Piazza v. Kellim

58 July 21, 2016 No. 50

IN THE SUPREME COURT OF THE

STATE OF OREGON

Patricia PIAZZA,

acting on behalf of Farley Piazza and Associates

and as Personal Representative of the

Estate of Martha Paz De Noboa Delgado, deceased,

Respondent on Review,

v.

Bryan KELLIM,

dba 99 Pawn & Guns,

Defendant,

and

FIVE STARS, INC.,

dba The Zone;

Concept Real Estate, LLC; and

Concept Entertainment Group, Ltd.,

Defendants-Respondents,

and

ROTARY INTERNATIONAL

and Rotary International District 5100,

Defendants-Respondents,

Petitioner on Review.

S063442 (Control)

Patricia PIAZZA,

acting on behalf of Farley Piazza and Associates

and as Personal Representative of the

Estate of Martha Paz De Noboa Delgado, deceased,

Respondent on Review,

v.

Bryan KELLIM,

dba 99 Pawn & Guns,

Defendant,

and

FIVE STARS, INC.,

dba The Zone;

Concept Real Estate, LLC;

Cite as 360 Or 58 (2016) 59

and Concept Entertainment Group, Ltd.,

Defendants-Respondents,

Petitioners on Review,

and

ROTARY INTERNATIONAL

and Rotary International District 5100,

Defendants-Respondents.

S063451

(CC 1201-00270; CA A153286;

SC S063442 (Control), SC S063451)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 7, 2016, at Lewis & Clark

Law School, Portland, Oregon.

Jonathan Henderson, Davis Rothwell Earle & Xóchihua,

P.C., Portland, argued the cause and filed the brief for

petitioners on review Rotary International and Rotary

International District 5100. With him on the brief were

William Davis and Christopher M. Parker.

James L. Hiller, Hitt Hiller Monfils Williams LLP,

Portland, argued the cause and filed the brief for petition-

ers on review Five Stars, Inc., dba The Zone; Concept Real

Estate, LLC, and Concept Entertainment Group, Ltd.

J. Randolph Pickett, Pickett Dummigan LLP, Portland,

argued the cause and filed the brief for respondent on review.

With him on the brief were R. Brendan Dummigan, Kristen

West McCall, Kimberly O. Weingart, Ron K. Cheng, and

Benjamin B. Grandy, Law Office of Benjamin B. Grandy,

P.C., Beaverton.

Kathryn H. Clarke, Portland, filed the brief for amicus

curiae Oregon Trial Lawyers Association.

______________

*  Appeal from Multnomah County Circuit Court, Edward J. Jones, Judge.

271 Or App 490, 354 P3d 698 (2015).

60 Piazza v. Kellim

BREWER, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Balmer, C. J., dissented and filed an opinion, in which

Landau, J., joined.

Case Summary: Personal representative of deceased foreign exchange stu-

dent’s estate brought negligence action against owners and operators of underage

nightclub and the organizations that operated the foreign exchange program.

Defendants moved to dismiss plaintiff’s complaint under ORCP 21 A(8) on the

ground that plaintiff had failed to state facts sufficient to constitute a claim for

relief with respect to the issue whether the decedent’s death was a foreseeable

result of defendants’ conduct. The trial court granted defendants’ motions. The

Court of Appeals reversed, holding that plaintiff’s complaint sufficiently alleged

facts which, if proved, would permit a trier of fact to find that it was reasonably

foreseeable to the club defendants that people standing outside the club late at

night were at risk of harm from violent assault and that decedent’s death was

within that general class of harm. Likewise, the Court of Appeals held, the com-

plaint’s allegations, if proved, would permit a reasonable juror to find that the

foreign exchange program defendants’ conduct exposed decedent to a foreseeable

risk of violent assault and that the type of harm that befell the decedent was

within that general class. Held: (1) Plaintiff’s allegations detailing a history of

violent assaults—including gun violence—at and in the neighboring vicinity of

the club, combined with allegations of a known risk of such violence in the future,

would permit a reasonable trier of fact to determine that a reasonable person in

the position of the club defendants would have foreseen a risk of violent assault

on the public sidewalk outside the club, where underage patrons were queued up

to enter, and would also permit a reasonable trier of fact to find that the harm

that befell decedent was within the class of harms at risk; and (2) plaintiff’s

allegations that the prior violent assaults in and around the club were publicized

in the media and that the foreign exchange program defendants knew or should

have known of the dangers of leaving the decedent at the club under the described

circumstances would permit a reasonable trier of fact to find that a reasonable

person in the position of the foreign exchange program defendants would have

foreseen the risk of violent assault on the public sidewalk where they left dece-

dent, and would also permit a reasonable trier of fact to find that the harm that

befell decedent fell within the class of harms of which those defendants were

alleged to have been aware.

The decision of the Court of Appeals is affirmed. The judgment of the circuit

court dismissing this action is reversed, and the case is remanded to the circuit

court for further proceedings.

Cite as 360 Or 58 (2016) 61

BREWER, J.

In this negligence action, plaintiff, the personal

representative of the estate of Martha Delgado, alleged in

her complaint1 that Delgado—a foreign exchange student

staying in this country under the supervision of defendants

Rotary International and Rotary International District

5100 (the Rotary defendants)—was shot and killed by an

assailant while standing in line on a public sidewalk outside

the Zone, a teenage nightclub in Portland owned by several

business entities (the Zone defendants).2

On defendants’ motion, the trial court dismissed

plaintiff’s complaint on the ground that plaintiff had failed

to state facts sufficient to constitute a claim for relief with

respect to the issue whether Delgado’s death was a foresee-

able result of defendants’ conduct. See ORCP 21 A(8) (pro-

viding for dismissal for “failure to state ultimate facts suf-

ficient to constitute a claim”). A divided panel of the Court

of Appeals reversed the ensuing judgment dismissing this

action. Piazza v. Kellim, 271 Or App 490, 354 P3d 698 (2015).

On review, we conclude that plaintiff alleged facts that—if

proved—were sufficient to permit a reasonable juror to find

that Delgado’s death was a reasonably foreseeable result of

defendants’ conduct. Accordingly, we affirm the decision of

the Court of Appeals, and we reverse the judgment dismiss-

ing this action and remand to the trial court.

I.  FACTS AND PROCEDURAL HISTORY

A.  The Complaint

Because this is an appeal from a trial court judg-

ment dismissing a complaint under ORCP 21 A(8), we

assume that all well-pleaded facts are true and give plaintiff

the benefit of all favorable inferences that reasonably may

be drawn from those factual allegations. See, e.g., Caba v.

Barker, 341 Or 534, 536, 145 P3d 174 (2006) (stating stan-

dard of review). Plaintiff alleged that Delgado, age 17, was

staying with a host family in White Salmon, Washington, as

1

Plaintiff’s operative pleading was a second amended complaint; for ease of

reference, we refer to that pleading as the complaint.

2

The Zone defendants are Five Stars, Inc., Concept Real Estate, LLC, and

Concept Entertainment Group, Ltd.

62 Piazza v. Kellim

part of an international exchange program sponsored and

managed by the Rotary defendants. On January 24, 2009,

a group of approximately 14 Rotary exchange students,

including Delgado, gathered at the home of the host parents

of one of the students for a birthday celebration. Later in the

evening, the host parents drove the group to the Zone. The

Zone was an underage nightclub that admitted people ages

16 to 21 and featured dancing. The Zone was located in the

“Old Town/Chinatown neighborhood” bordering downtown

Portland; it also was part of what is referred to by police

as the “downtown entertainment district,” which consists of

several streets where nightclubs and bars are located. The

Zone frequently had a “cordoned-off line of customers on the

sidewalk outside the club waiting to get in.” The host par-

ents dropped the students off near the Zone without a chap-

erone and planned to pick them up at 1:00 a.m.

Delgado and the other exchange students were

waiting on the sidewalk to get into the Zone when an assail-

ant, Ayala, shot Delgado twice. Delgado died as a result

of her injuries. Ayala, who previously had been diagnosed

with schizophrenia and had exhibited obvious signs of

mental illness and depression to coworkers, “went to the

Zone nightclub looking to shoot ‘preppies’ or ‘pop tweens,’

against who[m] he may have held a grudge.” Before shooting

Delgado, Ayala had stood in front of the Zone and loaded his

pistol.

Delgado’s shooting was not the first at that particu-

lar location. In July 2002, a shooter fired into a crowd of peo-

ple standing outside the nightclub, striking three people. At

that time, the club had a different name, but it was owned

and operated by the Zone defendants. There also had been a

“history of fights and assaults in the line outside the night-

club.” In addition, the area surrounding the Zone had expe-

rienced violent crimes before the 2009 shooting. In the years

preceding the 2009 shooting, the downtown entertainment

district was “plagued by recurrent incidents of violence,”

which were “linked by police to gang activity and to clubs

in the district exceeding capacity and serving too much

alcohol.” In 2005, a series of shootings left two people dead

and four injured. “It was known by Portland police and club

owners alike that there was a high probability that more

Cite as 360 Or 58 (2016) 63

shootings would take place in the downtown entertainment

district.” As a consequence, police “blanketed the downtown

entertainment district with police officers to ease fear.” The

effort, which was called “Operation Safe Streets,” included

at least two dozen police officers patrolling on foot and horse-

back on Friday and Saturday nights through early morn-

ing, and gang enforcement officers, traffic safety officers,

parole officers, and liquor control investigators were also on

patrol. Owners of area nightclubs were asked to close early

on weekend nights and were advised to have adequate secu-

rity, cut off all intoxicated customers, and respond swiftly to

problems or notify police.

After violence continued in the downtown entertain-

ment district, in August 2006, Portland police called a “bar

summit” with owners and managers of downtown bars and

nightclubs to help them adopt policies to reduce violence. At

the meeting, which included a representative of one of the

Zone defendants, businesses and police addressed, among

other issues, the shootings in the Old Town/Chinatown

neighborhood. At the summit, police and businesses also

addressed whether the violence on downtown sidewalks

and in parking lots was related to intoxicated club-goers (as

police believed) or drug dealers (as clubs contended).3

By January 2009, the Old Town/Chinatown neigh-

borhood “had approximately fourteen agencies serving

addicted, mentally ill, and homeless people, more than any

other neighborhood in the city, with thousands of clients

coming to the area every day. Many of those clients bought

drugs.” “Drug dealers, drug users and gang members, all

of whom frequented the area where the Zone nightclub was

located, frequently carried weapons * * *.” “[S]ome club own-

ers, realizing that their clients were in danger of violent

assault, increased security at their bars and nightclubs.” In

2006, a principal of one of the Zone defendants “acknowl-

edged downtown safety problems, but said they were created

3

The Zone was located in what used to be one of Portland’s “Drug Free

Zones,” in which anyone convicted of a drug offense could be barred from return-

ing. The drug-free-zone program expired in 2007, and “drug dealers and addicts

took over Portland’s Chinatown/Old Town neighborhood,” which police officers

came to refer to as “crack alley.” “Residents complained of being terrorized by an

increasingly aggressive and confrontational breed of drug users and sellers.”

64 Piazza v. Kellim

by ‘a few bad apples,’ and that police, liquor control, and oth-

ers should “work together for the benefit of club-goers.”

Before the shooting, the Zone had undertaken some

measures to provide security for customers inside and out-

side the club. Those measures included:

“(a)  The Zone had an employee whose primary responsi-

bility was monitoring customers as they come and go from

the club. The employee was to assist in line control; to dis-

tance ‘undesirables,’ i.e. intoxicated persons, harassers,

transients, known trouble makers, or gang affiliated per-

sons from guests; and to monitor the parking lot and deter

potential guests from loitering in or around their cars;

“(b)  The Zone nightclub had a security camera that mon-

itored the outside of their establishment;

“(c)  The Zone nightclub had a security guard or door-

person at the door outside of the premises who frisked

everyone before entry, checking for drugs, alcohol, fire-

arms, or other weapons;

“(d)  In the past, the Zone had hired off-duty police officers

to provide security for their customers; [and]

“(e)  On or about 2006, [t]he Zone nightclub remodeled its

facilities in the hopes of attracting a better clientele and

reducing problems at the club including violence.”

Thus, plaintiff alleged, the Zone defendants “knew about

the risk of violence that its customers faced.”

Plaintiff further alleged that underage nightclubs

generally are understood to pose “inherent” risks of violence

because of the high proportion of young male patrons, high

noise levels, crowding, competitive environment, and under-

age drinking. “A metropolitan nightclub may see as many as

three or four assaults on staff each night and are often con-

fronted with armed patrons. Shootings, stabbings, felonious

assaults, drug violations, and/or murders are commonplace

in metropolitan nightclubs across the country.” In fact,

several cities around the country “have banned or heavily

regulated teen dance clubs.” According to plaintiff’s alle-

gations, the instances of violence that “occurred nationally

at underage nightclubs and locally in the area around the

Zone nightclub were all publicized in local and/or national

Cite as 360 Or 58 (2016) 65

media, and [the Rotary defendants] knew, or in the exercise

of reasonable care, should have known, about the dangers of

leaving [Delgado] at the Zone nightclub on the date and at

the time in question.”

Plaintiff alleged that the Zone defendants owed a

duty to Delgado, who was their business invitee, to exercise

reasonable care to make the premises safe for her, including

protection from criminal acts by third parties. Plaintiff fur-

ther alleged that the Zone defendants breached that duty:

“(a)  In failing to take reasonable measures to protect

their customers from the criminal acts of third parties;

“(b)  In making their customers stand in line in front of

the club;

“(c)  In failing to have sufficient security personnel to pro-

tect their customers;

“(d)  In failing to properly train their staff to identify

threats to their customers;

“(e)  In failing to identify * * * Ayala as a threat while he

was in front of [t]he Zone;

“(f)  In failing to have adequate emergency response pro-

cedures in place to protect customers once a threat was

identified; [and]

“(g)  In failing to warn their customers or the parents of

their customers about the risk of being assaulted while

patronizing [t]he Zone nightclub.”

