Kerry Senger v. United States

WALLACE, Circuit Judge,

concurring and dissenting:

I concur in part I of the majority opinion, respectfully dissent to part II, and would not reach the issues decided in part III.

Questions of fact, like foreseeability, are issues for the jury and are generally inappropriate to decide on summary judgment. *1445 Thomas v. Newton International Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994). There are, however, cases where the allegedly tortious act is so remote that Oregon eourts have ruled the act unforeseeable as a matter of law. See, e.g., Uihlein v. Albertson’s, Inc., 282 Or. 631 , 580 P.2d 1014 (1978) (Uihlein). I have carefully considered that portion of Brown’s history of violent acts known to the Postal Service or which the Postal Service reasonably should have known. There is no genuine issue of material fact of whether the harm Senger suffered was foreseeable under Oregon law. Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 345 (9th Cir.1978) (“[i]n defining the primary rights and obligations of parties in a diversity suit arising from state law, including elements of. a plaintiffs cause of action, we are, of course, obligated to apply the substantive law of the state”). I conclude as a matter of law that Brown’s attack was unforeseeable and would affirm the district court’s rejection of Senger’s claim of negligent failure to warn. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261 , 134 L.Ed.2d 209 (1996).

Oregon law provides that a defendant may have a duty to warn either by virtue of his special relationship with the plaintiff or because of a general requirement to avoid conduct that unreasonably creates a foreseeable risk to the plaintiff. Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1 , 734 P.2d 1326, 1338 (1987) (Fazzolari). The Postal Service owed Senger, a business invitee, a duty to warn him of the intentional acts of third persons “if [the Postal Service] kn[ew] or ha[d] reason to know that the acts of the third person [were] occurring, or [were] about to occur.” Whelchel v. Strangways, 275 Or. 297 , 550 P.2d 1228, 1232 (1976) (Whelchel) (quoting and adopting as Oregon law Restatement of Torts 2d § 344 and comment f). The majority apparently rules that the Postal Service owed a duty to warn Senger because he was a business invitee and not because there was general foreseeability. I will limit my discussion, therefore, to whether as a matter of law Brown’s actions were foreseeable under the duty to warn business invitees.

The Oregon courts have specifically adopted section 344, comment f, of the Restatement (Second) of Torts, which gives initial guidance as to what types of acts come within a business owner’s duty to warn business invitees. Id. The comment states that an owner of a property “is ordinarily 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.”

, The illustrations to comment f identify certain intentional acts that a business owner should “reasonably anticipate.” These acts, which fall within the duty to warn, are foreseeable, predictable behaviors with established histories, like rush hour crowding in railroad cars. Thus, section 344 raises a preliminary question of whether the Postal Service actually owed a.duty to warn, regardless of whether Brown’s act was foreseeable in this instance. The majority does not solve this problem for us. In any case, Oregon case law states that in order to be legally foreseeable, a harm must be of the type or kind of harm that could be anticipated from the allegedly tortious conduct. See Ollison v. Weinberg Racing Ass’n, 69 Or.App. 653 , 688 P.2d 847, 851 (1984) (Ollison) (“the question is whether the harm is of the general kind to be anticipated from the conduct”).

I focus only on whether Brown’s act itself was legally foreseeable. The initial inquiry is what the Postal Service actually knew or should have known of Brown’s history at the time of the attack oh Senger. The majority asserts that although “the Postal Service may not have been aware of every violent incident listed in Senger’s pleadings and supporting affidavits, Senger has presented enough specific facts to create a genuine issue of fact concerning the foreseeability of the assault.”

The record establishes that the Postal Service knew in January of 1986 that Brown had several, unspecified arrests and two misdemeanor convictions: resisting a police officer in 1971 and harassment in 1977. Further, there was an internal investigation resulting in a recommendation that Brown be dismissed due to his failure to state his misdemeanor convictions on his job application form. Last, Brown was arrested at work in 1985 on a charge of assault against his ex-girlfriend. Thus, the majority’s position is either that Brown’s attack was foreseeable *1446 from knowledge of the unspecified arrests, the specified arrest, and misdemeanors, or that Brown’s complete history should have been known to the Postal Service and that the complete history made the attack foreseeable.

I cannot accept, as a legal proposition, that knowledge of misdemeanor offenses, unspecified arrests, and false submissions on job applications gives rise to a genuine issue of fact of whether Brown’s attack was foreseeable. The facts known to the Postal Service hardly establish Brown’s act as the type of predictable, regular behavior which, under the Restatement and Oregon case law, a rational jury could find foreseeable. See Lindahl v. Air France, 930 F.2d 1434, 1436 (9th Cir.1991). Numerous factors support my conclusion.

First, as stated above, the record indicates that the Postal Service had a far from complete knowledge of Brown’s mental instability and violent behavior, nor did the Postal Service have reason to investigate his violent tendency, since his work behavior was spotless.

Second, the events the Postal Service knew or should have known (the two misdemeanor convictions, the unspecified arrests, and the on-the-job arrest in 1985 for assault of his ex-girlfriend) all occurred between 6 and 20 years prior to the attack. These acts’ temporal remoteness do not establish that Brown was regularly violent, nor do they even establish a material fact as to whether Brown would be violent on the job. The duty to warn only extends to those harmful intentional acts of third persons that “are occurring, or are about to occur.” Whelchel, 550 P.2d at 1232 . Considering the temporal remoteness of Brown’s past violent acts, it cannot be said that his attack on Senger was “about to occur.”

Third, the Postal Service’s January 1986 internal investigation of Brown revealed he had a number of arrests and two misdemean- or convictions; however, that investigation was directed at whether Brown had falsified his employment record. There is no evidence that the investigation put the Postal Service on notice of Brown’s violent behavior.

Last, if we were to attribute knowledge of Brown’s full history constructively to the Postal Service, the Postal Service would only know of Brown’s violent temperament outside the work environment. His behavior on the job displayed absolutely no tendency toward violence. While Oregon law does not require that the harm be foreseeable with “Rube Goldberg”-like precision, see Fazzolari, 734 P.2d at 1338 , it does require that the general type of injury be foreseeable. See Uihlein, 580 P.2d at 1019 ; Ollison, 688 P.2d at 851 . Given the Postal Service’s actual knowledge, and even the knowledge it should have had, the Postal Service could not foresee the type of on-the-job violence which occurred here.

Because Brown’s acts were unforeseeable, I would not reach the question of the Postal Service’s discretionary functions under the Federal Tort Claims Act.