# Buchler v. Oregon Corrections Div.

> Oregon Supreme Court · June 4, 1993 · 316 Or. 499

URL: https://www.frixlaw.com/law-library/cases/9580443

## Case

- **Full name:** Albert BUCHLER, Personal Representative for the Estate of Beverly A. Buchler, Deceased, Respondent on Review, v. STATE OF OREGON, by and Through the OREGON CORRECTIONS DIVISION; Oregon Department of Forestry, Petitioners on Review, and COUNTY OF TILLAMOOK; David Wilson, Sheriff of Tillamook County, Defendants; Charles A. SEELING, Respondent on Review, v. STATE OF OREGON, by and Through the OREGON CORRECTIONS DIVISION; Oregon Department of Forestry, Petitioners on Review, and COUNTY OF TILLAMOOK; David Wilson, Sheriff of Tillamook County; And Marjorie Miller, Defendants
- **Court:** Oregon Supreme Court
- **Decided:** June 4, 1993
- **Citations:** 316 Or. 499; 853 P.2d 798; 1993 Ore. LEXIS 79
- **Precedential status:** Published
- **Opinion:** Concurrence by Peterson
- **Judges:** Fadeley, Peterson, Gillette, Graber, Unis
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580443

## How later opinions describe it (automated extraction)

- explaining that section 319, which provides that “ ‘[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to pre- vent him from…
- holding that as a matter of law, a prison escapee's crimes committed two days after his escape were not the reasonably foreseeable consequence of a prison employee's failure to remove the keys from the prison van from which the inmate escaped
- explaining that "mere '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"
- holding that “mere '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”
- concluding that the defendant was not liable for the plaintiffs injury, “because it was not reasonably foreseeable that [the third party] posed a risk of harm to persons in plaintiffs’ position”