With regard to the Rotary defendants, plaintiff

alleged that Delgado lived with a host family under the

“auspices, sponsorship, and control” of the Rotary defen-

dants and that the host parents were the Rotary defen-

dants’ agents. Plaintiff alleged that the Rotary defendants

were authorized to exercise “independent supervisory and

parental responsibility to safeguard [Delgado’s] physical

and mental well-being,” and, thus, that a special relation-

ship between Delgado and the Rotary defendants “gave

rise to a heightened duty of care beyond the general duty to

avoid foreseeable risk of harm.” According to plaintiff, the

Rotary defendants, directly or acting through their agents,

breached that duty:

66 Piazza v. Kellim

“(a)  In failing to provide host parents with sufficient

training so as to reasonably ensure the safety of the

students;

“(b)  In leaving the students unsupervised, late at night in

a high crime area;

“(c)  In failing to adopt and enforce reasonable rules and

regulations to ensure the safety of the students;

“(d)  In failing to adopt reasonable rules and regulations

regarding travel to prevent the students from being left

alone in dangerous areas; [and]

“(e)  In failing to properly and adequately warn all the stu-

dents and their parents of the dangers of being left unsu-

pervised in a high crime area.”4

B.  The Motions to Dismiss

The Zone defendants and Rotary defendants each

moved under ORCP 21 A(8) to dismiss plaintiff’s claims

against them on the ground that plaintiff had failed to allege

a foreseeable risk of harm to Delgado. Defendants argued

that plaintiff’s negligence claims reduced to the following

theory: (1) criminals were more likely to commit crimes

in the area in which the Zone was located; (2) defendants

knew or should have known of that fact; and (3) Delgado

was killed in that “high crime area.” Those allegations,

defendants argued, failed to establish a foreseeable risk of

the particular crime that killed Delgado, which defendants

characterized as a “random spree shooting” against a par-

ticular class of person (“preppies”). According to defendants,

such a shooting was just as likely to occur at a mall, a movie

theater, or an ice cream parlor; thus, “the occurrence of a

random spree shooting in a high crime area does not make it

any more foreseeable than if it occurred in a place one would

normally deem safe, such as a movie theater or a school.”

Indeed, the “randomness” of shootings like the one that

killed Delgado, defendants argued, “means that when and

4

The Rotary defendants ask this court to take judicial notice, pursuant

to OEC 201, of certain facts relating to the shooting incident in this case that

are not alleged in plaintiff’s complaint. In light of the procedural posture of our

review of the judgment dismissing this action based on a motion to dismiss under

ORCP 21 A(8), we decline that request, which was made for the first time before

this court.

Cite as 360 Or 58 (2016) 67

where they occur are not foreseeable, as that term is used in

Oregon tort law.”

Plaintiff, meanwhile, argued that defendants’ argu-

ments misapprehended what it means for a risk of harm to

be reasonably foreseeable under Oregon case law. In plain-

tiff’s view, “[f]oreseeability in this case does not turn on

being able to foresee ‘random spree shootings,’ but rather on

foreseeing the risk of a violent criminal assault” to Delgado.

“[T]he dangerous character of the nightclub, its location and

its violent history,” plaintiff asserted, “would allow a jury to

conclude that the harm in this case was foreseeable.” She

explained that “[t]here are many foreseeable ways in which

the assault might have taken place[.] * * * Even if an assault

by a mentally ill person is somehow unusual or unexpected,

the resulting harm was legally foreseeable because it was

within the class of reasonably foreseeable hazards” at the

Zone.

The trial court ultimately agreed with defendants,

ruling that the shooting that killed Delgado was unfore-

seeable as a matter of law. The court subsequently entered

limited judgments that dismissed all claims against both

the Zone defendants and the Rotary defendants. Plaintiff

appealed those limited judgments and argued before the

Court of Appeals, as she did before the trial court, that her

complaint alleged facts that, if proved, were sufficient to

establish a reasonably foreseeable risk of the type of harm

that befell Delgado.

C.  The Court of Appeals Decision

As noted, the Court of Appeals reversed. As to the

Zone defendants, relying on several of this court’s previous

decisions, the Court of Appeals concluded that plaintiff had

alleged sufficient facts that, if proved, would permit a trier

of fact to find that (1) it was reasonably foreseeable to the

Zone defendants that people standing in line outside the Zone

late at night were at risk of harm from violent assault; and

(2) Delgado’s death was within that general class of harm.

Piazza, 271 Or App at 509, 510-11. The court further concluded

that the circumstances alleged in the complaint were not “so

highly unusual, or the sequence of events so attenuated, that

68 Piazza v. Kellim

no reasonable person in the Zone defendants’ position could

have anticipated the harm to Delgado.” Id. at 512. Indeed, the

court opined, “[a] jury could find, based on the facts alleged

in the complaint, that the link between Ayala’s crime, the

Zone defendants’ conduct, and Delgado’s death was relatively

straightforward”; defendants exposed Delgado to a risk of

harm from violent assault when they left her to line up and

wait on the street in a high-crime area, where a criminal

could approach the line and shoot at the Zone’s business invi-

tees. Id. Therefore, the Court of Appeals reasoned, plaintiff

had satisfied her pleading burden with respect to the issue of

foreseeability as to the Zone defendants.

For similar reasons, as to the Rotary defendants,

the Court of Appeals concluded that the complaint suffi-

ciently alleged foreseeability of the risk of harm in at least

one of plaintiff’s specifications of negligence—leaving the

students in a high-crime area—to withstand a motion to

dismiss plaintiff’s claim under ORCP 21 A(8).5 Piazza, 271

Or App at 513-14. Plaintiff alleged that prior crimes in and

around the Zone were “publicized in local and/or national

media, and [the Rotary defendants] knew, or in the exercise

of reasonable care, should have known, about the dangers of

leaving [plaintiff] at [the Zone] on the date and at the time

in question.” Id. The court concluded, from those facts, that

a reasonable juror could find that the host parents’ conduct

had exposed Delgado to a reasonably foreseeable risk of vio-

lent assault and that the type of harm that actually befell

her was within that general class. Id. at 514.

Judge Edmonds dissented. As he saw the case,

“the very tragic specific harm that befell plaintiff’s dece-

dent was the result of a random shooter who was mentally

ill and who undertook to shoot ‘preppies.’ The randomness

of his criminal target demonstrates that it could have just

as well have been committed at a soccer or football game,

an outside youth church or synagogue gathering, a mall,

a public or private school event, or any place where young

people typically gather. Giving plaintiff the benefit of all

reasonable inferences, it was a mere happenstance that

5

The parties do not discuss plaintiff’s remaining specifications of negligence

as to the Rotary defendants. Accordingly, we do not consider them further.

Cite as 360 Or 58 (2016) 69

the shooter chose the line of young people outside the Zone

defendant’s club as his target. For purposes of reasonable

foreseeability, a specific risk of harm is only within the

scope of a general risk of harm if the specific risk of harm

resulting in the injury is qualitatively similar to other fore-

seeable specific risks of harm that fall within a general

risk of harm. That test is not satisfied by plaintiff’s allega-

tions. The circumstances of the random shooting spree in

this case are unrelated to plaintiff’s ‘high crime area’ alle-

gations. For these reasons, the specific risk of harm from

a random shooting spree like the one in this case is not

within the general risk of harm alleged by plaintiff.”

Piazza, 271 Or App at 522-23 (Edmonds, S. J., dissenting).

Echoing Judge Edmonds’ dissent, all defendants

assert on review that the type of crime that occurred—

which they describe as a “random spree shooting”—was

unforeseeable as a matter of law. They argue that the Court

of Appeals majority erred by describing the scope of the

risk of harm too generally and by relying on the occurrence

of prior crimes that were dissimilar to the circumstances

of the crime at issue. In short, they assert that the Court

of Appeals expanded the concept of general risk of harm

beyond the practical realities of what business operators,

parents, and adult supervisors should reasonably anticipate

as risks of harm. Defendants also assert that courts in other

jurisdictions have limited liability in circumstances such as

those present here.

Plaintiff responds that this court’s prior decisions

have held that a plaintiff need not allege and prove the pre-

dictability of the actual sequence of events that caused the

harm in question, but rather, must plead and prove facts

showing a generalized risk of the types of incidents and inju-

ries that occurred. Plaintiff urges that, under that frame-

work—where all reasonably foreseeable risks of harm are

relevant, not merely the particular harm that actually befell

Delgado—plaintiff’s factual allegations were sufficient to

state a claim with respect to foreseeability.

II. ANALYSIS

The concept of foreseeability embodies a prospective

judgment about a course of events; it “therefore ordinarily

70 Piazza v. Kellim

depends on the facts of a concrete situation” and, if dis-

puted, is a jury question. Fazzolari v. Portland School Dist.

No. 1J, 303 Or 1, 4, 734 P2d 1326 (1987).6 Foreseeability

plays a role in at least two overlapping common-law negli-

gence determinations: (1) whether the defendant’s conduct

unreasonably created a foreseeable risk of harm to a pro-

tected interest of the plaintiff such that the defendant may

be held liable for that conduct—formerly described in terms

of “duty” and “breach” as measures of negligent conduct;

and (2) whether, because the risk of harm was reasonably

foreseeable, the defendant may be held liable to the plaintiff

for the particular harm that befell the plaintiff—a concept

that traditionally was referred to as “proximate” cause and

which, in our current analytical framework, operates as a

legal limit on the scope of a defendant’s liability for negligent

conduct. See generally Fazzolari, 303 Or at 11-18 (describing

role of foreseeability in negligence determinations formerly

described in terms of duty-breach and proximate cause); see

also Deckard v. Bunch, 358 Or 754, 761, 370 P3d 478 (2016).

In synthesis,

6

Although often described as an “issue of fact,” id., it is more precise to

describe the foreseeability determination as a blended factual and normative—

that is, value-laden—inquiry that ordinarily is committed to juries. As one com-

mentator has explained,

“[W]hen ‘foreseeable’ is used in what seems to be a kind of factual sense, as a

prediction or anticipation, there is no implicit degree of likelihood in the ref-

erence. It may run from possible through likely and probable and even on up

to certainty. * * * When ‘foreseeable’ is used in the context of determining if

a defendant acted unreasonably, not in the fashion of the reasonable person,

then the degree of likelihood can be factored in among all the variables enter-

ing into the calculus of harm, thus giving it a pragmatic use. In this context

‘foreseeable’ is modified explicitly or implicitly by ‘reasonably.’

“* * * * *

“More subtle is the use of ‘foreseeable’ in a mode that is not purely fac-

tual or predictive. To say that something is or was foreseeable can trigger an

interpretation that it is being used in the purely predictive mode because the

verb ‘to be’ is so often used as if information is being provided, although often

opinion or value judgments are involved. Comparison with a lay use of ‘fore-

seeable’ may be instructive. If a passenger in an automobile were to say to

the driver, ‘If you keep driving like this, it’s foreseeable we’ll have a wreck,’ or

just, ‘You’re risking our lives,’ it is not likely he is only conveying information.

It is a warning and a call for different behavior. Likewise, after the wreck, for

someone to say, ‘Well, it sure was foreseeable,’ is to imply that it could have

been prevented and likely that it should have been.”

Walter Probert, Torts and Language, 48 Fla L Rev 841, 854-55 (1996) (footnotes

omitted).

Cite as 360 Or 58 (2016) 71

“unless the parties invoke a status, a relationship, or a par-

ticular standard of conduct that creates, defines, or limits

the defendant’s duty, the issue of liability for harm actually

resulting from defendant’s conduct properly depends on

whether that conduct unreasonably created a foreseeable

risk to a protected interest of the kind of harm that befell

the plaintiff. The role of the court is what it ordinarily

is in cases involving the evaluation of particular situa-

tions under broad and imprecise standards: to determine

whether upon the facts alleged or the evidence presented

no reasonable factfinder could decide one or more elements

of liability for one or the other party.”

Fazzolari, 303 Or at 17.

Under that framework, in effect, the more traditional

duty-breach and proximate cause analyses in a common-law

negligence claim are subsumed in the question whether the

defendant’s conduct resulted in a reasonably foreseeable and

unreasonable risk of harm to a protected interest of the kind

that the plaintiff suffered. Towe v. Sacagawea, Inc., 357 Or

74, 86, 346 P3d 1207 (2015).7 But, as the passage quoted

above from Fazzolari observes, the duty-breach analysis is

not always subsumed in a foreseeability analysis. Rather,

the nature and scope of the duty owed by the defendant to

the plaintiff can be created, defined, or limited based on,

among other things, the relationship between or status of

7

Although uniform jury instructions are not sources of law, it often is useful

to consider how sometimes elusive legal principles are understood and applied in

practice by the trial judges and lawyers who are charged with following them. To

that end, Oregon’s Uniform Civil Jury Instructions describe the overlapping roles

of foreseeability in the following way. Under UCJI 20.01, the jury is instructed

to determine whether (1) “[t]he defendant’s conduct was negligent”; (2) the defen-

dant’s negligence “was a cause of harm to the plaintiff”; and (3) “[t]he harm was

reasonably foreseeable.” UCJI 20.02 provides that a “person’s conduct is negligent

if that person fails to use reasonable care.” That instruction further provides:

“In deciding whether a person used reasonable care, consider the dangers

apparent or reasonably foreseeable when the events occurred.”

A separate uniform jury instruction based on Fazzolari, UCJI 20.03, addresses

the issue of foreseeability as a limit on liability:

“A person is liable only for the reasonably foreseeable consequences of his or

her actions. There are two things that must be foreseeable. First, the plain-

tiff must be within the general class of persons that one reasonably would

anticipate might be threatened by the defendant’s conduct. Second, the harm

suffered must be within the general class of harms that one reasonably would

anticipate might result from the defendant’s conduct.”

72 Piazza v. Kellim

the parties. Towe, 357 Or at 86. So understood, our thresh-

old inquiry is whether plaintiff has invoked a particular sta-

tus or relationship that affects our analysis.

In her complaint, plaintiff invoked two special

relationships that informed defendants’ obligations toward

Delgado, which defendants have not challenged at this point

in the litigation. The first, which plaintiff invoked as to the

Zone defendants, is the relationship between possessors of

land and persons whom they invite onto their premises. As

possessors of premises, the Zone defendants had an obliga-

tion to take reasonable steps to protect the nightclub’s visi-

tors from reasonably foreseeable criminal acts by third per-

sons. See, e.g., Uihlein v. Albertson’s, Inc., 282 Or 631, 639,

580 P2d 1014 (1978) (noting that this court previously had

adopted standard set out in Restatement (Second) of Torts

section 344 comment f (1965) “as being a part of the law of

this state”).8 The second special relationship, which plain-

tiff invoked with respect to the Rotary defendants, is the

relationship between a child and a person entrusted with

that child’s care. For example, schools have a special duty to

students “apart from any general responsibility not unrea-

sonably to expose people to a foreseeable risk of harm,” and

the “scope of th[at] obligation does not exclude precautions

against risks of crime or torts merely because a third person

inflicts the injury.” Fazzolari, 303 Or at 19, 20.

