Stewart v. Kids Inc. of Dallas

• Citation: 245 Or.App. 267,261 P.3d 1272
• Decision Date: 31 August 2011
• Docket Number: 07P1791; A139501.
• Parties: Jack STEWART, guardian ad litem for Jane Doe, Plaintiff–Appellant,v.KIDS INCORPORATED OF DALLAS, OR, an Oregon non-profit corporation; and SLD, INC., an Oregon corporation, dba Dairy Queen of Dallas, Defendants–Respondents.
• Court: Court of Appeals of Oregon

245 Or.App. 267

261 P.3d 1272

Jack STEWART, guardian ad litem for Jane Doe, Plaintiff–Appellant,

v.KIDS INCORPORATED OF DALLAS, OR, an Oregon non-profit corporation; and SLD, INC., an Oregon corporation, dba Dairy Queen of Dallas, Defendants–Respondents.

07P1791; A139501.

Court of Appeals of Oregon.

Argued and Submitted Nov. 23, 2009.Decided Aug. 31, 2011.

William D. Brandt argued the cause and filed the briefs for appellant. With him on the briefs was William D. Brandt, P.C.David Doyle, Salem, argued the cause and filed the brief for respondent Kids Incorporated of Dallas, OR.Matthew J. Kalmanson, Portland, argued the cause for respondent SLD, Inc. With him on the brief was Hoffman Hart & Wagner LLP.Before WOLLHEIM, Presiding Judge, and SERCOMBE, Judge, and DUNCAN, Judge.^*DUNCAN, J.

Plaintiff brought this action for negligence against defendants Kids Incorporated of Dallas, Or (Kids Inc.), and SLD, Inc., dba Dairy Queen of Dallas (Dairy Queen), seeking damages for injuries sustained by plaintiff's ward, Jane Doe, when she was sexually assaulted while attending a car wash fund-raiser sponsored by Kids Inc. at Dairy Queen's restaurant. Defendants each moved to dismiss on the ground that plaintiff's complaint “fail[ed] to state ultimate facts sufficient to constitute a claim.” ORCP 21 A(8). The trial court granted defendants' motions, ruling that the harm suffered was unforeseeable as a matter of law. Plaintiff appeals from the ensuing judgments dismissing his claims against each defendant with prejudice. Because we agree with the trial court's conclusion that plaintiff's complaint failed to allege facts sufficient to establish that the harm suffered was reasonably foreseeable to either defendant, we affirm.

In determining the sufficiency of a complaint under ORCP 21 A(8), we accept as true all well-pleaded allegations in the complaint and give the plaintiff, as the nonmoving party, the benefit of all favorable inferences that may be drawn from those allegations. Bailey v. Lewis Farm, Inc., 343 Or. 276, 278, 171 P.3d 336 (2007).

Plaintiff's second amended complaint alleged the following facts: Jane Doe, who was then 13 years old, was invited to participate in a car wash fund-raiser sponsored by Kids Inc. held on the premises of Dairy Queen. While attending the car wash, Jane Doe was sexually assaulted by an adult male in the men's restroom of the restaurant. The complaint alleged, in paragraph 5, that defendants knew or should have known that their conduct caused a foreseeable risk of harm. Specifically, paragraph 5 alleged that the assault occurred

“during the time [Jane Doe] was under the care, supervision and control of defendant Kids Inc. Defendant Dairy Queen is a business establishment that holds itself out to the general public as a restaurant suitable for families and children. Both defendants knew, or should have known, that there was a reasonable probability that given the fact that there were teenage girls present at the car wash and particularly given the fact that the car wash was advertised and was soliciting strangers to come onto the defendant Dairy Queen property, that there was a reasonable probability that people harboring criminal intent to do harm or injury to children might enter onto the premises for the purpose of making contact with potential underage victims. This probability was significantly enhanced by virtue of the fact that it was reasonably foreseeable to defendants, and each of them, that sexual predators might have made contact with the underage females via the internet who were attending the car wash and frequenting the Dairy Queen.”

Thus, paragraph 5 alleged that there was a “reasonable probability” that sexual predators would come to the car wash to harm children and that defendants knew or should have known of that probability because teenage girls were participating in the car wash, the car wash was advertised, and sexual predators might have had contact with teenage girls participating in the car wash.

The complaint also detailed separate allegations of negligent conduct specific to each defendant. In particular, paragraph 6 alleged that Kids Inc. was negligent in the following particulars:

“A. In failing to have sufficient adults present to supervise Jane Doe and the other children given the number of children in its care, custody and control at the sponsored car wash. An adult might have observed the perpetrator of the sexual assault on Jane Doe and prevented said assault.

