals reversed the trial court's judgment for defendant as to all claims and remanded them--for a new trial on the first claim and for further proceedings on the second and third claims. Scovill v. City of Astoria, 129 Or.App. 240, 246, 878 P.2d 1127, modified 130 Or.App. 425, 882 P.2d 1126 (1994).

We allowed defendant's petition for review. We agree with the Court of Appeals, although for different reasons, as to the second claim, and remand it for further proceedings, but disagree as to the first and third claims, on which we affirm the judgment for defendant.

We turn first to the claims that were dismissed under ORCP 21 A(8). In Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992), this court described the rule applicable to our review of a dismissal under ORCP 21 A(8):

"[W]e accept all well-pleaded allegations of the complaint as true and give plaintiffs the benefit of all favorable inferences that may be drawn from the facts alleged." (Citation omitted.)

That is, "we determine only whether those facts are sufficient to constitute a claim." Fuhrer v. Gearhart By The Sea, Inc., 306 Or. 434, 436, 760 P.2d 874 (1988). Under that rule, plaintiff alleged sufficient facts under the second claim, if ORS 426.460(1) and 426.470 support statutory tort liability, or under the third claim, if ORS 426.460(1) defines a standard of care that is actionable in negligence.

The third amended complaint alleged that a friend brought decedent, a chronic alcoholic with a history of interaction with local police, to defendant's police station. Decedent was visibly intoxicated and disoriented, such that she was unable to take care of herself. She recently had threatened violence toward herself and others. Decedent's friend advised the police of decedent's condition, of her threatening and destructive behavior, and of her need for medical help or detoxification.

The police observed decedent lying on the station floor, apparently unable to talk coherently. The police removed three butcher's knives from decedent's person. Decedent's friend left the station after the police assured the friend that decedent would be cared for and, if necessary, taken to a detoxification facility. The complaint alleged that the city police had decedent "under their supervision and control" but that, fully aware of the danger that decedent presented to herself or others, the police nonetheless allowed her to leave the station on her own. Whereupon, it is alleged, the police observed decedent walking from the station on a public sidewalk toward an intersection one block away and, from that point, against the light into a lane of traffic, where she was struck and killed.

Plaintiff's second claim realleged the facts alleged under the first claim and, additionally, alleged that the decedent was in a public place both at the police station and on the sidewalk; that the police knew that ORS 426.460(1) provided authority for them "to detoxify a person in a visibly intoxicated condition"; that defendant had an approved treatment facility or a facility for holding an intoxicated person; and that, based on ORS 426.460, the police should have hospitalized or otherwise detained and detoxified decedent in a treatment or other appropriate facility for her own safety. The second claim further alleged:

"The Decedent was in such an intoxicated condition that she was at a risk to herself and others. Knowing said condition, the City of Astoria violated said statutory law, resulting in the death of Marilyn Ann Scovill. The Decedent's death occurred because the City of Astoria's police officers failed to comply with ORS 426.40."

Plaintiff's third claim realleged all the allegations of the first and second claims, including references to ORS 426.460(1), and added:

"Based upon the allegations of this Complaint, the Defendant, City of Astoria, acting through it's [sic ] police officers in the scope and course of their employment was negligent in failing to exercise reasonable care to detox the Decedent, when they knew, or in the exercise of reasonable care should have known that if she were left unsupervised, unattended, and not provided the benefits of detoxification, it could result in her death."

We take the allegations of the third claim just quoted, together with reallegation of the second claim relative to the statute, as alleging that the police negligently failed to exercise the level of care allegedly specified in the statute, i.e., as alleging negligence per se based on a statutory standard of care.

We turn to an examination of ORS 426.460(1) and ORS 426.470 to determine whether, when read...