In both special relationships asserted by plaintiff,

the obligation to protect against risks of harm—includ-

ing the risk of harm from third-party criminal acts—is

broader than that which might apply in the absence of such

8

Restatement section 344, comment f states:

“Since the possessor is not an insurer of the visitor’s safety, he is ordi-

narily under no duty to exercise any care until he knows or has reason to

know that the acts of the third person are occurring, or are about to occur.

He may, however, know or have reason to know, from past experience, that

there is a likelihood of conduct on the part of third persons in general which

is likely to endanger the safety of the visitor, even though he has no reason to

expect it on the part of any particular individual. If the place or character of

his business, or his past experience, is such that he should reasonably antic-

ipate careless or criminal conduct on the part of third persons, either gener-

ally or at some particular time, he may be under a duty to take precautions

against it, and to provide a reasonably sufficient number of servants to afford

a reasonable protection.”

Cite as 360 Or 58 (2016) 73

a relationship, but, because those relationships do not pre-

scribe a particular scope of duty, that obligation does not

extend to risks that are not reasonably foreseeable. Id. at

16-17, 20.9 Thus, although each defendant is alleged to have

had a special relationship with Delgado and a corresponding

duty to take reasonable precautions to protect her against

criminal conduct by third parties, those duties extended to

only reasonably foreseeable criminal conduct. See id.

In this case, defendants do not dispute, based on

the facts alleged in plaintiff’s complaint, that they held the

asserted special relationships toward Delgado, under which

they had obligations to take reasonable precautions to pro-

tect Delgado against foreseeable risks of harm. Nor have

defendants asserted that plaintiffs’ allegations are insuffi-

cient, if proved, and if the risk of harm to Delgado otherwise

was foreseeable, to establish that defendants failed to use

reasonable care to protect Delgado from harm. Stated dif-

ferently, apart from their general foreseeability challenge,

defendants do not separately assert that plaintiffs’ alle-

gations were insufficient to establish, if proved, that their

conduct was negligent.10 Instead, as framed by defendants’

motions, the only question before us is whether plaintiff’s

complaint alleged sufficient facts to withstand an ORCP 21

A(8) motion with respect to the issue of foreseeability as a

legal limit on the scope of defendants’ liability.

The question is whether plaintiff has alleged facts

sufficient, if proved, to permit a jury determination that

reasonable persons in defendants’ positions would have

9

Even when a special relationship is the basis for the duty of care owed by

one person to another, this court has held that, if the special relationship (or

status or standard of conduct) does not prescribe a particular scope of duty, then

“[c]ommon law principles of reasonable care and foreseeability of harm are rele-

vant.” Cain v. Rijken, 300 Or 706, 717, 717 P2d 140 (1986) (quoted with approval in

Fazzolari, 303 Or at 16-17); see also Oregon Steel Mills, Inc. v. Coopers & Lybrand,

LLP, 336 Or 329, 342, 83 P3d 322 (2004).

10

It follows that issues pertaining to whether defendants were negligent,

such as “the feasibility and cost of avoiding the risk,” which “bear on the rea-

sonableness of defendant’s conduct,” are not before us. See Donaca v. Curry Co.,

303 Or 30, 38-39, 734 P2d 1339 (1987) (explaining difference between general

foreseeability and duty/breach issues; whether county was negligent for failing

to maintain right-of-way depended on whether county’s action was reasonable

in light of risk, including feasibility and cost of avoiding risk); see also Hughes v.

Wilson, 345 Or 491, 502, 199 P3d 305 (2008) (applying principle).

74 Piazza v. Kellim

foreseen a risk to Delgado’s safety “of the kind of harm that

befell” her. See Fazzolari, 303 Or at 17. “The community’s

judgment, usually given voice by a jury, determines whether

the defendant’s conduct met that threshold in the factual

circumstances of any particular case.” Chapman v. Mayfield,

358 Or 196, 206, 361 P3d 566 (2015). “The court intervenes

only when it can say that the actor’s conduct clearly meets

the standard or clearly falls below it.” Fazzolari, 303 Or at

18 (quoting Stewart v. Jefferson Plywood Co., 255 Or 603,

607, 469 P2d 783 (1970)).

In Stewart, this court elaborated on the nature of a

court’s role in the foreseeability determination. In that case,

the plaintiff volunteered to assist in putting out a fire that

the defendant had started at one plant and that then had

spread to an adjacent warehouse. The plaintiff and others

were hoisted to the roof of the warehouse by a forklift. In

attempting to put out the fire, plaintiff fell through a cov-

ered skylight—covered by corrugated plastic and a film of

dust so that it was indistinguishable from the rest of the

roof—to the warehouse floor, suffering injuries. The ques-

tion, the court said, was “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 * * * would not

have reasonably expected the injury to occur.” Stewart, 255

Or at 609.

The answer required identification of a court’s

proper gate-keeping role:

“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 rea-

soned conclusion. Unfortunately, however, we have inher-

ited the duty to exercise control over the jury and to keep it

within the bounds set for it, vague as they may be.”

Id. at 607. On the facts presented, the court held:

“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

Cite as 360 Or 58 (2016) 75

portion of the roof, or by other similar risks normally asso-

ciated 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 set-

ting for possible injury is so uncommon that a jury could

not reasonably describe as foreseeable the risk of harm

which it creates.”

Id. at 610. In short, the circumstances, although unusual,

were not “out of the range within which a jury could deter-

mine that the injury was reasonably foreseeable.” Id. at

609-10.

In a later case involving third-party criminal con-

duct, this court recognized a limit on how generally the

type of harm at risk can be described. In Buchler v. Oregon

Corrections Div., 316 Or 499, 853 P2d 798 (1993)—a case on

which defendants here heavily rely—this court considered

whether the state could be held liable in negligence for the

death and serious injury of victims of violence inflicted by an

escaped prisoner. The prisoner was a member of a work crew

in a remote location. The crew supervisor had left a state

van’s keys in the ignition. The prisoner escaped in the van,

drove 50 miles to his mother’s house, stole a gun, and, two

days after the escape, shot two people, killing one of them.

The trial court granted the state’s summary judgment

motion, and, on review, the plaintiffs’ claims raised several

issues concerning foreseeability relating to the plaintiffs’

various theories of negligence.

One foreseeability issue in Buchler concerned the

plaintiffs’ claim that the state had facilitated the harm to

the victims by leaving the van’s keys in the ignition. Id. at

507. The court explained that describing the type of harm

at risk too generally—such as stating that criminals com-

mit crimes or that escaped prisoners may commit crimes

while at large—makes criminal acts the legal responsibility

of everyone who may have contributed in some way to the

criminal opportunity. Id. at 511. Such a conception would

76 Piazza v. Kellim

sweep too broadly because “mere ‘facilitation’ of an unin-

tended adverse result, where intervening intentional crim-

inality of another person is the harm-producing force, does

not cause the harm so as to support liability for it.” Id. at

511-12. The court in Buchler ultimately concluded as a mat-

ter of law that the harm that the plaintiffs suffered was not

a reasonably foreseeable consequence of the risk created by

leaving the keys in the van. Id. at 514. In doing so, the court

clarified that, for a jury question to arise with respect to

foreseeability, the relevant risk of harm must be reasonably

foreseeable. Id.

In keeping with its focus in Stewart, Fazzolari, and

Buchler, this court recently has emphasized the centrality—

in determining whether a triable issue has been established

with respect to foreseeability—of the plaintiff’s description

of the injury-producing factual circumstances in the context

of her theory of liability:

“[A]s part of determining whether the defendant’s conduct

was unreasonable, there is nothing surprising about a con-

ception of foreseeability that assesses the overall ‘setting

for possible injury’ under the plaintiff’s theory of liability.

Drawing on the plaintiff’s theory of liability, the court in

Stewart determined that it was not unlikely that an ‘injury

would occur in this manner in the course of fighting a fire.’ ”

Chapman, 358 Or at 208 (citations omitted); see also

Fazzolari, 303 Or at 22 (stating that, where school knew of

assaults at specific locations on school property, trier of fact

could find that school should have warned students of that

general risk, which included risk of rape).

In Chapman, this court held, in reviewing a grant

of summary judgment, that the trial court had properly dis-

missed the plaintiff’s action against a tavern that allegedly

had over-served a visibly intoxicated patron who, in turn, left

the tavern on foot, walked down the street to another busi-

ness establishment, and unintentionally fired a concealed

handgun through the door, injuring two people inside. 358

Or at 198. To establish foreseeability, the plaintiff primarily

relied on (1) expert opinion evidence that intoxicated persons

frequently become violent and that medical, scientific, and

lay journals have documented a connection between violence

Cite as 360 Or 58 (2016) 77

and alcohol for decades; and (2) experiential observations by

a bartender at another tavern in the vicinity about the link

between alcohol and violence. Id. at 220. We concluded that

the plaintiff’s pleading and evidence did not create a triable

issue of fact with respect to foreseeability. We explained:

“[E]ven though the precise mechanism of harm need not

be foreseeable, it is necessary to describe the type of harm

at risk and the class of plaintiffs at risk with reference to

the particular factual circumstances of the case, as gleaned

from the pleadings and evidence in the record. Based on

the circumstances of this case, we conclude that the appro-

priate characterization of the type of harm at issue is an

unintentional attack by a visibly intoxicated patron after

he had left defendant’s premises. Cf. Fazzolari, 303 Or at

21-22 (characterizing type of harm from failing to pro-

vide adequate warning or security as an assault on stu-

dents at school); Stewart, 255 Or at 610 (describing type

of harm from negligently setting fire as injuries that may

occur while attempting to extinguish fire). We further con-

clude that plaintiffs’ evidence was insufficient because it

described the risk of harm too generally.

“As explained, evidence that it is common knowledge

that intoxicated people have impaired judgment and may,

therefore, behave improperly is too general to establish

that a person who serves a visibly intoxicated person rea-

sonably should expect that that person will commit an

assault. Evidence making the bare assertion that it is com-

mon knowledge that visibly intoxicated persons frequently

become violent is no more sufficient. Such evidence does not

create a permissible inference that a particular defendant

should have been aware of an unreasonable risk of violent

harm or that a particular plaintiff was within the class of

persons at risk of such harm.”

Chapman, 358 Or at 220-21.

Other, more specific evidence—such as evidence

showing the rate of incidence of violence among intoxicated

drinkers, the types of intoxicated drinkers who become vio-

lent, or the class of persons at risk of violent harm from a

visibly intoxicated person—could have been adduced in

Chapman that may have permitted different inferences so

as to preclude summary judgment. The omission of such evi-

dence, we held, distinguished the circumstances in Chapman

78 Piazza v. Kellim

from those in Stewart, where this court was willing, in the

absence of more direct evidence, to use general knowledge

to supply an inference that the risk of harm was reasonably

foreseeable. Id. at 221; see Stewart, 255 Or at 611 (although

record did not contain statistics on frequency of injuries

resulting from falling through concealed skylights, “general

knowledge” of manner in which injuries occur supported

foreseeability of how injury could occur in such manner). The

plaintiff’s evidentiary proffer in Chapman did not include

facts that would support an inference—based on general

knowledge—that it was reasonably foreseeable to the defen-

dant that the visibly intoxicated patron would unintention-

ally attack the plaintiffs at a different location. Chapman,

358 Or at 222; see Buchler, 316 Or at 511 (disavowing broad

conception of foreseeability based on purported “common

knowledge” connecting thieves, guns, and crimes).11

Before summing up the principles that govern our

analysis, we briefly turn to one of defendants’ primary points

of emphasis. There is an understandable thirst in this area

of the law for bright-line rules that—at least in theory—can

produce predictable results from case to case in negligence

claims. In urging this court to require a high degree of sim-

ilarity between the nature and circumstances of prior crim-

inal acts and the criminal act at issue here, defendants note

that some courts have analyzed whether a particular crim-

inal act was reasonably foreseeable based on prior similar

acts, and others have looked to the place and character of

the location of the act. See, e.g., McKown v. Simon Property

Group, Inc., 182 Wash 2d 752, 768-74, 344 P3d 661, 667-70

(2015) (discussing the two approaches). Courts following the

“prior similar acts” approach have held that prior acts must

be sufficiently similar in character to the act at issue before

the latter can be deemed to have been foreseeable.12

11

This court has “cautioned against turning fact-specific decisions on fore-

seeability into rules of law.” Chapman, 358 Or at 222 (quoting Bailey v. Lewis

Farm, Inc., 343 Or 276, 289, 171 P3d 336 (2007) (citing Fazzolari, 303 Or at 16)).

In Chapman, we concluded:

“We do not depart from that precept here; rather, our decision turns on the

specific facts in the record before us.”

Id.

12

See, e.g., Romero v. Giant Stop-N-Go of New Mexico, Inc., 146 NM 520,

212 P3d 408 (2009) (holding that evidence of prior robberies, theft, physical

Cite as 360 Or 58 (2016) 79

Under the “place and character” test, courts have

tended to focus on whether the place and character of a loca-

tion or business “invited” the criminal behavior. See, e.g.,

Early v. N.L.V. Casino Corp., 100 Nev 200, 204, 678 P2d 683,

685 (1984), partially overruled on other grounds by Moody

v. Manny’s Auto Repair, 110 Nev 320, 871 P2d 935 (1994).

In response to a claim that an unprovoked attack at a large

music festival was foreseeable based on incidents at previ-

ous festivals, and because crime is foreseeable when large

groups of people gather, the New York Court of Appeals

held that “[a] random criminal attack of this nature is not

a predictable result of the gathering of a large group of peo-

ple.” Maheshwari v. City of New York, 2 NY3d 288, 294, 810

NE2d 894 (2004). In the same vein, the California courts

have emphasized that “it is difficult if not impossible in

today’s society to predict when a criminal might strike,” and

“if a criminal decides on a particular goal or victim, it is

extremely difficult to remove his every means for achieving

that goal.” Wiener v. Southcoast Childcare Centers, 32 Cal

4th 1138, 1147, 1150, 88 P3d 517, 524 (2004).

The concerns expressed in the cited cases are rea-

sonable; in fact, they animated in part this court’s rejection

of the facilitation rationale that the plaintiff in Buchler pre-

sented. We also recognize the relevance of the factors that

other courts have identified in the foreseeability analysis.