“B. In failing to adequately monitor the whereabouts of Jane Doe while she was in its care, custody and control in that had defendant Kids Inc. properly monitored the whereabouts of Jane Doe and the other children and had a system in place to do so, the sexual offender who perpetrated the sexual assault on Jane Doe would not have had the opportunity to maneuver her into a position where he could not be observed and perpetrate his sexual assault upon her.

“C. In failing to station a person by the restroom when it was in use by the minor children in its care, custody and control to insure that Jane Doe and others were not accosted by strangers in the restroom.

“D. By failing to have any system, or an adequate system, of control for the whereabouts of the children when they needed to use the restroom facilities or go into the Dairy Queen. Had defendant Kids Inc. devised such a system of control for the whereabouts of the children, including plaintiff, who needed to use the restroom facilities, the sexual assault upon Jane Doe might have been avoided.

“E. In failing to observe the adult male who pushed Jane Doe into the men's restroom. Had representatives of defendant Kids Inc. observed the adult male who pushed Jane Doe into the men's restroom, the sexual assault on Jane Doe might have been prevented.

“F. In failing to respond to noises in the restroom. Had representatives of defendant Kids Inc. observed the adult male who pushed Jane Doe into the men's restroom, the sexual assault on Jane Doe might have been prevented.”

Paragraph 12 alleged that defendant Dairy Queen “was negligent and failed to maintain a safe premises” as follows:

“A. In failing to provide devices to insure that males did not enter the restroom with female customers, such as mirrors. Had Dairy Queen provided observation devices, such as mirrors, so that employees could observe who entered the restrooms, the sexual assault on Jane Doe might have been avoided.

“B. In failing to observe the adult male who pushed Jane Doe into the men's restroom. Had defendant Dairy Queen properly monitored the whereabouts of Jane Doe and the other children and had a system in place to do so, the sexual offender who perpetrated the assault on Jane Doe would not have had the opportunity to maneuver her into a position where he could not be observed and perpetrate his sexual assault upon her.

“C. In failing to respond to noises in the restroom. Had representatives of defendant Dairy Queen observed the adult male who pushed Jane Doe into the men's restroom, the sexual assault on Jane Doe might have been prevented.

“D. In failing to observe that a male entered the men's restroom with plaintiff. Had representatives of defendant Dairy Queen observed the adult male who pushed Jane Doe into the men's restroom, the sexual assault on Jane Doe might have been prevented.

“E. In failing to have adequate personnel present to supervise the patrons of the Dairy Queen given the fact that it was reasonably foreseeable that there would be numerous people coming and going from the restaurant as a result of the car wash fund-raiser. Adequate personnel might have observed the perpetrator of the sexual assault on Jane Doe and prevented said assault.

“F. In failing to utilize security cameras to monitor the hallway leading to the restrooms. Had defendant Dairy Queen had such a security system to monitor the whereabouts of the children, including plaintiff, who needed to use the restroom facilities, the sexual assault upon Jane Doe might have been avoided[.]”

In sum, paragraphs 6 and 12 each alleged specific failures to act by Kids Inc. and Dairy Queen, respectively, and that, had defendants not failed to act, the sexual assault on plaintiff's ward could or would have been prevented. Thus, unlike in paragraph 5, paragraphs 6 and 12 do not allege any facts relating to defendants' knowledge or notice that their conduct caused a risk of foreseeable harm.

Dairy Queen moved to dismiss the complaint under ORCP 21 A(8), or, alternatively, to make paragraph 12 more definite and certain under ORCP 21 D. Kids Inc. joined in Dairy Queen's motions. Defendants argued, inter alia, that, as a matter of law, the complaint failed to allege facts sufficient to establish defendants' liability for the criminal conduct of a third party. ¹

In response, plaintiff argued that the complaint properly alleged a special relationship between Jane Doe and each defendant and, based on those relationships, defendants had a duty to “anticipate or guard against the intentional or criminal misconduct of others.” According to plaintiff, the complaint was sufficient to establish that “defendant[s] knew, or should have known, of the risk to plaintiff's ward from a sexual predator” based on the following pleaded facts: “(1) a highly publicized event; (2) featuring teenage girls; (3) a public drive-in restaurant * * *; (4) the existence of an internet with websites such as MySpace which are frequented by sexual predators that utilize that vehicle to search the internet for victims as well as opportunities.”

The court granted defendants' motions, ruling that “the harm here is going to be unforeseeable to both of the [defendants] as a matter of law,” and giving plaintiff 20 days to replead. The court subsequently, on April 30, 2008, entered an order to that effect. After plaintiff did not replead within the required time period, on June 2, the court entered an order granting defendants' ...