Stewart v. Jefferson Plywood Co.

• Decision Date: 28 May 1970
• Citation: 255 Or. 603,469 P.2d 783
• Parties: David Dean STEWART, Respondent, v. JEFFERSON PLYWOOD COMPANY, an Oregon corporation, Appellant.
• Court: Oregon Supreme Court

Page 783

469 P.2d 783

255 Or. 603

David Dean STEWART, Respondent, v. JEFFERSON PLYWOOD COMPANY, an Oregon corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton, Oct. 27, 1969.

Decided May 28, 1970.

William M. Holmes, Bend, argued the cause for appellant. On the briefs were Gray, Fancher, Holmes & Hurley, Bend.

R. L. Marceau, Bend, argued the cause for respondent. With him on the brief were McKay, Panner, Johnson & Marceau, Bend.

Before PERRY,* C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,** DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries incurred by plaintiff while attempting to extinguish a fire which was started by defendant's employee. Defendant demurred to plaintiff's complaint on the ground that it failed to state a cause of action. The demurrer was overruled. The court also denied defendant's motion for a judgment of involuntary nonsuit. The jury returned a verdict in favor of plaintiff. Defendant appeals.

Defendant is the owner of a sawmill in Madras, Oregon. In the afternoon of August 3, 1966, one of the defendant's employees was at work in the mill constructing a piece of mill equipment with the use of an electric cutting and welding tool. Sparks and slag from the welding operation ignited sawdust near the working area, which spread through the mill. The fire subsequently spread to defendant's log deck approximately 1,000 feet from the mill. Sparks from the log deck began to fall on the roof of the Pacific Supply Cooperative warehouse which was across a railroad right of way from the log deck. Fire fighting equipment was brought to the scene of the fire and efforts were made to keep the fire from spreading to the warehouse.

Plaintiff first learned about the fire while at home listening to the radio. It was reported that the fire was out of control and that 'they could use all the help they could get.' Plaintiff drove his car to the warehouse and asked one of the firemen where he could be of assistance. He was informed that men were needed on the warehouse roof to put out the sparks and otherwise control the fire. Plaintiff and other men were hoisted onto the roof through the use of a forklift. In the course of attempting to put out the fire plaintiff fell through a covered skylight onto the floor in the interior of the warehouse, causing the injuries for which recovery is sought.

The warehouse roof was made of corrugated metal. The skylight opening was covered by a piece of corrugated plastic. The corrugated plastic was 'pushed under and laid just like the rest of the--more or less like the rest of the roof.' The entire roof was covered by a film of dust which came from the cleaning of grass seed and grain in the warehouse. Because of the dust film there was no difference in the color of the skylight and the color of the roof.

There was sufficient evidence to establish a cause in fact connection between the careless conduct of defendant's employee and plaintiff's injury. And there is ample evidence that defendant's employee failed to exercise reasonable care in carrying on the welding operation.

The only question for our consideration is whether defendant is legally responsible for plaintiff's harm the cause of which can, in part at least, be attributed to defendant's conduct.

The scope of the liability of an actor whose conduct is a substantial factor in causing an injury is frequently discussed under the rubric 'proximate cause' or 'legal cause,' and less frequently as a part of the definition of negligence. We have adopted the latter approach. ¹ Whatever language is used to categorize the problem, the inquiry is essentially the same: (1) what factors are relevant in setting the limits of liability for conduct which is a cause, in a substantial sense, of an injury, and (2) what are the respective functions of the court and jury in passing upon the question of the defendant's liability?

In attempting to answer these questions we have found little enlightenment from reading the vast amount of legal literature on the subject. Generally speaking, there is very little agreement among the scholars; each writer, in presenting his analysis of the problem, finds unsatisfactory the solution offered by others. The semantic problems created by such highly abstract concepts as 'negligence,' 'risk,' 'foreseeability,' 'fault' and the like, make communication on the subject almost impossible. ²

We are left, then, with the task of working out as best we can our own formulation for drawing the line at which the defendant's liability ends.

The temptation here is to leave the question to the jury where the problem can be solved by an intuitive process, thus relieving us from the judicial task of reaching a reasoned conclusion. Unfortunately, however, we have inherited the duty to exercise control over the jury and to keep it within the bounds set for it, vague as they may be.

The issue of the defendant's negligence or the plaintiff's contributory negligence is frequently withdrawn from the jury and is resolved by the trial court or by this court as a matter of law. The jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor's conduct clearly meets the standard or clearly falls below it.

Implicit in this process is the assumption that judges as well as juries know something about the kind of conduct that is deemed acceptable or not acceptable in the community and that, at least at the higher and lower ends of the continuum of that standard, the court can say that the conduct does or does not meet the standard.

The premise upon which this standard is based is the concept that an actor should not be liable unless he is at fault in the legal sense. Although legal fault is not the exact equivalent of moral fault, ³ the predicate is blameworthiness in some sense; the actor being regarded as blameworthy if his conduct is, according to community standards, generally considered as creating a danger to persons in the situation in which the plaintiff finds himself. ⁴ 'Thus the standard represents the general level of moral judgment of the community, what it feels ought ordinarily be done, and not necessarily what is ordinarily done, although in practice the two would very often come to the same thing.' 2 Harper & James, The Law of Torts, p. 903 (1956).

An important corollary of this principle is that 'liability is confined to harms actually resulting that are of the general kind to be anticipated from the conduct and, for the same reason, liability is confined to situations in which the person harmed is one of the general class threatened.' ⁵

This idea of limiting liability to that which can be anticipated is formulated into the foreseeability test for negligence, which states that one is negligent only if he, as an ordinary reasonable person, ought reasonably to foresee that he will expose another to an unreasonable risk of harm. 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.

Thus fault, as the term is usually understood, is not associated with conduct which causes harm through the concatenation of highly unusual circumstances. ⁶ 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.

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 law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine that the injury was reasonably foreseeable. ⁷

Whether the harm in a particular case is deemed foreseeable may depend upon the manner in which we describe 'harm.' It has been observed that 'if we use a very generalized description of the type of harm that was foreseeable and of the type of harm that occurred, an answer that the result was within the risk is inevitable.' ⁸ And on the other hand, '(i)f we use a detailed, mechanism-of-harm description of the result and the risks, the answer will be negative.' ⁹

A reasonable man could foresee that a fire started by him might spread to his neighbor's building and that in the effort to extinguish the fire his neighbor or a third person coming to his aid might be injured as a result of a variety of possible circumstances--by being burned, by falling off a ladder, by falling off a roof, by falling through a burned portion of the roof, or by other similar risks normally associated with fighting fires.

It is less likely that an injury would occur as a result of falling through a skylight and even less likely that one would fall through a skylight because it was covered in a manner that made it appear to be a solid part of the roof. But, although such conditions may not be a common cause of injury, on the other hand it cannot be said that this setting for possible injury is so uncommon that a jury could not reasonably describe as foreseeable the risk of harm which it creates.

We do not have any statistics showing the frequency with which persons are injured as a result of falling through covered skylights. We know, however, from our general knowledge of the way in which injuries occur, that a covered skylight might well expose a person on a roof to a risk of harm. Further, it is not unlikely that the injury would occur in this manner in the course of...