In many sets of factual circumstances, multiple consider-

ations—including the place and character of the location of

a criminal act, and the occurrence of prior similar acts—

are relevant. However, as we repeatedly have stated, our

altercations, domestic violence, harassment, narcotics and suspicious persons at

same location did not make targeted and deliberate shooting of plaintiff’s dece-

dents foreseeable). Under that approach, courts also have held that the prior acts

must have happened in the vicinity of the location where the act at issue occurred

before that act can be deemed foreseeable. See Sigmund v. Starwood Urban Inv.,

475 F Supp 2d 36, 46 (D DC 2007), aff’d, 617 F3d 512 (DC Cir 2010) (looking at

a five-block radius around area of the attack and concluding that sudden and

unexpected attack was not foreseeable). In addition, courts using that formula

have held that the prior acts must have happened relatively recently, Dwiggins

v. Morgan Jewelers, 811 P2d 182, 183 (Utah 1991) (one robbery five years earlier

insufficient to make subsequent robbery foreseeable), and with some degree of

frequency. See Dudas v. Glenwood Golf Club, Inc., 261 Va 133, 140, 540 SE2d 129

(2001) (two robberies within the month preceding the attack on plaintiff was not

enough for foreseeability because there was no imminent danger).

80 Piazza v. Kellim

preference for giving voice to the community’s judgment

through a jury determination prevails, except in extreme

cases, where no reasonable person could find that the

harm that befell the plaintiff was reasonably foreseeable.

Fazzolari, 303 Or at 17-18; Stewart, 255 Or at 607. Under

that framework, a narrow focus on the actual sequence of

events that led to a particular injury to a particular person

“misunderstands foreseeable risk.” Towe, 357 Or at 106 n 17.

A defendant need not have been able to precisely forecast a

specific harm to a particular person to be held liable. See id.

This court punctuated that point in Fazzolari when it made

the following observations about Stewart:

“[T]he Stewart opinion acknowledged that ‘[w]hether

the harm in a particular case is deemed foreseeable may

depend upon the manner in which we describe ‘harm.’ This

is even more true of ‘risk.’ Stewart itself made clear that the

court meant generalized risk of the types of incidents and

injuries that occurred rather than the predictability of the

actual sequence of events. One reasonably might foresee

that a fire might place others seeking to protect a neigh-

boring building in danger of injury by falling as well as

by being burned, even though one might not foresee that

the fall would be through an insecurely covered and hidden

skylight. So, at least, a jury might find.”

Fazzolari, 303 Or at 13 (citations omitted).

Nor is it necessary that a particular quantifiable

mass of similar types of incidents involving a narrow class of

victims have occurred at a precise location for a triable issue

of fact with respect to foreseeability to arise. In Fazzolari,

for example, a jury question was created by generalized

and somewhat limited evidence concerning the defendant

school’s prior experience with criminal activity:

“Here there was evidence that a woman reportedly had

been sexually assaulted on the school grounds 15 days

before the attack on plaintiff, and plaintiff attempted

to introduce evidence of various other kinds of attacks.

Obviously a school’s responsibility for students’ safety

against assault is not limited to the risk of rape, and evi-

dence of foreseeability will differ depending on whether the

risk of injury is claimed to be specific to a school, or schools

Cite as 360 Or 58 (2016) 81

generally, or a neighborhood, or a class of potential victims

such as women or particular ethnic groups.”

Id. at 21 (citation omitted).

But that does not mean that the foreseeability

determination is untethered to principle. As our previous

decisions show, negligence claims arising from third-party

criminal acts often involve the defendant’s failure to moni-

tor or screen a dangerous third person or the placement of

another person at unreasonable risk of criminal harm at a

location and in circumstances that are unsafe. In either sit-

uation, there is a common requirement: a trier of fact must

be able to find from concrete facts that a reasonable person

in the position of the defendant reasonably would have fore-

seen that the person or location and circumstances posed a

risk of criminal harm to persons such as the plaintiff. See

generally Towe, 357 Or at 86; Oregon Steel Mills, 336 Or at

340; Fazzolari, 303 Or at 17. Facts pertaining to the similar-

ity, frequency, and recency of prior criminal acts, committed

under the same or similar circumstances, or at or near the

same location, and involving the same or similar types of

victims, as well as the place and character of the location

of the current criminal act, are all relevant to the determi-

nation. See Chapman 358 Or at 220-22; see also Buchler,

316 Or at 511-12; compare Uihlein, 282 Or at 640-41 (store

not liable for shopper assaulted in supermarket when little

evidence of unsafe location), with Brown v. J.C. Penney Co.,

297 Or 695, 710, 688 P2d 811 (1984) (store liable for shopper

attacked in parking lot where there was ample evidence of

criminal activity in area). Defendants have not persuaded

us that those principles require further refinement or that

the circumstances of this case present a compelling reason

to do so.

III. APPLICATION

As discussed, defendants repeatedly recount the

details of this particular shooting, emphasizing the mental

illness of the shooter, his grudge against teens, and char-

acterizing the attack as a “random spree,” and the shooting

as “indiscriminate.” Defendants then fault plaintiff’s allega-

tions of foreseeability because they involve different facts.

To the extent that their challenge focuses on the precise

82 Piazza v. Kellim

sequence of events that occurred in this case, defendants

invite a taxing level of comparison that this court consis-

tently has rejected. As noted, contrary to defendant’s focus,

foreseeability has reference to the “generalized risk of the

types of incidents and injuries that occurred[,] rather than

the predictability of the actual sequence of events.” Fazzolari,

303 Or at 13 (discussing Stewart). Moreover, plaintiff’s alle-

gations support an inference that the attack in this case was

not random in the sense of being indiscriminate or lacking a

plan or purpose. The complaint alleged that the shooter spe-

cifically targeted the Zone because it was a teenage night-

club that attracted young people like Delgado. Although the

shooter could have chosen other locations to carry out his

plan, that fact does not make the shooting any less foresee-

able to defendants.

We agree with defendants that, among the numer-

ous facts alleged in plaintiff’s complaint, some, viewed in

isolation, would be too general to sustain her threshold

pleading burden with respect to foreseeability. For example,

the allegations that violent crimes have occurred in down-

town Portland over a period of several decades, and in some

instances, many blocks away from the Zone, and a recita-

tion of general crime statistics for “these neighborhoods,”

alone add little to the analysis.13 Defendants are right to

observe that such generalized allegations—substantially

separated in time and distance from the pertinent events

13

For example, plaintiff listed the crime statistics of “these neighborhoods”

in her opening brief before the Court of Appeals:

“From September 2006 through December 2006—1 homicide, 282 assaults, 3

rapes, 67 robberies, 15 sex crimes and 2 kidnappings;

“From January 2007 through December 2007—3 homicides, 16 rapes, 716

assaults, 187 robberies, 34 sex crimes and 7 kidnappings;

“From January 2008 through December 2008—13 rapes, 709 assaults, 145

robberies, 45 sex crimes, and 5 kidnappings;

“From January 4, 2009 through January 18, 2009 (the two weeks preceding

the incident at issue here)—31 assaults, 7 robberies and 2 sex crimes.”

Plaintiff does not, however, specify exactly what she means by “these neigh-

borhoods,” beyond the fact that she is referring to the Chinatown/Old Town and

downtown neighborhoods. Plaintiff also fails to provide information regarding

the proximity of those crimes to the Zone. The “neighborhood” in question spans

52 square blocks, and the “downtown entertainment district” comprises nine

blocks.

Cite as 360 Or 58 (2016) 83

here—closely resemble the sort of attenuated circumstances

that this court eschewed in Buchler.

However, at the pleading stage of this case, the dis-

positive issue is whether the allegations of foreseeability in

plaintiff’s complaint can withstand a motion to dismiss. In

making that determination, we conclude that the proper

level of generality at which to compare the criminal history

on which plaintiff relies and the shooting in this case is to

treat both as falling within the category of violent assaults.

This court’s previous decisions generally prescribe a rela-

tively broad level of generality in assessing the reasonable

foreseeability of criminal conduct as a limit on liability. See,

e.g., Fazzolari, 303 Or at 21 (treating sexual assault and

other types of assaults at a school as falling in same cate-

gory for purposes of foreseeability). That is especially true

where, as here, the risk of harm at a particular location is

at issue. See, e.g., Uihlein, 282 Or at 641 (“[T]here must be

something to alert the storekeeper to the likelihood of harm

of some kind from a criminal agency.”). That only makes

sense. When a business owner is on notice that—in the

absence of reasonable precautions—assaultive conduct can

be anticipated where people are waiting in line to enter its

premises, it rings hollow to suggest that a specific crime pat-

tern triggers the owner’s duty to protect patrons only with

regard to those specific crimes (such as gang-related homi-

cide) that have occurred. Only if we can say that the types of

historical crimes are so dissimilar, or so remote in time and

location from the current crime that no reasonable person

could determine that the current crime was foreseeable, will

a court intervene to remove the matter from the jury as a

matter of law. Fazzolari, 303 Or at 13, 17-18, 21.

Here, plaintiff alleged a repeated—if somewhat

unevenly spaced—history of violent assaults, including gun

violence, at and in the neighboring vicinity of the Zone, and

a known risk of such violence in the future. In the years

preceding the 2009 shooting, the downtown entertainment

district—a nine block area that included the Zone—had

been “plagued by recurrent incidents of violence,” which

were “linked by police to gang activity and to clubs in the

district exceeding capacity and serving too much alcohol.”

84 Piazza v. Kellim

In 2005, a series of shootings in that district left two peo-

ple dead and four injured. “It was known by Portland police

and club owners alike that there was a high probability that

more shootings would take place in the downtown entertain-

ment district.” Pertinent to the foreseeability of that risk

are plaintiff’s allegations asserting, in effect, that the Zone

defendants knew that teenage nightclubs such as the Zone

are especially susceptible to incidents of violent assault.

Plaintiff alleged that the Zone defendants had in the past

acknowledged the risks of harm posed by that history at the

Zone and in the downtown entertainment district. Plaintiff

also alleged that a gunman stood and loaded his gun on

that sidewalk, a gunman who was attracted to that location

because he could find young people standing where he found

and shot Delgado.

Those allegations would permit a reasonable trier of

fact to determine that a reasonable person in the position of

the Zone defendants reasonably would have foreseen a risk

of violent assault on the public sidewalk outside the night-

club, where underage patrons were queued up to enter. They

also are sufficient to permit a reasonable trier of fact to find

that the harm that befell Delgado was within the class of

harms at risk.14

The foregoing allegations would not, by themselves,

permit a finding that the risk of harm to Delgado was rea-

sonably foreseeable to the Rotary defendants. However,

plaintiff further alleged, with respect to those defendants,

that the prior violent assaults in and around the Zone were

“publicized in local and/or national media, and [the Rotary

defendants] knew, or in the exercise of reasonable care,

should have known, about the dangers of leaving [Delgado]

at the Zone nightclub on the date and at the time in ques-

tion.” Assuming, as we must at this stage of the proceedings,

the truth of those allegations, we cannot say that no trier of

fact reasonably could determine that a reasonable person

14

We deliberately do not assign a particular degree of significance or lack of

significance in the foreseeability determination to many of the facts alleged in

plaintiff’s complaint, in terms of tipping the scales in favor of the overall suffi-

ciency of plaintiff’s pleading. By emphasizing the core facts summarized above,

we simply note what, in our view, fundamentally surmounts the sufficiency

hurdle.

Cite as 360 Or 58 (2016) 85

in the position of the host parents would have foreseen a

risk of violent assault on the public sidewalk where they

left Delgado. The question whether plaintiff can adduce evi-

dence sufficient to create a triable issue of fact with respect

to those allegations, of course, is not presently before us.15

Moreover, on the facts alleged, we are unable to say

that a reasonable trier of fact would have to find that the

criminal harm that befell Delgado was categorically differ-

ent from the criminal harms of which the Rotary defendants

had notice, and that no reasonable factfinder could find that

the harm to Delgado fell within the class of harms of which

the Rotary defendants are alleged to have been aware. The

link between defendants’ allegedly negligent conduct and

the actual harm that befell Delgado was direct: Plaintiff

alleged that the Rotary defendants knew that there had

been a significant history of violent assault late at night at

or near the Zone, they took Delgado to the Zone and left her

there, and she was the victim of a violent assault. That chain

of events is not the sort of “concatenation of highly unusual

circumstances” that compels the conclusion that Delgado’s

death was not reasonably foreseeable as a matter of law. See

Stewart, 255 Or at 609.

IV. CONCLUSION

It bears repeating that, as framed by defendants’

motions, the issue before us is not whether plaintiffs’ alle-

gations were sufficient, if proved, to show that defendants’

conduct was unreasonable in light of a reasonably foresee-

able risk of harm to Delgado. Thus, we are not concerned—

for example—with whether any precautions that defen-

dants took or failed to take were reasonable in relation to

15

The Court of Appeals correctly understood that:

“Plaintiff’s complaint does not rest on allegations that crime is generally

foreseeable, or on a conclusory allegation that [t]he Zone is located in a high-

crime area. Rather, plaintiff alleged specific facts that, if proved at trial,

would establish that [t]he Zone nightclub had experienced violent crime,

including homicidal violence. Assuming, as we must at this stage of the pro-

ceedings, the truth of those allegations, and that the host parents were aware

of those facts and nevertheless left Delgado there, a reasonable juror could

conclude that the host parents’ conduct exposed her to a foreseeable risk of

violent assault.”

Piazza, 271 Or App at 514.

86 Piazza v. Kellim

the nature or degree of foreseeable risk of harm to persons

in Delgado’s circumstances. Instead, our exclusive focus is

on reasonable foreseeability as a legal limit on the scope of

defendants’ liability.

In Fazzolari, this court said:

“Another person’s crime was once thought to lie beyond a

defendant’s responsibility on grounds of ‘proximate cause,’

Aune v. Oregon Trunk Railway, 151 Or 622, 630-31, 51 P2d

663 (1935), but more recent decisions have dealt with the

behavior of others, lawful or otherwise, as part of the gen-

eral analysis of foreseeable risks.”

303 Or at 20. The court’s separation of foreseeability from

causation arose from a concern that proximate cause not be

invoked to improperly cut off claims by substituting a judi-

cial veto for what ordinarily is a jury determination. As this

court previously had stated:

“[W]e cannot lose sight of the fact that we are simply mak-

ing an allocation of the appropriate functions of the court

and jury. The sole function of a rule of limitation in these

cases is to tell the court that it must not let the case go to

the jury. The jury should be given wide latitude in setting

these limits of liability, whether it be done under a formula

of negligence or causation.”

