§8.3 Foreseeable Risk of Harm

LibraryTorts (OSBar) (2012 Ed.)
§8.3 FORESEEABLE RISK OF HARM

§8.3-1 Introduction

Actionable negligence requires a finding that the defendant's conduct "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987) (see §8.2-3).

§8.3-2 Functions of Judge and Jury

Whether the defendant's conduct created a foreseeable risk of harm is usually a question of fact for the jury. But in extreme cases the court may withdraw the issue from the jury by declaring that no reasonable juror could find the risk foreseeable. Donaca v. Curry County, 303 Or 30, 38, 734 P2d 1339 (1987) (see §8.2-3).

The issue of foreseeability may be brought to the court on a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or a motion for directed verdict at the close of plaintiff's evidence at trial. In summary judgment motions and in motions to dismiss, the evidence is to be viewed in the light most favorable to the party opposing the motion to dismiss. Schiele v. Montes, 231 Or App 43, 218 P3d 141 (2009). In motions for judgment on the pleadings, "an appellate court accepts as true all well-pleaded allegations of the complaint." Boyer v. Salomon Smith Barney, 344 Or 583, 586, 189 P3d 233 (2008). In motions for directed verdict, the court is to "consider the evidence, including inferences, in the light most favorable to plaintiffs." Olsen v. Deschutes County, 204 Or App 7, 23, 127 P3d 655 (2006).

Unforeseeability as a matter of law should be found only in extreme cases, when the harm results from a "concatenation of highly unusual circumstances." Stewart v. Jefferson Plywood Co., 255 Or 603, 609, 469 P2d 783 (1970).

The following cases were remanded for further proceedings in light of the Fazzolari trilogy (see §8.2-3) because the trial court had improperly dismissed them:

Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591 (1987) (foreseeable that brother of person for whom drug was prescribed might ingest drug and suffer injury or death).

Boden v. Ford Motor Co., 86 Or App 465, 739 P2d 1067 (1987) (foreseeable that value of plaintiff's products liability case would be diminished because of lost evidence).

Jones By and Through Jones v. City of Prairie City, 86 Or App 701, 740 P2d 236 (1987) (foreseeable that destroying dog before rabies testing would mean person bitten would have to undergo rabies treatment).

Page v. Sparling, 87 Or App 118, 741 P2d 535 (1987) (foreseeable that entrusting car to potentially intoxicated driver could result in accident).

Stribling v. Rogue Air Applicators, Inc., 100 Or App 747, 788 P2d 495 (1990) (foreseeable that crop-dusting on farm could harm neighbor's foxes).

Najjar v. Safeway, Inc., 203 Or App 486, 125 P3d 807 (2005) (foreseeable that asking off-duty employee to chase shoplifter into dark parking lot could result in injury to employee).

McPherson v. State ex rel. Dept. of Corrections, 210 Or App 602, 152 P3d 918 (2007) (foreseeable that landlord's neglect to provide security chain on door, peephole, proper lighting, safe landscaping, and adequate warnings in laundry shed would lead to tenant's rape).

Hughes v. Wilson, 345 Or 491, 199 P3d 305 (2008) (foreseeable that county's failure to cut bush on unpaved portion of county road would obscure a driver's vision and lead to accident).

In the following cases, appellate courts ruled that the harms were so extreme that no reasonable jury could find them foreseeable, and therefore the court should dismiss the claims:

Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 83 P3d 322 (2004) (not foreseeable that price of steel would decline while accounting error was corrected).

Miller ex rel. Miller v. Tabor West Investment Co., LLC, 223 Or App 700, 196 P3d 1049 (2008) (not foreseeable that one tenant in apartment complex would attack another tenant off-premises).

Wilberger v. Creative Bldg. Maintenance, Inc., No. 06-714-AA, 2009 WL 1773342 (D Or 2009), aff'd, 379 Fed Appx 630 (9th Cir 2010) (not foreseeable that terminated employee would unlawfully keep work vehicle and use it to kidnap and murder third person).

In reviewing a sampling of past cases held to be foreseeable or not foreseeable, courts have concluded that "'whether a rational juror can find that harm is foreseeable, particularly in the context of criminal activity by third parties, is an ad hoc determination depending on the particular circumstances of each case.'" Miller, 223 Or App at 713 (quoting McPherson, 210 Or App at 617).

COMMENT: Unfortunately, such ad hoc determinations mean that prior cases have limited precedential value because they do not announce a rule
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