# Nearing v. Weaver

> Oregon Supreme Court · October 4, 1983 · 295 Or. 702

URL: https://www.frixlaw.com/law-library/cases/9789939

## Case

- **Full name:** NEARING Et Al, Petitioners on Review, v. WEAVER Et Al, Respondents on Review
- **Court:** Oregon Supreme Court
- **Decided:** October 4, 1983
- **Citations:** 295 Or. 702; 670 P.2d 137; 1983 Ore. LEXIS 1549
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Linde, Jones, Peterson, Campbell
- **Cited by:** 74 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/9789939

## How later opinions describe it (automated extraction)

- holding that the plaintiffs sufficiently alleged the violation of “a specific duty imposed by statute[, the Abuse Prevention Act,]” and therefore reversing the lower court’s “incorrect” finding that the plaintiff could not recover for “psychic and emotional injuries”
- recognizing that Oregon law allows recovery of damages for psychic or emotional harm when defendant’s conduct infringes some legal right of the plaintiff independent of an ordinary tort claim for negligence
- recognizing that Oregon law allows recovery of damages for psychic harm when defendant’s *376 conduct infringes some legal right of plaintiff independent of an ordinary tort claim for negligence
- recognizing that Oregon law allows recovery of damages for psychic harm when defendant’s conduct infringes some legal right of plaintiff independent of an ordinary tort claim for negligence

## Opinion text

JONES, J.,
concurring.
When plaintiffs’ counsel first read the majority opinion in this case, they will probably feel like the child at Christmas who asked Santa Claus for a stuffed teddy bear, but instead received a real live cub. They received much more than they requested and the gift may prove to be not only awkward, but also dangerous.
The plaintiffs prayed for a claim of relief based solely on negligence; they received a claim of relief called “statutory *715 tort.” The results of a “statutory tort” are speculative and may be harsh. For instance, is “discretion” always eliminated as a defense? Does comparative fault apply? Is a totally innocent act actionable? To what precedent are we cited for direction?
I submit the following as proof that plaintiffs based their cause of action solely on negligence and did not ask this court to impose liability on any other theory. In their petition for review, plaintiffs assert:
“A. Plaintiffs Have Alleged Physical Injury Accompanying their Mental Distress and are Entitled to Recover Damages Under the ‘Traditional Rule.’
“Oregon and the majority of American jurisdictions provide a cause of action in negligence for mental distress when accompanied by subsequent physical injury. * * *
i(* * * * *
“B. Under the Decisions of This Court, Recovery of Damages for Mental Distress is Allowed Where a Defendant’s Conduct Infringes upon an Independent Legal Right of Plaintiff.
“Plaintiffs’ complaint also states a cause of action under a second major doctrine recognized in Oregon. It is well settled that where a defendant’s negligent conduct causes emotional distress, and where that same conduct constitutes the infringement of a legal right of the plaintiff, damages for the distress are recoverable whether or not physical injury is present. [Citations omitted.] '
“* * * Defendants’ negligent performance of their duties under the Abuse Prevention Act violated plaintiffs’ independent legal right to enhanced police protection, and plaintiffs may recover for the mental distress suffered.” (Emphasis added.)
The plaintiffs’ pleading also sounds in negligence, claiming $143,000 general damages as a proximate result of defendants’ failure and refusal to arrest Robert Lee Nearing, Sr.
In argument before the trial court, the court specifically asked plaintiffs’ counsel this question:
“THE COURT: Mr. Hatton, I’m not sure I understand. If you’re basing this cause of action on the violation of the statutory duty, are you claiming that they negligently or intentionally violated the statute?
*716 “MR. HATTON: That it was negligence, Your Honor.
“THE COURT: Then the cause of action still sounds of negligence?
“MR. HATTON: Yes. They violated their common law duty to exercise due care in carrying out their statutory duty.”
Plaintiffs’ co-counsel then interjected:
“MISS GUNDLE: I just wonder if I could get a try at explaining the difference. The defendants have misunderstood the cause of action. They have understood it to be negligent infliction of emotional distress, which is a cause of action. It is not negligent infliction of emotional distress. The cause of action is negligence. * * *” (Emphasis added.)
In the plaintiffs’ trial memorandum, plaintiffs assert:
“PLAINTIFFS’ CLAIM IS BASED UPON DEFENDANTS’ NEGLIGENT PERFORMANCE OF THEIR STATUTORY DUTY TO ENFORCE RESTRAINING ORDERS”
Continuing with plaintiffs’ trial memorandum, plaintiffs assert that their “claim of negligence can be alternatively premised on the special duty owed [them] by virtue of [their] relationship with the St. Helens Police Department.” They claim “there exists a ‘special relationship creating a duty to use due care for the benefit of particular persons or classes of persons.’ ”
Plaintiffs conclude their trial memorandum with the statement that “[plaintiffs’ damage claim is soundly based upon well-recognized principles of negligence law.” (Emphasis added.)
All of this tells us that plaintiffs’ theory of recovery has been and is based on negligence and no other theory Therefore, plaintiffs did not claim any “statutory tort” notion for recovery as set forth by Justice Linde in the majority opinion.
In Bob Godfrey Pontiac v. Roloff, 291 Or 318, 328-29 , 630 P2d 840 (1981), this court stated:
“From this review of decisions by this court it appears that although this court has stated circumstances under which it would ‘create’ or ‘recognize’ a new cause of action for damages for violation of a statute when there is no ‘underlying’ common law cause of action, the court has never done so to this date. *717 Indeed, this court has said, in effect, in Burnette [v. Wahl], 284 Or 705 , 588 P2d 1105 (1978)], that in a doubtful case it would not do so, but would leave the matter to the legislature. 284 Or at 712 .”
This is not a “doubtful case.” I believe a claim for relief for negligent failure to act is implicit in the legislation and a violation of this statute would be negligence per se. When the evidence establishes that a party has violated a statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. Without such evidence the party is negligent as a matter of law. Barnum v. Williams, 264 Or 71, 79 , 504 P2d 122 (1972).
Plaintiffs in this present case had a legal right, implied by statute, to be protected by the defendants. They may recover damages for proven mental stress, whether accompanied by physical disability or not, if they prove such damages were caused by defendants’ violation of the statute. The defendants will be liable to them for such damages, unless defendants can prove by a preponderance of the evidence that they were acting reasonably under the circumstances then and there existing. All other relevant negligence law would be applicable, including comparative fault if warranted by the facts.
On remand, plaintiffs will probably play it safe and amend their pleadings to proceed on both theories: the first claim for relief based on “statutory tort,” and the second claim for relief based on negligence implied by statute. I predict that future caselaw will probably develop, as it has in the products liability field where “strict liability” claims are gradually eliminating negligence claims, to the point where we will have a new class of “statutory tort” claims which will replace the traditional “statutory negligence per se” claims.
I concur in the result reached by the majority because the trial court should not have granted summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789939. Public record. Not legal advice.