Dewey v. A.F. Klaveness & Co., 233 Or 515, 535, 379 P2d 560

(1963) (internal quotation marks and citation omitted).

In this case, plaintiff’s allegations accomplished—at

the pleading stage—what the evidentiary proffers in cases

such as Buchler and Chapman did not. Plaintiff alleged

concrete facts showing a history of violent assault at and

in the vicinity of the Zone nightclub and related facts that,

if proved, would support a determination that reasonable

persons in defendants’ positions would have foreseen a risk

of violent assault against patrons lined up on the sidewalk

outside the nightclub. Cf. Buchler, 316 Or at 511 (evidence

of generic fact that criminals commit crimes insufficient to

establish foreseeability).

Moreover, the type of harm that befell Delgado gen-

erally corresponded to the risk of violent assault to patrons

of the Zone in Delgado’s position that was reasonably

Cite as 360 Or 58 (2016) 87

foreseeable to defendants. Cf. Chapman, 358 Or at 219-22

(evidence involving violence by or among visibly intoxicated

patrons on premises at other bars did not support inference

that it was reasonably foreseeable that defendant tavern’s

well-behaved but visibly intoxicated patron would leave tav-

ern premises and unintentionally shoot victims at differ-

ent location). As our prior decisions teach, it is the general

nature of the harm at risk, not the precise nature of the

harm suffered by a particular victim, that controls the anal-

ysis.16 Plaintiff’s allegations were sufficient to withstand

defendants’ motion to dismiss.

The dissent’s disagreement with our conclusion

requires some discussion but, in the end, it presents similar

arguments to those of the dissent in the Court of Appeals.

The dissent’s most insistent disagreement with our

ultimate conclusion is grounded in our characterization of

the risk of harm in this case as violent assault. The dissent

would describe the relevant risk more narrowly as “gang-,

drug-, and alcohol-related violence.” 360 Or at __ (Balmer,

C. J., dissenting). According to the dissent, the relevant risk

in this case is defined in plaintiff’s complaint “by the type of

criminal,” not “the type of crime.” Id. at __. But, such nar-

row conceptions of the relevant risk are not supported by

our previous decisions, including those on which the dissent

relies.

It is true that, in determining the appropriate level

of generality with which to characterize the risk of harm,

we “[d]raw[ ] on the plaintiff’s theory of liability” and “view[ ]

the defendant’s conduct through the lens of the particular

factual circumstances of the case.” Chapman, 358 Or at 208.

However, as we also reiterated in Chapman, in the context

of the pertinent factual setting, we “describe[e] the type

of harm at risk more generally, rather than predicting an

actual sequence of events.” Id. at 208-09. The problem with

the plaintiff’s evidentiary proffer on summary judgment in

16

Again, that is not to say that differences between past criminal acts com-

mitted at or near the Zone and the shooting in this case would not be relevant

to the issue of foreseeability as it relates to whether defendants’ conduct was

unreasonable in light of the risk of harm to patrons such as Delgado. That, as

previously noted, is a different matter.

88 Piazza v. Kellim

Chapman was that it relied on “common knowledge” that

intoxicated tavern patrons engage in violence, an assertion

for which there was no factual support in the record and

which did not square up with the plaintiff’s pleaded theory

that the patron in that case unintentionally shot the plain-

tiffs. Id. at 220-21. In short, there was a failure of proof that

might have been remedied by the presentation of concrete

evidence that applied to the circumstances of the case. Id.

at 221. Although the dissent acknowledges, as it must, that

in assessing foreseeability, “we focus on generalized risks of

harm,” 360 Or at __ (Balmer, C. J., dissenting), it never fully

comes to grips with that standard in appraising the alle-

gations of plaintiff’s pleading: A “generalized” risk of harm

inherently connotes an assessment at a relatively broad

level of generality.

The dissent also disagrees with our characteriza-

tion of the relevant risk of harm at issue in Fazzolari. As the

dissent sees it, Fazzolari’s discussion of the foreseeability of

different kinds of assaults, in particular, its statement that

“a school’s responsibility for students’ safety against assault

is not limited to the risk of rape,” 303 Or at 21, must be

understood as focused on “the reasonableness of the school’s

precautions,” 360 Or at __ (Balmer, C. J., dissenting), rather

than on foreseeabilty as a limit on a defendant’s liability.

We do not share the dissent’s reading of Fazzolari. When

the quoted statement from Fazzolari is read in context, it

is apparent that the court was discussing foreseeability as

it relates to the risk of harm. Before making that state-

ment, the court discussed the “issue of foreseeability * * *

[and whether] no reasonable factfinder could find the attack

on [the] plaintiff to have been a foreseeable risk.” 303 Or

at 21. The court then referred to the “generalized risks of

the types of incidents and injuries” discussed in Stewart.

Fazzolari, 303 Or at 21. Applying that concept to the facts of

the case, the court noted the evidence of the sexual assault

on school grounds 15 days before the attack on plaintiff and

that the plaintiff had attempted to introduce evidence of

various other kinds of attacks. Id. The court then stated:

“Obviously a school’s responsibility for students’ safety

against assault is not limited to the risk of rape, and evi-

dence of foreseeability will differ depending on whether the

Cite as 360 Or 58 (2016) 89

risk of injury is claimed to be specific to a school, or schools

generally, or a neighborhood, or a class of potential victims

such as women or particular ethnic groups.”

Id. Only after discussing the foreseeability of the risk of harm

did the court refer, as an additional point, to foreseeability

as a measure of the defendant’s unreasonable conduct:

“Also, the character and probability of the risk that is

claimed to be foreseeable bears on the steps administrators

reasonably should take to avert it.”

Id. at 21-22. In any event, that reference does nothing to dimin-

ish the fact that, as the court held, the proper level of gen-

erality with which to view the risk of harm under the plain-

tiff’s theory of liability in Fazzolari was the risk of assault in

general, not a particular type of assault. Id.

And, that was no aberration. As early as Danner v.

Arnsberg et al, 227 Or 420, 362 P2d 758 (1961), this court

held that, if a plaintiff’s injury was “of the same general

character” as an injury that could be anticipated, the injury

was not necessarily unforeseeable. Id. at 427-28. In Stewart,

we noted that “liability is confined to harms * * * that are of

the general kind to be anticipated from the [allegedly tor-

tious] conduct.” 255 Or at 608-09 (quoting Harper & James,

The Law of Torts Introduction xl (1956) (emphasis and

brackets added)). Fazzolari adopted the same standard. 303

Or at 21. In short, the question is whether, in the factual set-

ting of the case, the harm suffered by the plaintiff is of the

same general kind to be anticipated from the defendants’

allegedly negligent conduct. Nothing that we have said since

Fazzolari has altered that fundamental construct.

As that principle applies here, the fact that the his-

tory of violent assaults at and in the neighborhood surround-

ing the Zone included gang, alcohol, and drug-related conduct,

and shootings, as well as other forms of physical violence, is

not dispositive of the foreseeability inquiry.17 The facts that

17

We note that, rather than give plaintiff’s pleading the benefit of all reason-

able inferences in its foreseeability analysis, the dissent has failed to give appro-

priate weight to several relevant historical facts alleged in plaintiff’s pleading,

including the 2005 series of shootings in the Downtown Entertainment District,

the “history of fights and assaults in the line outside” the Zone, and the more

general allegation that “shooting, stabbings, felonious assaults, drug violations,

90 Piazza v. Kellim

plaintiff alleged, if proved, would permit a determination

that the location at which Delgado was attacked—because

it attracted party-going young people at night—attracted

violent assault in various forms. As plaintiff alleged, the

shooter was drawn to that location precisely because he

expected to find partying teens at that location and time. To

call the attack random, senseless, or mass does not advance

the analysis very far. The shooting in this case was random

in the sense that the shooter could have picked other loca-

tions to find teen victims, but it was no more random than

attacks in the area that were the product of gang-related

violence, to the extent that gang violence involves members

of one gang targeting another gang at a location where that

gang might be found.18 Reasonable minds can and do differ

as to whether, in light of the history of violent assaults at

the Zone and in the surrounding neighborhood, the attack

on Delgado was reasonably foreseeable.19

In a different argument, the dissent asserts that,

in concluding that plaintiff has sufficiently stated a claim

with respect to foreseeability, we have mistakenly failed

and/or murders are commonplace” in underage nightclubs. See 360 Or at __

(Balmer, C. J., dissenting). Moreover, contrary to the dissent’s apparent assump-

tion, Id. at __, and, giving, as we must, plaintiff’s pleading the requisite benefit of

all reasonable inferences, there is no indication that all those incidents involved

drug, alcohol, and/or gang-related violence, nor is there an indication that the

2002 shooting at the crowd outside the predecessor of the Zone was related to

gangs, drugs, or alcohol.

18

Here, the shooting was intentional—just like a gang- or drug-related

shooting would be—and it occurred in a high crime area with a history and rep-

utation for violence. The risk of violent assault that those circumstances created

included an intentional shooting that may leave incidental, unintended victims.

Gang members and drug dealers do not always aim with precision. In that sense,

the type of shooting in this case is not too different from the “mass murder” sce-

nario that the dissent implies.

19

The Court of Appeals put the matter well when it said:

“Whether the circumstances of a particular assault—such as the shoot-

er’s motive or mental state, the intended victim, or the weapon used—are

‘details,’ or instead serve to make the crime qualitatively different from other

foreseeable harms, will vary from case to case. Based on the facts alleged

in plaintiff’s complaint, a reasonable juror could conclude that this type of

assault—a gunman firing at patrons waiting in line to enter [t]he Zone—fell

within the category of risks that the Zone defendants should have antici-

pated, regardless of the shooter’s particular motive, mental state, intended

targets, or weapon used.”

Piazza, 271 Or App at 511-12.

Cite as 360 Or 58 (2016) 91

to distinguish between “the manner of harm” and the “end

result.” 360 Or at __ (Balmer, C. J., dissenting). According

to the dissent, our characterization of the harm risked as

“violent assault,” is an “end result,” upon which we focus

to a fault, while “ignoring the manner in which the harm

occurred.” Id. at __. In making that argument, the dissent

relies on several decisions of this court, but that reliance is

misplaced.20

Hefty v. Comprehensive Care Corporation, 307 Or

247, 766 P2d 1026 (1988), illustrates the type of “extreme

case” that is beyond the general rule of foreseeable harm.

In that case, K, a teenager, was voluntary admitted to the

defendant’s Adolescent Care Unit for the treatment of alco-

holism. Id. at 250. Six days after she was admitted, she

20

The dissent also relies on cases from other jurisdictions. As the dissent

notes, 360 Or at __ (Balmer, C. J., dissenting), the Seventh Circuit in Shadday

v. Omni Hotels Management Corp., 477 F3d 511, 517 (7th Cir 2007), limited the

defendant’s liability for criminal conduct in that case under District of Columbia

law to circumstances “when it has some reason to think such crime likely.”

Similarly, in Commonwealth v. Peterson, 286 Va 349, 749 SE2d 307 (2013), relied

on by the dissent, 360 Or at __ n 2 (Balmer, C. J., dissenting), the court followed

the Virginia rule providing, unlike Oregon law, that

“where the special relationship was that of business owner/invitee or landlord/

tenant, we have imposed a duty to warn of third party criminal acts only

where there was an imminent probability of injury from a third party crim-

inal act.”

Peterson, 286 Va at 357, 749 SE2d at 312 (internal quotation marks and citation

omitted; emphasis added). Because this court has never required that an injury

be probable, let alone imminently probable, in order to satisfy the foreseeability

requirement, those authorities are simply inapplicable here. Moreover, although

it is unnecessary to pursue the matter in detail, as two commentators have noted,

there is much room to question the reasoning of Shadday, in particular:

“The idea that a hotel owes no duty to its guests to take steps to protect them

from other guests is quite untenable. Imagine that a hotel installed low-

grade electronic locks that enabled guests easily to use their own room keys

to open other guest’s rooms. If a guest were to take advantage of this inad-

equate security system to break into the room of another guest and attack

the other, the victim’s claim that the hotel failed in a basic responsibility to

provide security would be quite compelling. This would be a failure to provide

the security that a guest reasonably expects from a hotel and that a hotel

implicitly promises to its guests. The duty Shadday was owed was a duty

to take ordinary care against her being attacked on the premises. Parsing

that risk into the risk of attack by intruders versus guests is arbitrary and

unmotivated.”

John C. P. Goldberg & Benjamin C. Zipursky, Civil Recourse Defended: A Reply

to Posner Calabresi, Rustad, Chamallas, and Robinette, 88 Ind LJ 569, 588-89

(2013).

92 Piazza v. Kellim

left the facility against the medical advice of the unit. Id.

Neither K nor the hospital notified her parents that she had

left. Id. While riding as a passenger on a friend’s motorcy-

cle, she sustained severe head injuries in an accident with

an automobile. Id. at 251. Neither drugs nor alcohol was a

factor in the collision. Id.

Importantly, the court said:

“The risk to be foreseen was not that [K] would ride on the

back of a motorcycle and be injured in a collision with an

automobile. * * * The risk to be foreseen was more general—

it encompassed those generalized incidents and injuries

created by discharging [K], an impaired minor addicted to

alcohol, without notice to parents or police, without the per-

mission of her doctor, without providing alternative care,

and with the knowledge that [K] could not care for herself.”

Id. at 252 (citation omitted).

As pertinent here, Hefty stands for the proposi-

tion that the risk of harm to be foreseen must be described

more generally than the dissent would describe it. Instead

of describing the risk of harm to be foreseen narrowly as

the risk that the daughter “would ride on of a motorcycle

and be injured in a collision with an automobile,” the court

carefully tied the risk to be foreseen to the more general

risk encompassed by the “generalized incidents and inju-

ries created by” the defendant’s unreasonable conduct. Id.

Ultimately, the court held that, because neither alcohol nor

drugs had been involved in the accident—that is, because

the connection between the defendant’s negligent conduct

and the harm that the plaintiff suffered was too attenu-

ated—no reasonable trier of fact could find that K’s injuries

fell within the scope of the foreseeable risk posed by the dis-

charge. Id. at 252-53.

