From the desk of Jeffrey D. Eberhard: It has become an unfortunate American fact that random acts of gun violence have become almost commonplace. The obvious impact of such senseless events is the death and injury of innocent people. Since the criminal does not have assets, naturally the victims of the assault will look elsewhere when seeking to recover money damages for their loss. In the following case, the family of a shooting victim standing in line at a club sought compensation for her death from the business where the shooting occurred. Read on to see whether the Court of Appeals allowed this suit to proceed.
Claims Pointer: In general, harm caused by criminals is not foreseeable to a business where the harm occurred. However, when there is a history of criminal conduct, a business may be on notice of the same general type of harm. In this case, the Oregon Court of Appeals refused to uphold a trial court’s dismissal of a claim in which a mentally ill person shot a random patron waiting in line to get into a club. The important take away from this case is that a plaintiff will likely survive a motion to dismiss and a motion for summary judgment on the issue of foreseeability of criminal violence when the defendant is on notice of any past criminal violence. Whether the criminal act is a random act of violence—as opposed to drug or gang related violence—is irrelevant as long as the general conduct and harm is foreseeable.
Piazza v. Kellim, 271 Or App 490 (2015)
Note: At the outset, it is important to state that this appeal arose out of a motion to dismiss the plaintiff’s complaint. Typically, success on this type of motion is difficult. Merely because an appellate court reverses the granting of a motion to dismiss does not mean that the plaintiff has a valid claim, rather it means that that discovery should be allowed and the case can later be decided by either summary judgment or trial.
Martha Paz de Noboa Delgado (“Delgado”) was a 17 year old foreign exchange student from Peru staying with a host family in White Salmon, Washington. On January 24, 2009, Delgado and fourteen other Rotary foreign exchange students were celebrating a birthday of one of the students by visiting “The Zone,” a Portland dance club for minors. While standing in line to get into The Zone, Delgado was shot and killed. The shooter, Erik Ayala, suffered from mental illness and had gone to The Zone with the intent to kill “preppies.” Delgado’s estate (“Plaintiff”) sued The Zone for negligently failing to protect Delgado from foreseeable criminal acts of third parties.
The Zone moved to dismiss the claims against it on the basis that the plaintiff had failed to state a claim because the shooter’s actions were not foreseeable. The Zone argued that while its club was located in an area that had a history of drug and gang-related violence, it could not foresee this particular injury because the shooting was a random “spree” effectuated by a mentally ill person that could have occurred anywhere. In response, the plaintiff argued that The Zone’s characterization of the foreseeability was too narrow. The plaintiff explained that the foreseeability of harm in this case was foreseeability of violent criminal assault—not foreseeability of “random spree shootings” as argued by The Zone. The trial court agreed with The Zone, concluding that a business can and should be expected to protect patrons from harms associated with that particular business (in this case, gang and drug-related activity), but not from violence that is unpredictable, such as a mass shooting by a mentally ill person that bears no relation to the type of foreseeable harm associated with that particular business. The plaintiff appealed.
The Court of Appeals sided with the plaintiff, concluding that the shooting was not unforeseeable as a matter of law. The Court analyzed Oregon’s case law regarding foreseeability of harm, observing that when the theory of negligence is based on the foreseeability of generalized criminal activity, that is different than analyzing whether it is foreseeable that a particular individual may commit and act of violence (i.e., whether a regular customer may become violent). With regard to a claim based on “generalized criminal activity,” courts focus on whether the particular defendant could foresee criminal activity of the same general nature, i.e., foreseeability of criminal assault. The Zone argued again that the shooting was “random” because Ayala was mentally ill and they could not anticipate that type of criminal act. The Court pointed out that The Zone was clearly on notice of criminal violence because there had been a shooting at The Zone seven years before the incident. There was also a history of fighting and violence in the line outside the club, violent confrontations involving drugs, and gang violence in the neighborhood. The Court further explained that a plaintiff does not need to show that a particular mechanism or series of events was foreseeable to the defendant, only that the type of conduct and resulting harm were foreseeable.
The Court concluded that for purposes of the motion to dismiss, even though the shooting in this case could be characterized as “random,” the type of criminal conduct (a shooting) and harm (injuries caused by third party while standing in line) were foreseeable to The Zone. The Court reversed and remanded.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.