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 doing such harm,’ ” “defines a custodian’s duty [to third parties] concerning a prisoner in Oregon”
How later courts described this case
- 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 doing such harm,’ ” “defines a custodian’s duty [to third parties] concerning a prisoner in Oregon”
- 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”
Written by the judges who cited it.
The opinion
UNIS, J.,
specially concurring.
I concur in the result, but because I cannot agree with all of the majority’s reasoning, I write separately to make four points:
First, this case involves review of a decision to grant a summary judgment under ORCP 47C (“that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”). Kimbler v. Stillwell, 303 Or 23 , 734 P2d 1344 (1987), however, involved review of a decision to dismiss under ORCP 21A(8) (“failure to state ultimate facts sufficient to constitute a claim”). The majority’s analysis is legally sound when it declines to apply a motion to dismiss standard to a summary judgment case, 316 Or at 511, but not when, in so doing, the majority sets up Kimbler 1 as a straw man to overrule by declining to apply Kimbler’s motion to dismiss analysis in this summary judgment case, 316 Or at 509-14.
Second, I agree with the concurring opinion, 316 Or at 522, that a “reasonably foreseeable” test should be applied in determining negligence liability. I made that point recently:
“I believe that negligence law should provide liability for reasonably foreseeable consequences, not for any foreseeable consequences. See Forell, Replacing Pragmatism and Policy With Analysis and Analogy: Justice Linde’s Contribution to *524 Oregon Tort Law, 70 Or L Rev 815, 829-32 (1991) (suggesting that this court describes the test as a factual ‘foreseeability’ test where in practice it applies a ‘reasonably foreseeable’ test).” Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149 , 181 n 6, 843 P2d 890 (1992) (Unis, J., dissenting).
I believe that what I said in Onita, quoted supra, reflects the proper understanding of Fazzolari v. Portland School Dist. No. 1J, 303 Or 1 , 734 P2d 1326 (1987). However, to remove any ambiguity, that emphasis can easily be expressly incorporated in the test of Fazzolari without otherwise disturbing the Fazzolari trilogy.
Third, the concurring opinion reads as though it is totally trashing Fazzolari . The concurring opinion’s recommended methodology, however, is strikingly similar to the methodology of the Fazzolari trilogy that the concurring justices now wish to jettison. That is, where Fazzolari, 303 Or at 17 , states that, “unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty,” the concurring opinion states that, “[i]n some cases, the plaintiff may allege that the defendant has a duty based on a status, relationship, or previously defined standard of conduct,” 316 Or at 522. Where Fazzolari, 303 Or at 17 , states that, otherwise, “the issue of liability * * * depends on whether that conduct unreasonably created a foreseeable risk to a protected interest, ’’the concurring opinion states that, “in the majority of cases * * * 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,” 316 Or at 522 (emphasis in original). Thus, it appears to me that the only real difference is that the concurring justices would allow the court to take a question from the jury where the court considers that there is no duty because the harm was not reasonably foreseeable, a clarification accomplished simply by expressly inserting the word “reasonably” in the Fazzolari test. See supra, point 2.
Fourth, the concurring opinion now extols the virtues of the common-law system, a position that is more consistent with my criticisms of G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54 , 757 P2d 1347 (1988), than with *525 the concurring justices’ support of it. See Keltner v. Washington County, 310 Or 499, 505 , 800 P2d 752 (1990) (majority opinion recognizing G.L. v. Kaiser’s limitation on common-law authority joined by all justices joining the concurring opinion in this case); id. at 510-11 (Unis, J., dissenting) (“[T]he majority declines to undertake reconsideration of [a] nonstatutory rule because of this court’s self-imposed methodology of judicial restraint, which substantially limits its authority to change, modify or formulate common law. The court’s self-imposed rule of judicial restraint rejects competing-policy methodology in judicial common lawmaking”).
In fact, while the concurring opinion states that the Fazzolari opinion was wrongly decided, which is a premise under G.L. v. Kaiser Foundation Hospitals, Inc., supra, 306 Or at 59 , for overruling a case, the concurring opinion does so without reference to G.L. v. Kaiser and its court-imposed restriction on the court’s common-law authority. I dissented in Keltner when all the justices joining the present majority and concurring opinions stated:
“Because plaintiffs have failed to demonstrate affirmatively [under the methodology of G.L. v. Kaiser] that any premise on which this court should appropriately reconsider the rule in issue is present in this case, this court has no grounds to reconsider the [rule involved]. We therefore decline to do so.” Keltner v. Washington County, supra, 310 Or at 510 .
In this case, however, the parties have not suggested, much less “affirmatively demonstrated,” that any of the cases in the Fazzolari trilogy were wrong or should be overruled; yet, the majority overrules Kimbler v. Stillwell, supra, and the concurring justices would overrule Fazzolari and Donaca. Apparently the self-imposed restraint on the court’s common-law authority is heeded only when it is convenient to do so.
I wish to emphasize, however, that I still disagree with G.L. v. Kaiser’s artificial restraints on the court’s common-law authority. Nevertheless, I would not overrule precedent as cavalierly as would the majority and concurring opinions in this case. As I stated in Keltner v. Washington County, supra, 310 Or at 512 :
*526 “I would jettison this court’s self-imposed rule that precludes it from justifying rules of common law or doctrine in terms of policy. Abandonment of the present decision-making methodology employed by this court, which I advocate, does not mean that this court should ignore the doctrines of judicial restraint and stare decisis, which recognize the need for stability and predictability in the development of the law.”
I am not convinced that the Fazzolari trilogy should be overruled.
The court in Kimbler v. Stillwell, 303 Or 23, 29 , 734 P2d 1344 (1987) stated:
“Of course plaintiff may not be able to back [the allegations] up, but the complaint has not even been answered, let alone reached the stage of summary judgment or trial. We hold only that the circuit court erred in dismissing the complaint.”