## Opinion text

PETERSON, J.,
concurring.
I concur, but write separately to express concerns about the state of our case law following three 1987 decisions of this court. The majority cites and discusses Fazzolari v. Portland School Dist. No. 1J, 303 Or 1 , 734 P2d 1326 (1987); Kimbler v. Stillwell, 303 Or 23 , 734 P2d 1344 (1987); and Donaca v. Curry Co., 303 Or 30 , 734 P2d 1339 (1987). The majority disapproves the foreseeability rationale of Kimbler , saying: “Kimbler should not be considered as precedent in the future.” 316 Or at 513. I agree, but write separately to express additional concerns about the Fazzolari trilogy.
The Supreme Court of Oregon is a common-law court. In the area of torts, one of its main responsibilities is to formulate and apply common-law rules of conduct. That has been a responsibility of this court since its inception.
Concerning that responsibility, Oliver Wendell Holmes, Jr. (later Justice Holmes of the Supreme Court of the United States), wrote a book in 1881 entitled “The Common Law.” On the first page, Mr. Holmes stated:
“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and *517 political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” O. W. Holmes, Jr., The Common Law 1-2 (1881).
Another eminent jurist, New York Court of Appeals Judge Benjamin N. Cardozo (later Justice Cardozo of the Supreme Court of the United States), gave a series of lectures touching on this subject, later published in a book entitled “The Nature of the Judicial Process.” Concerning the changing nature of the common law, Judge Cardozo stated:
“Not all the progeny of principles begotten of a judgment survive, however, to maturity. Those that cannot prove their worth and strength by the test of experience are sacrificed mercilessly and thrown into the void. The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars. The process has been admirably stated by Munroe Smith: ‘In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental. The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to *518 work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined.’ ” Benjamin N. Cardozo, The Nature of the Judicial Process 22-23 (1921) (quoting Munroe Smith, Jurisprudence 21 (1909)).
Judge Cardozo opined that the common-law process involves continual “retesting and reformulating” of common-law rules, “inch by inch.” Id. at 24-25 .
“There has been a new generalization which, applied to new particulars, yields results more in harmony with past particulars, and, what is still more important, more consistent with the social welfare. This work of modification is gradual. It goes on inch by inch. Its effect must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier.” Id. at 25 .
Judge Cardozo candidly concluded, “Hardly a rule of today but may be matched by its opposite of yesterday.” Id. at 26 .
The beauty and strength of the common-law system is its infinite adaptability to societal change. Recent decisions of this court are illustrative. In Heino v. Harper, 306 Or 347, 349-50 , 759 P2d 253 (1988), the court abolished interspousal immunity, holding “that the common-law rule of inter-spousal immunity is no longer available in this state to bar negligence actions between spouses.” In Winn v. Gilroy, 296 Or 718, 734 , 681 P2d 776 (1984), the court abolished parental tort immunity for negligent injury to minor children. Nineteen years earlier, in Wights v. Staff Jennings, 241 Or 301, 310 , 405 P2d 624 (1965), stating that “it is the function of the judiciary to modify the law of torts to fit the changing needs of society,” the court held that a seller of a product may be held strictly liable for injuries to a plaintiff not in privity with the seller.
The development of the common law occurs in an environment in which tensions abound. On occasion, the Legislative Assembly passes laws in response to decisions of this court. Products liability decisions of this court led to the enactment of a series of products liability statutes now found in ORS 30.900 to 30.927. A decision of this court involving an injury to a skier, Blair v. Mt. Hood Meadows Development *519 Corp., 291 Or 293 , 630 P2d 827 , modified, 291 Or 703 , 634 P2d 241 (1981), led to the enactment of statutes concerning skiing activities, ORS 30.970 to 30.990.
On the other hand, this court, in deciding common-law issues presented to it, has ascertained public policy by looking to legislative enactments. The legislature is incapable of passing laws that govern every conceivable situation that might arise, however. The common-law court is the institution charged with the formulation and application of rules of governing law in situations not covered by constitution, legislation, or rules.
Common-law courts can err. In Tarbet v. Green, 236 Or 361 , 388 P2d 468 (1964), in a unanimous opinion, this court held that the plaintiff was a guest passenger under Oregon’s guest passenger statute, and not entitled to recover. One year later, in 1965, again in a unanimous opinion involving the same statute and similar facts, the court held that a plaintiff was not a guest passenger and overruled Tarbet v. Green because it was “misleading.” Getchell v. Reilly, 242 Or 263, 267-68 , 409 P2d 327 (1965).
The Fazzolari trilogy rests on this precept:
“[U]nless the parties invoke a status, a relationship, or a particular 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 situations under broad and imprecise standards: to determine whether upon the facts alleged or the evidence presented no reasonable fact-finder could decide one or more elements of liability for one or the other party.” Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or at 17.
The Fazzolari trilogy spawned several law review articles. One is by a retired Chief Justice of this court, Kenneth J. O’Connell, Ruminations on Oregon Negligence Law, 24 Willamette L Rev 385 (1988). In the same volume is a student note, The Proper Judicial Role in Negligence Actions: The Fazzolari Trilogy Redefines “Negligence,” 24 Willamette L Rev 443 (1988). The most recent article is by a *520 torts professor at the University of Oregon School of Law, Caroline A. Forell, Replacing Pragmatism and Policy with Analysis and Analogy: Justice Linde’s Contribution to Oregon Tort Law, 70 Or L Rev 815 (1991).
O’Connell, Forell, and the student read the Fazzolari trilogy to stand for the proposition that, with some exceptions, duty is no longer an element of a plaintiffs common-law negligence claim separate from foreseeability. If injury to another is foreseeable, a duty to avoid injury to the other exists.
