Slogowski v. Lyness
Decision Date | 02 November 1994 |
Citation | 884 P.2d 566,131 Or.App. 213 |
Court | Oregon Court of Appeals |
Parties | Michael SLOGOWSKI, as Personal Representative of the Estates of Jason Steve Slogowski, Rachael Michelle Slogowski and Tanya Slogowski, Deceased, and as Guardian Ad Litem for April M. Slogowski, a Minor, Appellant, v. James N. LYNESS and County of Linn, Defendants, and PacifiCorp, dba Pacific Power & Light Company, Respondent. 90C12373; CA A79627. |
J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann.
Andrew Gardner, Portland, argued the cause for respondent. With him on the brief were Charles F. Adams and Stoel Rives Boley Jones & Grey.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
Plaintiff appeals from a judgment on the pleadings, dismissing plaintiff's negligence claim against defendant PacifiCorp. We affirm.
When we review a judgment on the pleadings, we must accept the allegations of fact in the pleadings as true. Beason v. Harcleroad, 105 Or.App. 376, 379-80, 805 P.2d 700 (1991). The pleadings reveal the following facts.
PacifiCorp maintained power lines on the easement.
During a windstorm, a portion of the tree broke off and fell onto the highway, just as plaintiff was driving by. The tree branch hit plaintiff's car, killing three of his children and injuring another.
In its answer, PacifiCorp admitted that it was successor-in-interest to a power line easement and attached the terms of the easement to the answer. It denied all other allegations.
PacifiCorp moved for a judgment on the pleadings. The trial court granted the motion and entered judgment under ORCP 67 B. Plaintiff appeals, assigning error to the entry of judgment on the pleadings in favor of PacifiCorp.
Plaintiff argues that the trial court erred, because the allegations of his complaint raise at least a factual question as to PacifiCorp's liability. Relying on Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), plaintiff argues that, by failing to properly inspect the tree, notice its decayed condition and take appropriate precautions to prevent it from falling on the roadway, PacifiCorp unreasonably created a foreseeable risk of harm to a protected interest of plaintiff and his children. PacifiCorp argues that, as a matter of law, it cannot be held liable on the facts as alleged, because it had no duty to protect individuals using a public highway from natural conditions existing on the private property of a third person.
We review the trial court's entry of judgment on the pleadings to determine whether "the pleadings, taken together, affirmatively show that plaintiff has no cause of action against the defendant * * *." Scott & Payne v. Patomac Ins. Co., 217 Or. 323, 330, 341 P.2d 1083 (1959); Thompson v. Telephone & Data Systems, Inc., 130 Or.App. 302, 309, 881 P.2d 819 (1994).
Analysis of the sufficiency of plaintiff's negligence allegations begins with the Supreme Court's decision in Fazzolari. In that case, the court held that
Plaintiff argues that PacifiCorp, as an owner or possessor of land, is subject to a special duty to use reasonable care to prevent natural conditions on its property from injuring...
To continue reading
Request your trial-
Iglehart v. Board of County Commissioners of Rogers County
...substandard maintenance of trees could foreseeably cause danger to the public. The reasoning expressed by the Oregon Supreme Court in Slogowski v. Lyness23 (as well as by the Pennsylvania Superior Court in Beury v. Hicks)24 is persuasive here. In Slogowski the court recognized that it was p......
-
Slogowski v. Lyness
...entered a judgment on the pleadings in favor of defendant, pursuant to ORCP 21 B. The Court of Appeals affirmed. Slogowski v. Lyness, 131 Or.App. 213, 884 P.2d 566 (1994). We reverse. "[W]hen the pleadings, taken together, affirmatively show that the plaintiff has not stated a claim for rel......
-
Slogowski v. Lyness and Pacificorp
...468 894 P.2d 468 321 Or. 137 Slogowski v. Lyness and Pacificorp NOS. A79627, S41955 Supreme Court of Oregon May 16, 1995 131 Or.App. 213, 884 P.2d 566 ...