The dissent also relies on Oregon Steel Mills. In

that case, there was no causal relationship between the

defendant’s conduct (negligently preparing an accounting

report) and the “force” that inflicted harm on the plaintiffs

(a declining stock market); the stock market did not take

notice of the defendant’s negligence and use the opportunity

to decline. Oregon Steel Mills, 336 Or at 345. The two events

Cite as 360 Or 58 (2016) 93

occurred in a temporal relationship to each other that were

completely coincidental.

This court in Oregon Steel Mills took pains to

describe the problem for the plaintiff as lack of foreseeabil-

ity, not causation in fact. See id. at 344. However, the court

focused on the lack of a causal nexus between the defen-

dants’ conduct and the market forces that led to the price

decline that harmed the plaintiff, when it ultimately con-

cluded that “the intervening action of market forces on the

price of plaintiff’s stock was the ‘harm-producing force,’ and

defendant’s actions did not ‘cause’ the decline in the stock

price so as to support liability for that decline.” Id. at 345

(emphasis added). That is another way of saying, as in

Buchler, that the defendant’s conduct merely facilitated the

harm ultimately suffered by the plaintiff. See Buchler, 316

Or at 511-12 (“[M]ere ‘facilitation’ of an unintended adverse

result, where intervening intentional criminality of another

person is the harm-producing force, does not cause the harm

so as to support liability for it.”).

But, here, the relationship between defendants’

conduct and the harm inflicted on Delgado is qualitatively

different from the relationships in Hefty and Oregon Steel

Mills that this court deemed to be too attenuated.21 Here, in

contrast to the circumstances in those cases, as alleged in

plaintiff’s complaint, the assailant’s access to Delgado and

the other teens outside the Zone was directly connected to

the Zone defendants’ asserted negligence in failing to provide

adequate security against violent assault for patrons lined

up on the sidewalk. To the extent that the dissent’s “manner

of harm/end result” argument more narrowly describes the

pertinent risks of harm as “gang-, drug-, and alcohol-related

violence,” 360 Or at __ (Balmer, C. J., dissenting), it is bound

up in the dissent’s conception of the appropriate level of gen-

erality with which to describe the presenting risk of harm, a

conception that we do not share.

Finally, the dissent argues that we have not ade-

quately explained our conclusion that plaintiff’s complaint

21

As we later explained, Oregon Steel Mills “turned on the specific facts

before the court.” Bailey, 343 Or at 289-90.

94 Piazza v. Kellim

sufficiently alleged foreseeability. Although the dissent may

not be satisfied, the analysis cannot be reduced to the appli-

cation of Euclidean-like postulates. That is because, as pre-

viously explained, foreseeability in the pertinent sense ulti-

mately is a blended factual and normative inquiry. Because

reasonable foreseeability invokes a community’s application

of its own values, whether a particular outcome of conduct

is foreseeable is most appropriately decided by the commu-

nity’s closest proxy in our civil justice system, that is, by a

jury. Exceptions exist only for harm resulting from “the con-

catenation of highly unusual circumstances.” Stewart, 255

Or at 609. Fazzolari reiterated that standard: “[T]he issue

ordinarily can be left to the jury,” except for conduct “at the

outer margins.” 303 Or at 12.22 In an earlier case, Justice

O’Connell put it this way:

“In any case where there might be reasonable difference of

opinion as to the foreseeability of a particular risk, the rea-

sonableness of the defendant’s conduct with respect to it,

or the normal character of an intervening cause, the ques-

tion is for the jury, subject of course to suitable instructions

from the court as to the legal conclusion to be drawn as the

issue is determined either way.”

Dewey, 233 Or at 536 (O’Connell, J., concurring) (quoting

William L. Prosser, Handbook of the Law of Torts 282 (2d

ed 1955)).

Precisely because it is driven by community values,

judges have no upper hand over juries in the inquiry, except

to act as gatekeepers at the outer margins.23 With that

22

The dissent misunderstands our reasoning in asserting that, “[i]n effect,

the majority concludes that an assailant’s methods and motivations are irrel-

evant to the foreseeability analysis.” 360 Or at __ (Balmer, C. J., dissenting).

To the contrary, those factors are relevant to the analysis, but we do not share

the dissent’s view that they are so conclusive in this case as to preclude a jury

determination that the harm that befell Delgado was reasonably foreseeable to

defendants.

23

In a thoughtful discussion of the underpinnings of the allocation of respon-

sibility between judge and jury in foreseeability determinations, one commenta-

tor has said:

“The genius of the jury is that it brings to each case multiple perspectives,

both shared and diverse experiences, and (with the exception of the occa-

sional attorney-juror) a legal tabula rasa. To put it simply—especially

when considering a question like foreseeability that is part-analysis,

Cite as 360 Or 58 (2016) 95

limited role in view, what we have here is not a suburban

mall in daylight hours or some other workaday public place

where people ordinarily go about their routines with only a

remote consciousness of the risk of a violent attack. Instead,

as alleged in plaintiff’s complaint, the scene of this shooting

was an inadequately secured sidewalk queue where teen-

agers were waiting to enter a nightclub, late in the evening,

in a high-crime urban neighborhood that, based on publi-

cized past experience, posed a risk of violent harm to persons

present. The harm that befell Delgado, although thankfully

uncommon, was within the range of risks of harms that a

reasonable factfinder could find was reasonably foreseeable

in the circumstances alleged in plaintiff’s complaint.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.

BALMER, C. J.

A reader of the majority opinion would be forgiven

for thinking that the death of plaintiff’s decedent was the

tragic result of the kind of gang-, drug-, or alcohol-related

violence that plaintiff alleges to be common in the neighbor-

hood around the Zone nightclub. But that is not what hap-

pened here, and plaintiff does not allege otherwise. Instead,

decedent was shot during an attempted mass murder by a

violent schizophrenic assailant, Ayala, who opened fire sim-

ply because he was intent on killing teenagers. Plaintiff does

not allege that Ayala was a gang member, a drug dealer, or

a club-goer or had any other foreseeable connection to the

Zone or the Zone’s neighborhood.

The majority opinion, nevertheless, concludes that

plaintiff’s allegations of gang-, drug-, or alcohol-related vio-

lence could establish that the shooting incident in this case

was foreseeable because both the alleged neighborhood vio-

lence and the shooting at issue here are types of “violent

part-community experience, and part-gestalt—perhaps twelve heads are

better than one.”

W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial

Power in the Proposed Restatement (Third) of Torts, 58 Vand L Rev 739, 800

(2005) (footnote omitted).

96 Piazza v. Kellim

assaults.” 360 Or at ___. But the majority fails to explain

why that similarity matters. Contrary to the majority’s

analysis, it does not follow as a matter of law or as a matter

of logic that, simply because some types of violent assault

are foreseeable, therefore all types of violent assault are

foreseeable. I would limit the types of foreseeable risks in

this case to those that plaintiff has alleged to be present at

the time and place of the shooting—namely, gang-, drug-,

and alcohol-related violence, which might include some

shooting incidents but would exclude the shooting incident

in this case. Defining the foreseeable risks any more broadly

than that, as the majority does, goes beyond the risks that

the complaint alleges. For those reasons, I dissent.

The principal issue on review is whether plaintiff

has alleged facts that would allow a reasonable jury to con-

clude that the shooting incident underlying this negligence

case was a type of foreseeable risk created by defendants’

conduct. According to plaintiff, the Zone nightclub had a

history of violence, because a shooting happened there in

2002—seven years before the shooting incident here—and

because underage nightclubs are inherently dangerous, due

to the high proportion of young male patrons, high noise lev-

els, crowding, and “competitive situations.” Further, plaintiff

alleges that “assaults” occur regularly in the area around

the Zone because of gangs, drug dealing, and over-consump-

tion of alcohol. Those facts, plaintiff alleges, were known, or

should have been known, to defendants. As a result, plain-

tiff contends that a risk of violent assault was foreseeable.

Plaintiff concludes, therefore, that the Rotary defendants

were negligent for leaving the group of teenagers, including

decedent, at the Zone, and that the Zone defendants were

negligent for asking patrons to form a line outside the club

and failing to provide more and better security.

Plaintiff’s allegations are unquestionably thin and

bear little relationship to the unprovoked shooting in this

case. That is particularly true with regard to the Rotary

defendants. Plaintiff alleges only that the Rotary defen-

dants “knew, or in the exercise of reasonable care, should

have known, about the dangers of leaving plaintiff’s dece-

dent in the Zone nightclub on the date and time in ques-

tion.” Although “the fact that the defendant was aware of a

Cite as 360 Or 58 (2016) 97

particular risk” is usually a factual allegation rather than

a legal conclusion, Moore v. Willis, 307 Or 254, 259, 767 P2d

62 (1988), it is not clear to me that plaintiff’s allegation of

“danger” is an allegation of a particular risk. And although

plaintiff alleges that “instances of violence that occurred

nationally at underage nightclubs and locally in the area

around the Zone nightclub were all publicized in local and/

or national media,” plaintiff does not allege that the Rotary

defendants were aware of those “local and/or national” news

reports, nor any reason why the Rotary defendants—or their

alleged agents, decedent’s host family in White Salmon,

Washington—should have been aware of those reports.

Reports of violence are commonplace. Local and national

media are so saturated with crime stories that an ordinary

person cannot be expected to take note of all violent acts

wherever they might travel and account for them in assess-

ing the risks of engaging in daily life. Foresight of that kind

would demand “a paranoid view of the universe,” and that

is not what the legal standard of foreseeability requires.

Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 21, 734

P2d 1326 (1987).

Nevertheless, I do not believe that that issue needs

to be resolved because, even assuming that the Rotary

defendants had the same knowledge as the Zone defendants,

those allegations are insufficient to establish that the shoot-

ing incident underlying this case was foreseeable. We gener-

ally make that determination by comparing the harm that

a plaintiff suffered to the general types of risks foreseeably

created by a defendant’s conduct. Id. at 17 (describing the

standards of foreseeability). The trial court ruled that plain-

tiff’s allegations, even if true, could not establish that the

shooting incident was foreseeable and therefore dismissed

plaintiff’s second amended complaint under ORCP 21 A(8)

for failing to state ultimate facts supporting her negligence

claim against both the Zone defendants and the Rotary

defendants.

When reviewing a trial court’s ruling dismissing a

plaintiff’s complaint under ORCP 21 A(8), we assume, like

the trial court, that the facts alleged in the complaint are

true, and we draw all reasonable inferences in the plaintiff’s

favor. Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171 P3d

98 Piazza v. Kellim

336 (2007). The majority agrees that, when assessing the

sufficiency of a plaintiff’s allegations to state a claim, it is

the court’s role to “ ‘determine whether upon the facts alleged

* * * no reasonable factfinder could decide one or more ele-

ments of liability.’ ” Chapman v. Mayfield, 358 Or 196, 205,

361 P3d 566 (2015) (quoting Fazzolari, 303 Or at 17).

Foreseeability is central to establishing the elements

of a negligence claim. A defendant may be subject to liability

for negligence only if the defendant’s conduct “unreasonably

created a foreseeable risk * * * of the kind of harm that befell

the plaintiff.” Fazzolari, 303 Or at 17. Therefore, a plain-

tiff fails to state a negligence claim if the plaintiff fails to

allege facts that would allow a reasonable jury to find that

the plaintiff was harmed by a foreseeable risk created by

the defendant’s unreasonable conduct. Solberg v. Johnson,

306 Or 484, 490-91, 760 P2d 867 (1988) (stating that the

elements of a negligence claim include “that defendant’s con-

duct caused a foreseeable risk of harm, * * * that defendant’s

conduct was unreasonable in light of the risk, [and] * * * that

plaintiff was within the class of persons and plaintiff’s injury

was within the general type of potential incidents and inju-

ries that made defendant’s conduct negligent”).

As a result, defining the scope of foreseeable risks

has important implications for tort law generally and par-

ticularly when liability will be imposed for negligent con-

duct. A risk is foreseeable if a reasonable person would

have “reasonably expected the injury to occur.” Stewart v.

Jefferson Plywood Co., 255 Or 603, 609, 469 P2d 783 (1970).

If the scope of foreseeable risks is described more broadly,

then that necessarily means that an actor should expect his

or her conduct to lead to more or greater harms. A more

broadly defined risk makes it easier to establish both that a

defendant’s conduct is unreasonable (because the probability

and severity of foreseeable harms are factors in determin-

ing reasonableness) and that a plaintiff’s harm falls within

the risks created by the defendant’s unreasonable conduct

(because the risk encompasses more harms). The opposite is

true when the foreseeable risks are defined narrowly.

Although foreseeability is a component of both the

reasonableness determination and the harm-within-the-risk

Cite as 360 Or 58 (2016) 99

determination, defendants do not challenge the sufficiency

of plaintiff’s allegations to establish that defendants’ con-

duct was unreasonable. Thus, for the sake of reviewing the

trial court’s dismissal order, we assume that the Rotary

defendants should not have taken the teenagers to the Zone.

And we assume that the Zone defendants should not have

required patrons to form a line and should have provided

more and better security.

Instead of challenging the reasonable-conduct ele-

ment of plaintiff’s negligence claims, defendants challenge

plaintiff’s pleading of the element requiring that decedent’s

harm was within the foreseeable risks created or increased

by defendants’ conduct. See, e.g., Chapman, 358 Or at 206

(considering “whether plaintiffs’ injuries were within the

type of potential harms that made defendant’s conduct

unreasonable”; affirming summary judgment for defen-

dant); Bailey, 343 Or at 281 (reversing dismissal where

“[t]he type of harm that plaintiff suffered fell squarely

within the scope of the risk that defendant’s negligence cre-

ated”).1 That element identifies the legal limit of liability for

negligently caused harms—that is, the point at which we

will not hold a defendant liable for harms, even if the defen-

dant acted unreasonably and even if the defendant’s conduct

was a but-for (or substantial-factor) cause of the injury. See,

e.g., Stewart, 255 Or at 607 (noting defendant’s negligence

and causation but attempting to “draw[ ] the line at which

the defendant’s liability ends”).

As it relates to that element, overly broad and overly

narrow categories of risk distort the limits of liability:

“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.’ 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.’ ”

1

See Restatement (Third) of Torts: Phys. & Emot. Harm § 29 (2010) (“An actor

is not liable for harm different from the harms whose risks made the actor’s con-

duct tortious.”); id. § 30 (“An actor is not liable for harm when the tortious aspect

of the actor’s conduct was of a type that does not generally increase the risk of

that harm.”).

