Slogowski v. Lyness

Decision Date06 December 1996
Citation927 P.2d 587,324 Or. 436
PartiesMichael 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, Petitioner on Review, v. James N. LYNESS and County of Linn, Defendants, and Pacificorp, dba Pacific Power & Light Company, Respondent on Review. CC 90C12373; CA A79627; SC S41955.
CourtOregon Supreme Court

J. Michael Alexander, of Burt, Swanson, Lathen, Alexander, McCann & Smith, P.C., Salem, argued the cause and filed the briefs for petitioner on review.

Andrew R. Gardner, of Stoel Rives, Portland, argued the cause for respondent on review. With him on the brief was Charles F. Adams.

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

CARSON, Chief Justice.

In this negligence action, we must decide whether plaintiff has stated a claim against defendant Pacificorp ("defendant"). The trial court 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 relief," a motion for a judgment on the pleadings should be granted. Hawkins v. Conklin, 307 Or. 262, 264, 767 P.2d 66 (1988). We note, however, that motions for judgments on the pleadings are not favored, and amendments should be granted readily so as to preclude the entry of such a judgment. Cole v. Zidell Explorations, Inc., 275 Or. 317, 322, 550 P.2d 1194 (1976); see also Scott & Payne v. Potomac Ins. Co., 217 Or. 323, 329-30, 341 P.2d 1083 (1959) ("A motion for judgment on the pleadings * * * cannot be used as a substitute for [an ORCP 21 A motion] if the complaint was amendable so as to state a good cause of action."). Upon review of a judgment on the pleadings in this procedural posture, we accept the well-pleaded allegations of fact contained in plaintiff's complaint as true. 1 See Straub v. Oregon Electric Ry. Co., 163 Or. 93, 96, 94 P.2d 681 (1939) (stating that "a motion for judgment on the pleadings admits * * * all the facts well pleaded").

Plaintiff's complaint alleges the following facts. In December 1987, defendant was the holder of an easement that gave defendant the right to erect and maintain electrical power lines across real property belonging to Lyness that was located in Linn County. The easement also gave defendant the right to "remove foliage, tree limbs, and trees that may intrude with the construction, maintenance and operation of the * * * lines across the subject property." Plaintiff's complaint also alleges that defendant "undertook to inspect all trees along its right-of-way, and to remove trees with hazardous defects."

A large fir tree located on Lyness' real property was within the boundaries of defendant's easement. Plaintiff's complaint alleges that, for at least five years before December 1987, the tree had a hazardous condition that would have been discoverable upon inspection.

On December 9, 1987, plaintiff's wife was driving on a road adjacent to Lyness' real property. Plaintiff's four children also were in the vehicle. As plaintiff's wife drove past Lyness' real property, the fir tree broke off and fell across the roadway and on top of the vehicle. Three of the children were killed from the impact of the tree, and the fourth child was injured. Defendant's power line also was knocked down, but did not contribute to the deaths of the three children or to the injuries of the fourth child. 2

Plaintiff, in his capacity as personal representative for his three deceased children and guardian ad litem for his injured child, filed this negligence action against Lyness, Linn County, and defendant. 3 The trial court dismissed plaintiff's initial complaint, as well as an amended complaint, for failure to state facts sufficient to constitute a claim for relief. ORCP 21 A(8). After plaintiff filed a second amended complaint, defendant filed an answer and also moved for a judgment on the pleadings. ORCP 21 B. Before the trial court ruled upon that motion, plaintiff filed a third amended complaint, alleging additional facts that supported plaintiff's claim against defendant. The trial court then entered a judgment on the pleadings, ruling that defendant's status as an easement holder did not give rise to any liability for harm caused by decaying trees located upon the real property subject to the easement.

Plaintiff appealed to the Court of Appeals, arguing that, "by failing to properly inspect the tree, notice its decayed condition and take appropriate precautions to prevent it from falling on the roadway, [defendant] unreasonably created a foreseeable risk of harm to a protected interest of plaintiff and his children." Slogowski, 131 Or.App. at 216, 884 P.2d 566. The Court of Appeals affirmed the trial court's judgment, stating that, "[u]nder the facts alleged in this case, [defendant] could not be found to have engaged in unreasonable conduct, as a matter of law." Id. at 218, 884 P.2d 566. We allowed plaintiff's petition for review.

In order to state a negligence claim under principles of general foreseeability, plaintiff's complaint

"must allege facts from which a factfinder could determine (1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent." Solberg v. Johnson, 306 Or. 484, 490-91, 760 P.2d 867 (1988).

Plaintiff's complaint alleges, in part:

"7.

"The Defendant * * * had an easement for its power lines which gave it the right to erect and maintain electrical power lines across the property of * * * Lyness[ ], such easement encompassing the location of the tree which fell and caused the injuries hereafter alleged. Such easement gave [defendant] the right to remove foliage, tree limbs, and trees that may intrude with the construction, maintenance and operation of the * * * lines across the subject property, and gave [defendant] the right to have access to such right-of-way for the purpose of repairs. The Defendant * * * had an ongoing obligation to inspect trees along its right-of-way to prevent them from falling on the power lines and/or falling into the adjoining highway, and undertook to inspect all trees along its right-of-way, and to remove trees with hazardous defects.

"8.

"At all times mentioned herein, Plaintiff's Decedents and [plaintiff's injured child] were passengers in a vehicle driven by [plaintiff's wife] in a Westerly direction on SE Kingwood near the City of Lyons, County of Linn, State of Oregon.

"9.

"For a period of at least 5 years before December 9, 1987 a large fir tree * * * within the easement granted to [defendant], had either broken or been cut off at its top, and had developed an adventitious growth, causing a forked structure at the top of the tree. The break or cutting also allowed the development of decay in the area of this adventitious growth. The conditions resulted in a weak branch stem union which was readily discoverable upon inspection. The condition of the tree, coupled with its position on the south side of the roadway, presented a significant foreseeable danger of tree failure and resulting collapse into the area of the roadway on which drivers and passengers of vehicles, such as the plaintiffs in this case, would be travelling.

"10.

"On or about December 9, 1987, at approximately 5:45 p.m., a large fir tree approximately 18 inches in diameter broke off and fell across the roadway, bringing down the Defendant['s] * * * power line, with the tree striking the top of the vehicle which [plaintiff's wife] was driving. The impact from the tree caused the death of Plaintiff's Decedents and injury to [plaintiff's fourth child]. The failure of the tree, and the resulting accident and injury to the [plaintiff and plaintiff's injured child], and the death of the Plaintiff's decedent[s] was the result of the Defendant['s] negligence in failing to properly inspect the...

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