The Fazzolari, Kimbler, and Donaca opinions have caused much confusion in the bench and bar. I erred in joining in all the reasoning of those opinions. Generations of lawyers and judges lived with the pr e-Fazzolari concept of duty/breaeh/causation with a measure of confidence, confidence born of the certainty that existed under those rules. Even though the post -Fazzolari experience is short — but six years — the experience has been long enough to convince me that this court erred in limiting the role of the judge in controlling the submission to a jury of questions concerning foreseeability.
In the pr e-Fazzolari era, whether a defendant had a duty of care was a question of law for the court. Allen v. Shiroma/Leathers, 266 Or 567, 570 , 514 P2d 545 (1973); Dewey v. A.F. Klaveness & Co., 233 Or 515, 524 , 379 P2d 560 (1963) (O’Connell, J., specially concurring). Justice O’Connell, in his special concurrence in Dewey , explained the roles of judge and jury in traditional negligence law:
“[The judge and jury participate in] the formulation of policy as to the circumstances under which a person who causes or contributes to the causing of harm should be required to respond in damages. The court and the jury, each in its own sphere, participate in the formulation of this policy by which the existence and the extent of liability is defined. The court performs its function in this respect in deciding whether defendant should be regarded as owing a duty in the type of case before it * * *. The jury in turn decides whether the defendant’s conduct meets the minimum standard of reasonable conduct in the community, i.e., the issue of negligence. ’ ’ Dewey v. A.F. Klaveness & Co., supra, 233 Or at 524 (emphasis added).
*521 Before Fazzolari , the foreseeability test was described by the court in Stewart v. Jefferson Plywood, Inc., 255 Or 603, 609 , 469 P2d 783 (1970):
“This idea of limiting liability to that which can be anticipated is formulated into the foreseeability test for negligence, which states that one is negligent only if he, as an ordinary reasonable person, ought reasonably to foresee that he will expose another to an unreasonable risk of harm.” (Emphasis added.) 1
In a negligence case, I see foreseeability as an active force in at least two significant ways. It first enters the calculus when the court is required to consider the legal sufficiency of the plaintiffs claim, as on a motion to dismiss, a motion for summary judgment, or a motion for directed verdict. If the court concludes that the alleged harm to the plaintiff is reasonably foreseeable, the case is submitted to the jury. At this point, the jury, under appropriate foreseeability instructions, will decide whether, in fact, the defendant should have foreseen injury to a person in the plaintiffs position.
I see no vice in recognizing the dual role of foreseeability in the process. Judge Cardozo stated, “The risk reasonably to be perceived defines the duty to be obeyed.” Palsgraf v. Long Island R.R. Co., 248 NY 339, 344 , 162 NE 99 (1928). Respected scholars long have recognized this. Fazzolari itself notes this:
“[Professor Leon] Green described as ‘the strangest chapter in all tort law’ the apparent identity of the foreseeability or ‘anticipation of harm’ formulas in defining the duty to take care, the negligence or breach of the duty of care, and the causal relation. He observed that to leave ‘the delimitation of the law’s protection’ to the jury on the facts of each case ‘would end any possible hope of law crystallization. * * * Thus it would seem that analysis has played itself false, so that a case is seemingly to be subjected thrice to the ponderous process of the “foreseeability” formula.’ Green, Judge & Jury 66-67 (1930). But in fact, he reassured his readers, judges would and should let only doubtful cases go to the jury, and the seeming duplication of tests was only a *522 confusion of‘legal theology.’ Id. at 69 .” Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or at 9 n 8.
Prosser and Keeton, in “The Law of Torts” 357 (5th ed 1984), echo Professor Green:
“[Duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself. Yet it is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised. But it should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” (Footnotes omitted.)
What, then, should be the methodology for deciding a negligence case? A plaintiff must allege facts from which the court may find that the defendant has an obligation to avoid or prevent harm to a person in the plaintiffs position, i.e., a duty. Determining whether a duty exists is a function for the court. In some cases, the plaintiff may allege that the defendant has a duty based on a status, relationship, or previously defined standard of conduct. In the majority of cases, however, the plaintiff must allege facts from which the court could conclude that harm to a person in the plaintiffs position was a reasonably foreseeable consequence of the defendant’s conduct. The same analysis applies to the consideration of affirmative defenses that charge a plaintiff with contributory fault.
Fazzolari requires only that harm be foreseeable. Almost all harm is foreseeable, even though it occurred through some strange concatenation of events. Liability should not be imposed on a defendant unless that defendant reasonably could have anticipated the harm. As Fazzolari now stands, only in an “extreme case” may a court decide that “no reasonable factfinder could find the risk foreseeable.” Donaca v. Curry Co., supra, 303 Or at 38. If aplaintiff s harm is foreseeable (but not reasonably foreseeable), the defendant is held to have acted unreasonably. In effect, the defendant is liable for harm that he or she could not reasonably have anticipated. This anomaly should be rectified by requiring that harm to a person in a plaintiffs position be reasonably foreseeable.
*523 In the evolution of the common law, we occasionally step sideways or backwards. We can move forward again only when those missteps are corrected. Fazzolari has “unforeseeably” complicated Oregon negligence law and detrimentally altered the legal definition of “foreseeability.” Whatever may have been intended by the decision, it has removed judges from the decisional process to the derogation of our common-law tradition.
Gillette and Graber, JJ., join in this concurring opinion.
For a further discussion of this issue, seeForell, supra, 70 Or L Rev at 829-30.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580443. Public record. Not legal advice.