100 Piazza v. Kellim

Id. at 610 (quoting Robert E. Keeton, Legal Cause in the Law

of Torts, 51 (1963)) (footnotes omitted); see also Chapman,

358 Or at 208 (same) (citing Stewart, 255 Or at 610). Risks

should not be defined so narrowly as to require the defendant

to foresee the precise sequence of events, as they unfolded,

that lead to the particular plaintiff’s particular injury. See

Fazzolari, 303 Or at 21 (so stating). Instead, we focus on

generalized risks of harm. Id. at 13 (citing Stewart, 255 Or

at 610-11). My disagreement with the majority, therefore, is

not whether courts should use “generalized” descriptions of

risk; our cases correctly require us to do so. My disagree-

ment, rather, is over how broadly to define the generalized

risks that we use in this case. As Stewart itself recognized,

a generalized risk of harm may be defined in terms that

are too general. Stewart, 255 Or at 610. Because liability

is intended to track community standards for blameworthi-

ness, risks must be characterized with sufficient particu-

larity to distinguish between conduct that is blameworthy

and conduct that is not. Id. at 608-09 (so stating). Risks that

are defined too broadly—where a finding of foreseeability is

“ ‘inevitable,’ ” id. at 610 (quotation omitted)—cannot serve

as a meaningful limit on the scope of liability. See Fazzolari,

303 Or at 21 (so stating).

There is no single standard for determining the

appropriate level of generality for defining risks. Last

year, in Chapman, this court emphasized the importance

of appropriately identifying how generally to define risks.

358 Or at 208. To do so, “this court’s practice in cases that

address foreseeability as a limit on liability” has been to

“[d]raw[ ] on the plaintiff’s theory of liability” and to “view[ ]

the defendant’s conduct through the lens of the particular

factual circumstances of the case—with emphasis on what

the defendant knew or should have known about the risk of

harm.” Id.

For example, in Stewart, the court addressed the

appropriate level of generality for defining the foreseeable

risks created by negligent welding operations. In that case,

there was no question that the defendant’s unreasonable con-

duct started a fire that spread to a neighboring warehouse.

Stewart, 255 Or at 605. While attempting to prevent further

fire damage on the roof of that warehouse, the plaintiff fell

Cite as 360 Or 58 (2016) 101

through a covered skylight, hit the floor, and suffered vari-

ous injuries. Id. Thus, there was also no question that defen-

dant’s conduct was a factual cause of the plaintiff’s injury.

But the court noted that establishing that the defendant’s

unreasonable conduct caused the plaintiff’s injury is not suf-

ficient to establish liability, because a defendant is not liable

for all injuries caused by his or her unreasonable conduct.

Id. at 606. Instead, a defendant is subject to liability only for

injuries that can be “anticipated.” Id. at 609.

The court concluded that the plaintiff’s injury could

be anticipated because a reasonable person would know that

firefighters “might be injured as a result of a variety of possi-

ble 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.” Id. at 610. Although falling through a covered

skylight might not immediately come to mind as a potential

harm, it was foreseeable because it was within the types of

risks that a reasonable person would reasonably expect a

firefighter to encounter. Id.

The plaintiff’s theory and supporting evidence were

related to firefighting, so the risk of harm was defined in

reference to firefighting. Based on that theory and that evi-

dence, it would have been inappropriate, for example, to

define the risk as being “falling through covered skylights.”

That risk would have been too narrow because it would

have required the plaintiff to establish that defendant had

specific knowledge that the skylight was covered. That risk

would have also been too broad because it would encompass

risks outside the plaintiff’s theory of liability and the evi-

dence offered. Hypothetically, bystanders might have gone

to the roof of a warehouse upwind from the fire simply to

watch the activity. If a bystander on that warehouse fell

through a covered skylight, the defendant’s negligent con-

duct still might have been a factual cause of the resulting

injuries. But the foreseeability of that injury could not have

been established through evidence of the risks encountered

by firefighters.

In this case, plaintiff attempts to establish that

the shooting incident was foreseeable based on defendants’

102 Piazza v. Kellim

knowledge of prior criminal acts at or around the Zone.

As noted above, we assume that defendants’ conduct was

unreasonable, and, therefore, we assume that they had

knowledge of prior criminal acts at or around the Zone that

would cause them to be aware of some continuing risk of

further criminal acts. The question is whether the shooting

incident in this case was among the criminal acts that a rea-

sonable person would foresee based on those prior criminal

acts allegedly known to defendants.

Answering that question requires comparing those

prior criminal acts to the shooting incident in this case.

The majority identifies a number of factors relevant to that

comparison—namely, the degree of similarity, frequency,

recency, and geographic proximity between the plaintiff’s

harm and the prior criminal acts alleged by the plaintiff.

360 Or at ___. And, as the majority notes, similarity may be

based on the nature of the criminal act itself, or it may be

based on other considerations, such as the circumstances of

the offense or the specific types of victims.

Thus, a generalized risk does not need to be defined

so broadly as to capture all of the prior criminal acts that a

plaintiff has alleged. Instead, the risk is based only on those

prior criminal acts that indicate a continuing risk of injury

at the time and place of a defendant’s allegedly negligent

conduct and a plaintiff’s resulting harm. In other words,

the foreseeability of a plaintiff’s injury cannot be based on

prior criminal acts that are too dissimilar, are too remote

in time or place, or otherwise fail to indicate a continuing

risk at the relevant time and place.2 Prior criminal acts that

are dissimilar to the criminal act that caused the plaintiff’s

injury might have signaled a continuing risk of some other

type of harm, but not the risk of harm that the plaintiff suf-

fered. And prior criminal acts that are too remote in time

2

In certain circumstances, prior criminal acts may no longer indicate a con-

tinuing risk, even if the prior criminal acts are close in time and place to the

plaintiff’s injury. In Commonwealth v. Peterson, 286 Va 349, 749 SE2d 307 (2013),

for example, the Virginia Supreme Court held that knowledge that two university

students were shot and killed on campus did not establish the foreseeability of a

mass shooting by the same assailant hours later, which lead to the deaths of 32

people. At the time the mass shooting began, defendants reasonably believed that

the earlier shooting was a domestic incident and that “the shooter had fled the

area and posed no danger to others.” Id. at 359.

Cite as 360 Or 58 (2016) 103

and place might have signaled a continuing risk of harm at

some other time or some other place, but not at the time and

place of the plaintiff’s injury. What counts as dissimilar or

too remote will depend on the plaintiff’s theory of liability

and factual allegations.

For example, in Fazzolari, a female student was

sexually assaulted on school grounds. 303 Or at 3. In assess-

ing the foreseeability of the sexual assault, the court noted

that there was evidence of a prior sexual assault on another

female at the same school only 15 days earlier. Id. at 21.

Although the court in Fazzolari did not expressly apply the

factors that the majority now identifies, that single prior

criminal act established recency, geographic proximity, and

similarity of the criminal act sufficient to allow the issue

to go to the jury. In considering evidence of “various other

kinds of attacks,” the court noted that “evidence of foresee-

ability will differ depending on whether the risk of injury is

claimed to be specific to a school, or schools generally, or a

neighborhood, or a class of potential victims such as women

or particular ethnic groups.” Id.

Similarly, we start by assessing decedent’s injury

in this case and then compare it to the prior criminal acts

allegedly known by defendants. According to plaintiff,

the shooting incident in this case occurred when Ayala

approached a group of teenagers waiting in line at night out-

side the Zone and opened fire with a semiautomatic handgun

with the intent to kill them. As pleaded, Ayala was a para-

noid schizophrenic who was motivated to commit the shoot-

ing by an irrational and hostile fixation with teenagers.3

The prior criminal acts alleged by plaintiff to be

known by defendants relate to the Zone itself and to the neigh-

borhood around the Zone. As it relates to the Zone, plaintiff

alleges that underage nightclubs are inherently danger-

ous because many patrons are young males in “competitive

3

Defendants ask this court to take judicial notice of the fact that Ayala shot

a total of nine people, killing two—decedent and one other victim—and that

Ayala then fatally shot himself at the scene. It would have been more appropri-

ate for defendants to raise that issue in the first instance with the trial court.

Regardless, that issue is beyond the scope of this case because, for the reasons

described in the text, this court should affirm the trial court’s dismissal order

even if we do not take judicial notice of the facts that defendants offered.

104 Piazza v. Kellim

situations” and clubs are often noisy and crowded. But prior

incidents of teenage fights are plainly insufficient to cre-

ate a reasonable expectation of an unprovoked shooting.

Further, plaintiff relies on a shooting in 2002 that injured

three people outside the location later occupied by the Zone.

Although that shooting is a similar criminal act in some

ways, it happened seven years before the shooting in this

case—nothing like the 15 days that separated the crimes in

Fazzolari. Because of that lack of recency, we cannot simply

assume that the causes of the 2002 shooting persisted and

continued to pose a risk of another shooting there in 2009.

And plaintiff alleges no additional facts that could establish

that the 2002 shooting created a reasonable expectation of a

shooting seven years later.

As it relates to the area around the Zone, plain-

tiff alleges that violent assaults occur regularly because of

gangs, drug dealing, and over-consumption of alcohol. To

substantiate that, plaintiff provides crime statistics from an

expansively drawn area, covering the entire Downtown and

Old Town/Chinatown neighborhoods. Plaintiff, however,

makes no allegations addressing the extent to which those

crimes actually happened near the Zone, affected Zone

patrons, or otherwise resembled the unprovoked shooting in

this case. In other words, in an attempt to establish recency

and frequency, plaintiff has stretched the bounds of similar-

ity and geographic proximity.

Nevertheless, the majority insists that a reasonable

jury would be allowed to conclude that defendants should

have foreseen a risk of “violent assault.” 360 Or at ___. The

majority does not further limit its characterization of that

foreseeable risk, which, therefore, covers all types of violent

assault. But the expansiveness of that risk proves that it

is untenably broad. A risk of “violent assault” would cover

nearly all types of violence, including the shooting incident

in this case, but also including sexual assaults, armed rob-

beries, bombings, and even acts of terrorism—each of which

is a type of violence that would not have been foreseeable

based on plaintiff’s allegations. If plaintiff had pleaded that

the shooting incident occurred in a war zone, then we might

expect a reasonable person to anticipate the wide range of

harms that fall within the category of “violent assaults.”

Cite as 360 Or 58 (2016) 105

But plaintiff’s allegations are far more limited than that.

Consequently, the foreseeable risk that may be established

by plaintiff’s allegations requires some limitation.

That limitation separates the types of violence

that could have been reasonably expected from the types

of violence that could not have been reasonably expected.

As explained above, many of plaintiff’s allegations are too

remote to indicate a continuing risk at the time and place

of the shooting.4 Focusing only on plaintiff’s allegations that

indicated a continuing risk of injury at the time and place of

the shooting, plaintiff’s allegations could support, at most, a

conclusion that defendants should have foreseen some types

of violent assaults—namely, those types of violent assaults

that plaintiff alleged to be common in the neighborhood at

the time of the shooting: gang-, drug-, and alcohol-related

violence. Plaintiff’s allegations of prior gang-, drug-, and

alcohol-related crimes indicated a foreseeable risk of harm

at the time of the shooting because, as alleged by plaintiff,

gang-, drug-, and alcohol-related activity continued to per-

sist in the area around the Zone at that time.

The foreseeable risk in this case is defined by the

type of criminal—i.e., whether the criminals whose activi-

ties posed the allegedly foreseeable risks of harm are con-

nected to gang-, drug-, or alcohol-related activities—rather

than the type of crime, because plaintiff’s allegations pro-

vide no other grounds for defining the risk. There will likely

be many cases where the type of criminal will carry less

weight in the foreseeability analysis, such as cases where

the prior criminal conduct is more similar, recent, frequent,

and geographically proximate than those alleged by plain-

tiff. In those cases, it may be reasonable to infer that the

cause of the prior crimes persisted at the time and place of

the later crime. But, given the lack of similarity, recency, fre-

quency, and geographic proximity, that inference is not rea-

sonable based on plaintiff’s factual allegations. See Delgado

v. Souders, 334 Or 122, 135, 46 P3d 729 (2002) (whether an

inference is reasonable is a question of law). Further, plain-

tiff makes no allegation that the Zone specifically attracted

4

The majority appropriately declines to give weight to all of plaintiff’s alle-

gations. 360 Or ___; id. at ___ n 13.

106 Piazza v. Kellim

people wanting to commit unprovoked shootings or people

directing violence at teenage victims. Although the majority

notes that Ayala targeted the Zone because he sought out

teenage victims, 360 Or at ___, ___, plaintiff does not allege

that Ayala’s intention to shoot teenage victims was known

to defendants prior to the shooting incident and, therefore,

cannot provide grounds for establishing foreseeability.

Once the risk posed by the alleged prior criminal

acts is properly defined as gang-, drug-, and alcohol-related

violence, it is apparent that decedent’s harm was not within

the foreseeable risk: Plaintiff makes no allegation that

Ayala was involved in gang-, drug-, or alcohol-related activ-

ities or had any connection to gang members, drug dealers,

or club goers in the neighborhood. Further, eliminating

the risk of gang-, drug-, and alcohol-related activity in the

area around the Zone would have had no effect on the like-

lihood of the shooting incident in this case, plainly estab-

lishing that the risks are distinct. To be sure, gang-, drug-,

and alcohol-related violence are themselves broadly defined

and generalized risks of harm. But to define the foreseeable

risks more broadly than that would improperly divorce the

risk of harm from plaintiff’s theory of liability and from the

factual circumstances alleged by plaintiff to be known to

defendants.

In reaching its conclusion that all violent assaults

in the geographic area that plaintiff identified were foresee-

able, the majority fails to consider the similarity, recency,

frequency, and geographic proximity of the prior criminal

acts. Instead, the majority’s analysis appears to first go off

track by reading more into our prior cases than those cases

can support. According to the majority, “This court’s pre-

vious decisions generally prescribe a relatively broad level

of generality in assessing the reasonable foreseeability of

criminal conduct as a limit on liability.” 360 Or at ___ (citing

Fazzolari, 303 Or at 21).

The problem is that, as noted above, when this

court most recently addressed the process for defining the

foreseeable risks, that process did not “prescribe a rela-

tively broad level of generality,” as the majority now asserts.

