Oregon Case Law Update: When Does a Business have a Duty to Protect Patrons from Violence?
From the desk of Jeff Eberhard: In this case, a teenage exchange student was waiting in line at an underage nightclub when she was shot and killed. The trial court dismissed the claim against the nightclub on the grounds the harm was not foreseeable, but the Court of Appeals reversed. Read on to see how the Oregon Supreme Court ruled.
Claims Pointer: Under Oregon law, a business generally has a duty to protect its patrons from foreseeable harms. Harm caused by criminal activity is usually not foreseeable unless there is a history of criminal conduct in the area, and the business is or should be on notice of the same general type of harm. But when the harm is a random shooting by a mentally ill individual, is it reasonable to find such a harm foreseeable? The Supreme Court held that the facts pleaded by the plaintiff—that there was a history of violent crime in the area and that the nightclub was on notice of that history—were sufficient to survive a motion to dismiss. This case is an important reminder that a plaintiff’s claims will likely not be dismissed on the issue of foreseeability of criminal violence if the plaintiff also alleges the defendant is or should be on notice of past criminal violence.
Piazza v. Kellim, 360 Or 58 (July 21, 2016).
Note: 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 discovery should be allowed and the case can later be decided by either summary judgment or trial.
Martha Delgado (“Delgado”) was a teenage foreign exchange student from Peru staying with a Washington State host family under the supervision of Rotary International. On January 24, 2009, she and a group of approximately fourteen other Rotary exchange students went to an underage club in Old Town Portland called the Zone. While she and the others were standing in line to enter the club, Delgado was shot and killed. The shooter was a mentally ill man who went to the Zone “looking to shoot ‘preppies’ or ‘pop tweens.’” Before shooting Delgado, the man stood in front of the Zone and loaded his pistol. Delgado’s Estate (“the Estate”) sued the Zone for negligence, alleging the Zone failed to protect Delgado from the foreseeable criminal acts of third parties.
The Estate alleged that the surrounding area had a history of gang-, drug-, and alcohol-related violence. In July 2002, a shooter fired into a crowd of people standing outside the same nightclub, striking three people. There was also a history of fights and assaults in the line outside the nightclub. Additionally, the plaintiff alleged that in the years leading up to the 2009 shooting at issue in this case, the downtown entertainment district was “plagued by recurrent incidents of violence” linked to gang activity, clubs in the vicinity exceeding capacity, and clubs serving too much alcohol. The Estate alleged that by January 2009, the neighborhood had multiple agencies serving the addicted, the homeless, and the mentally ill, many of whom bought drugs, and further that the drug dealers, drug users, and gang members who frequented the area “frequently carried weapons.”
The Zone moved to dismiss the Estate’s claims on the ground that the Estate had failed to allege a foreseeable risk of harm to Delgado. The Zone argued that the Estate’s theory of liability—that criminals were more likely to commit crimes in the area in which the Zone was located, that the Zone knew or should have known of that fact, and that Delgado was in fact killed in that area—did not establish a foreseeable risk of the crime that killed Delgado, a “random spree shooting.” The trial court agreed and dismissed the Estate’s claims against the Zone, but the Court of Appeals reversed, holding that the Estate had alleged sufficient facts that would permit a jury to find it reasonably foreseeable to the Zone that people standing in line outside late at night were at risk of harm from violent assault, and that Delgado’s death was within that general class of harm. According to the Court of Appeals, the Estate’s complaint alleged circumstances that were not “so highly unusual, or the sequence of events so attenuated, that no reasonable person in the Zone defendants’ position could have anticipated the harm to Delgado.”
The Supreme Court agreed with the Court of Appeals and affirmed its reversal of the trial court’s dismissal. As the Supreme Court saw it, the question was whether plaintiff alleged facts sufficient to permit a jury determination that reasonable persons in the Zone’s position would have foreseen a risk to Delgado’s safety of the kind that befell her. The Court explained that a defendant such as the Zone need not have been able to precisely predict a specific harm to a particular person to be held liable, nor is it necessary that a number of similar incidents involving a narrow set of victims have occurred at a precise location. Rather, the jury must be able to find that a reasonable person in the position of the Zone would have reasonably foreseen that the location and circumstances posed a risk of criminal harm to persons such as Delgado.
As the Court explained, it is the general nature of the harm at risk, not the particular harm suffered by the particular victim, that controls the analysis of foreseeability. Thus, when a business such as the Zone is on notice that violent assaults can be anticipated where people are waiting in line to enter, the Zone’s duty to protect its patrons would encompass more than just the specific crimes that had previously occurred. Instead, only if the past crimes were so different, so long ago, or so far away from the location of the current crime that no reasonable person could determine that the current crime was foreseeable would a court intervene to remove the matter from the jury. Because the Estate alleged facts showing a history of violent assaults at and near the Zone and provided additional facts that, if proved, would support a finding that a reasonable person in the Zone’s position would have foreseen a risk of violent assault against patrons lined up on the sidewalk outside the club, its allegations were sufficient to overcome a motion to dismiss.
The dissent vehemently disagreed, arguing that the past crimes—gang-, drug-, and alcohol-related violence—were sufficiently different from the crime that actually occurred that Delgado’s death was not foreseeable as a matter of law. For the dissent, characterizing the crime as a “violent assault” was far too broad because it would include all types of violent assaults, from armed robberies to terrorism, which would not have been foreseeable based on the Estate’s allegations.
Nevertheless, the divided court held that the question of whether the shooting was foreseeable was a question for the jury, and therefore dismissing the case was inappropriate. The case was remanded to the trial court for additional proceedings.
View full opinion at: http://www.publications.ojd.state.or.us/docs/S063442.pdf
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.
To email Jeff Eberhard, please click here.
To view the latest Washington Case Law Update: Including Costs in Settlement Offers May Cost You, please click here.