360 Or at ___. Instead, after reviewing the same case law

Cite as 360 Or 58 (2016) 107

that the majority reviews in this case, we concluded that

the process for appropriately identifying how generally to

define the risks requires critically assessing the connection

between plaintiff’s theory of liability and the facts alleged to

be within defendants’ knowledge. Chapman, 358 Or at 208.

As a result, our prior cases in fact do not exhibit a prefer-

ence for either a broad or narrow level of generality. Rather,

the appropriate level of generality turns on plaintiff’s the-

ory of liability and the facts alleged to be within defendants’

knowledge. Whether a different theory of liability and dif-

ferent facts alleged in a different case supported a broad

level of generality is immaterial.

In any event, I do not share the majority’s read-

ing of Fazzolari as prescribing that all types of assaults be

treated as one category of foreseeable risks. That decision

never defines an appropriate level of generality. Although

Fazzolari states that “a school’s responsibility for students’

safety against assault is not limited to the risk of rape,”

303 Or at 21, that statement goes to assessing the reason-

ableness of the school’s precautions. The more foreseeable

assaults that might be prevented through a particular

safety precaution, the more likely that it was unreasonable

for the school not to take that precaution. As the court noted

earlier in its opinion in Fazzolari, “[I]t is important that all

foreseeable risks of harm to other classes of persons be con-

sidered in evaluating the reasonableness or unreasonable-

ness of defendant’s conduct.” Id. at 14. But simply because

all foreseeable assaults should be considered when determin-

ing whether conduct is reasonable does not mean that all

assaults are foreseeable.

The majority attempts to justify the broad level

of generality by explaining that location-based risks are

uniquely suited to broadly defined foreseeable risks. The

majority insists that it is appropriate to use a broad level of

generality

“where, as here, the risk of harm at a particular location

is at issue. See, e.g., Uihlein, 282 Or at 641 (‘[T]here must

be something to alert the storekeeper to the likelihood of

harm of some kind from a criminal agency.’). That only

makes sense. When a business owner is on notice that—in

108 Piazza v. Kellim

the absence of reasonable precautions—assaultive conduct

can be anticipated where people are waiting in line to enter

its premises, it rings hollow to suggest that a specific crime

pattern triggers the owner’s duty to protect patrons only

with regard to those specific crimes (such as gang-related

homicide) that have occurred.”

360 Or at ___. But there is no question that a business

owner must take reasonable precautions to protect invitees

from assaultive conduct reasonably expected to occur. The

question is whether the harm that decedent suffered was

among those types of assaultive conduct that defendants

should have reasonably expected to occur.

In answering that question, the majority refuses to

distinguish between criminal conduct based on the charac-

teristics of the shooter:

“To the extent that [defendants’] challenge focuses on the

precise sequence of events that occurred in this case, defen-

dants invite a taxing level of comparison that this court

consistently has rejected. As noted, contrary to defendant’s

focus, foreseeability has reference to ‘the generalized risk

of the types of incidents and injuries that occurred rather

than the predictability of the actual sequence of events.’

See Fazzolari, 303 Or at 13 (discussing Stewart).”

360 Or at ___. In effect, the majority concludes that an

assailant’s methods and motivations are irrelevant to the

foreseeability analysis. But, as described above, plaintiff’s

allegations make them relevant here because only gang-,

drug-, and alcohol-related crimes could have given rise to a

reasonable expectation of injury at the time and place of the

shooting.

From the majority’s perspective, that does not matter

because gang-, drug-, and alcohol-related violence entailed a

risk of a violent assault and a violent assault happened. But,

although we do not require plaintiffs to allege or adduce

facts establishing that the precise sequence of events was

foreseeable, we also do not focus only on the end result—e.g.,

a violent assault—while ignoring the manner in which the

harm occurred. A foreseeable risk cannot be defined without

connecting the end result to the reasons that the risk was

foreseeable in the first place. Therefore, “identical injuries,

Cite as 360 Or 58 (2016) 109

if they occur in different ways or at different times, may be

treated differently.” Restatement (Third) of Torts: Phys. &

Emot. Harm § 29 comment d (2010).5

That principle is well-established in our case law.

For example, in Hefty v. Comprehensive Care Corporation,

307 Or 247, 766 P2d 1026 (1988), the plaintiffs were a minor

who had been a patient at the defendant’s alcohol treatment

center as well as her parents. Id. at 250. The defendant pre-

maturely discharged the minor, who was still suffering from

alcoholism, without notifying her parents or doctor or other-

wise providing alternative arrangements for her care. Id.

The day after the discharge, the minor was involved, as a

passenger, in a traffic accident that did not involve drugs or

alcohol. Id. at 251.

Plaintiffs sued the defendant for negligently dis-

charging the minor. The court resolved the case on foresee-

ability, asking whether the plaintiff’s “injuries fell within

the scope of the ‘generalized risk of the types of incidents

and injuries’ created when defendant discharged [the plain-

tiff].” Id. The court appropriately identified two generalized

types of foreseeable risks created by the defendant’s con-

duct: (1) that the minor would “resume abusing alcohol and

drugs”; and (2) that the minor “would engage in activities

consistent with her impaired judgment and inability to con-

trol her behavior.” Id. at 252.

Notably, the court did not define the risk by the end

result—a traffic accident—even though it was at least plau-

sible that either of those risks could lead to a traffic acci-

dent. If, for example, the minor had been driving and was

under the influence of alcohol, then the accident might have

5

In Legal Cause in the Law of Torts, which this court relied on in Stewart,

255 Or at 610, Keeton expressly warned against ignoring the manner in which

the harm occurred:

“[E]xtreme freakishness of the sequence of events that produces a final state

of affairs that might have been expected to come about in some other way

commends itself as a relevant consideration and stands against a practice

of description of the harm in a way that wholly disregards the mechanism of

injury. The choice of description involves a degree of orientation toward type

of harm on the one hand or toward mechanism of harm on the other hand,

with neither point of view wholly rejected.”

Legal Cause in the Law of Torts at 52.

110 Piazza v. Kellim

fallen within the scope of the risk that she would resume

abusing alcohol. But the fact that defendant’s conduct cre-

ated a risk that could lead to a traffic accident and the fact

that a traffic accident occurred was insufficient, because the

traffic accident that was risked was a different type of traf-

fic accident than the one that occurred. The issue was not

whether the defendant’s unreasonable conduct contributed

to the traffic accident—that would merely establish factual

causation. The issue was whether the reasons that made

the defendant’s conduct unreasonable were related to the

traffic accident that occurred. The court denied liability as

a matter of law because the plaintiffs adduced no evidence

establishing that the minor’s substance abuse or impaired

judgment were related to the traffic accident. The court

held, “ ‘In an extreme case a court can decide that no rea-

sonable factfinder could find the risk foreseeable.’ This is an

‘extreme case.’ ” Id. at 253 (quoting Donaca v. Curry Co., 303

Or 30, 38, 734 P2d 1339 (1987)).

Similarly, in Oregon Steel Mills, Inc. v. Coopers &

Lybrand, LLP, 336 Or 329, 83 P3d 322 (2004), we considered

the liability of an accountant who negligently misstated a

steel company’s earnings, delaying the company’s stock

offering, through which the company intended to raise capi-

tal. Id. at 333. By the time the company’s stock was offered,

the market for steel company stocks had declined. As a

result, the company’s stock sold for less than it would have if

it had not been delayed by the accountant’s negligence, and

the company was unable to raise as much capital as it would

have otherwise. Id.

As in Hefty, the issue in Oregon Steel Mills was not

factual causation; instead, the issue was foreseeability. Id.

at 344 (“There is sufficient evidence of factual causation

* * * . Rather, the critical issue is whether plaintiff’s market

losses were a reasonably foreseeable result of defendant’s

wrongful conduct.”).6 Again, the court did not define the

risk as the end result—stock-price reduction and resulting

6

See, e.g., Solberg, 306 Or at 490 (distinguishing between whether “defen-

dant’s conduct caused a foreseeable risk of harm,” which is an issue of foreseeabil-

ity, and whether “the conduct was a cause of plaintiff’s harm,” which is an issue

of factual causation).

Cite as 360 Or 58 (2016) 111

decrease in the capital raised—even though an accountant’s

negligence entailed such a risk. For example, negligently

misstating earnings might understate a company’s prior

earnings, making the company’s stock less desirable and

impairing the ability to raise capital. Then, there would be

a connection between the accountant’s negligence and the

stock-price reduction that impaired the company’s ability to

raise capital.

But the fact that the accountant created a risk of

a lower stock price and the fact that a lower stock price

occurred was not sufficient, because the stock-price reduction

that was risked was a different type of stock-price reduction

than the one that occurred. Instead, liability required estab-

lishing that the lower stock price occurred in the manner

that was reasonably anticipated. This court denied liability

as a matter of law because the company’s stock price was

not lowered by the accountant’s negligence; it was lowered

by market fluctuations that affected the entire steel indus-

try and had nothing to do with the accountant’s negligence.

Id. (“[P]laintiff seeks damages based solely on a decline in

the price of plaintiff’s stock during the delay that defendant

caused in getting the offering to market, yet plaintiff admits

that the price decline affected all steel stocks and was unre-

lated to defendant’s misconduct.”).7

Other courts have likewise distinguished between

the manner of the harm and the end result under facts

similar to this case. For example, Shadday v. Omni Hotels

Mgmt. Corp., 477 F3d 511 (7th Cir 2007), involved a negli-

gence claim against a hotel for failing to prevent the sexual

assault of the plaintiff, who was a hotel guest. Id. at 511. The

sexual assault was committed by another hotel guest. Id. In

7

The majority attempts to distinguish Hefty and Oregon Steel Mills by

asserting that, “in contrast to the circumstances in those cases, as alleged in

plaintiff’s complaint, the assailant’s access to Delgado and the other teens out-

side The Zone was directly connected to defendants’ asserted negligence.” 360 Or

at ___. But foreseeability does not turn on whether the connection between the

defendant’s conduct and the plaintiff’s injury is direct rather than indirect—both

of which may establish liability. Instead, foreseeability turns on whether the con-

nection should have been reasonably expected. Stewart, 255 Or at 609. In any

event, it is unclear why the connection is more direct in this case than in Hefty

and Oregon Steel Mills. In all three cases, the harm-inducing force is extrinsic to

the defendant’s conduct.

112 Piazza v. Kellim

denying liability as a matter of law, Judge Posner explained

that, based on the evidence adduced, the risk of crime was

from intruders and not from hotel staff or guests. Id. at 516.

Although “the precautions against guest-on-guest crime

are not dramatically different from the precautions against

intruder crime” such that the hotel’s failure to take those

precautions might have been a but-for cause of the guest’s

injury, that fact did not establish liability. Id. at 517. Instead,

regardless of the risk of sexual assault presented by intrud-

ers, “[t]he hotel becomes liable for guest-on-guest crime only

when it has some reason to think such crime likely,” and the

plaintiff presented no such evidence in that case. Id.

It may be worth asking why the manner of harm

matters when a defendant’s conduct is unreasonable and the

end result is the same, regardless of the manner in which it

occurs. Judge Posner addressed that question in Shadday:

“[T]he puzzle of the line of cases that [require the harm to

be within the foreseeable risk] is why the defendant, hav-

ing been negligent, should get off scot-free just because the

harm that would have been averted had he been careful was

not foreseeable.” Id. at 518. He notes that, without requiring

the harm to be within the risk, “negligence liability is poten-

tially too encompassing.” Id.

Our case law reflects those concerns as well.

Liability is intended to turn on fault, and fault is predicated

on blameworthiness. Stewart, 255 Or at 608. “[T]he com-

munity 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 hap-

pen.” Id. at 609. Defining the risk of harm in this case by the

end result—all violent assaults—would allow defendants to

be subject to liability for those violent assaults that could

be reasonably anticipated (gang-, drug-, and alcohol-related

violence) but also allows defendants to be subject to liability

for those violent assaults that could not have been reason-

ably anticipated (such as the shooting incident in this case).

Focusing on the end result, while ignoring the man-

ner in which that end result was reached, is like crediting a

broken clock because it happens to be right twice a day. The

correctness of a broken clock turns on the coincidence that it

Cite as 360 Or 58 (2016) 113

was viewed at the same time of day that it previously stopped

working. But in that case, whether the clock is correct has

nothing to do with whether the clock is functioning properly.

Likewise, whether the end result was foreseeable has noth-

ing to do with a defendant’s blameworthiness unless the end

result occurred in a foreseeable manner. Focusing only on

the end result allows liability to turn on coincidence rather

than blameworthiness.

Finally, the majority opinion emphasizes the notion

that questions of foreseeability should be decided by the jury.

360 Or at ___. Although it is true that foreseeability is a fact

issue, simply identifying an issue as factual does not entitle

a party to a jury trial or even to proceed to summary judg-

ment. Rather, it depends on the relevant facts alleged in the

complaint or established by the summary judgment record.

Only when those facts are reasonably disputed does the issue

go to the jury. The jury’s role, of course, properly can be an

expansive one, particularly in deciding fact-intensive issues

like foreseeability. But even as to foreseeability, the court

retains its role as gatekeeper, allowing cases to proceed to

the jury only if reasonable minds could reach different con-

clusions on whether the facts alleged or adduced could prove

a plaintiff’s case. Stewart, 255 Or at 607.8

The majority defines the foreseeable risk in this

case broadly as “violent assaults” and leaves it to the jury

to decide whether the foreseeable risk should be defined

more narrowly. But the majority fails to explain how a rea-

sonable jury could define the risk that broadly based on the

narrow facts alleged. How broadly or narrowly a reasonable

jury may define the generalized risks foreseeably created by

defendants’ conduct is a question of law appropriately and

necessarily resolved by the courts. See Fazzolari, 303 Or at

17 (defining the role of courts).

Negligence liability is intended to reflect commu-

nity standards of fairness and proportionality. Our system

operates on the “assumption that judges as well as juries

8

In Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), this

court rejected a common misreading of Fazzolari as standing for the proposition

that “all negligence claims based on general foreseeability of a plaintiff’s harm

would reach the jury.” Id. at 511 n 8.

114 Piazza v. Kellim

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.” Stewart, 255 Or at 607-08. When

liability is clearly inappropriate, as it is in this case, “we are

charged with the duty of withdrawing the issue from the

jury.” Id. at 609. Although allowing too few cases to proceed

to trial intrudes on the role of the jury, allowing too many

cases to proceed to trial abdicates the role of the courts.

Consequently, I would affirm the trial court’s dismissal and,

therefore, dissent.

Landau, J., joins in this dissenting opinion.