Buchler v. State Ex Rel. Oregon Corrections Division

803 P.2d 733, 104 Or. App. 547, 1990 Ore. App. LEXIS 1682
CourtCourt of Appeals of Oregon
DecidedDecember 12, 1990
Docket87-2012, 87-2024; CA A60439
StatusPublished
Cited by5 cases

This text of 803 P.2d 733 (Buchler v. State Ex Rel. Oregon Corrections Division) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buchler v. State Ex Rel. Oregon Corrections Division, 803 P.2d 733, 104 Or. App. 547, 1990 Ore. App. LEXIS 1682 (Or. Ct. App. 1990).

Opinions

[550]*550JOSEPH, C. J.

In these consolidated actions for wrongful death and personal injury caused by an escaped prisoner, plaintiffs appeal a summary judgment for defendants State of Oregon and Oregon Department of Forestry (defendant).1 We review in the light most favorable to plaintiffs and draw all reasonable inferences in their favor in determining whether defendant established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. ORCP 47; Seeborg v. General Motors Corp., 284 Or 695, 588 P2d 1100 (1978). We reverse.

Simmons was convicted of burglary and unauthorized use of a motor vehicle. In December, 1985, his probation was revoked, and he was sentenced to Oregon State Penitentiary (OSP) for five years. The Oregon Corrections Division Custody Review Committee approved his transfer to the South Fork Forest Camp in Tillamook County in February, 1986. On March 26, 1986, Department of Forestry employee Wright, who was responsible for supervising Simmons and others on an inmate crew, drove the men to a work site approximately 25 miles from the forest camp. When they arrived, most of the crew climbed out of the van and began to assemble their gear. Wright left the van unlocked with the key in the ignition. He directed the men to different areas and instructed them where to begin planting trees. Simmons and several others remained by the van. Simmons climbed into the van, started the engine and slowly drove away. Wright did not pursue the vehicle.2 He reported the escape to officials at [551]*551Forestry, who contacted OSP, the Oregon State Police and the Tillamook County Sheriffs office.

Simmons drove to his mother’s home near Tillamook, where he burglarized the house and stole firearms. Two days later, while attempting to steal their vehicle, he shot and killed plaintiff Buchler’s daughter and shot and wounded plaintiff Seeling as they worked together in the woods near their home, approximately one mile from Simmons’ mother’s house.

Seeling and Buchler’s father, as the personal representative of her estate, brought these actions to recover damages for wrongful death and negligence. They alleged that defendant was negligent in these particulars:

“a. In permitting a prisoner to escape by failing to properly supervise Fredrick Earl Simmons at the Tillamook Forest Camp;
“b. In permitting and assisting a prisoner to escape by leaving a state van unattended and unlocked with the keys in the ignition in the immediate vicinity of a work crew when it knew or should have known that a prisoner was likely to use the vehicle as a means of escape;
“c. In failing to immediately warn and notify the public in general and, in particular, those in the area of the camp that a dangerous prisoner had escaped from the camp when it knew or should have known that Simmons was a danger to the community based on his prior criminal activities!;]
“d. In failing to immediately warn and notify the public in general and more importantly, the personal representative, the decedent and others, who were in close proximity to Simmons’ mother’s home, that a dangerous prisoner had escaped from the work camp when it knew or should have known that Simmons was a danger to the local community based on his prior criminal activities and was likely to be in the vicinity of his mother’s home[;]
“e. In failing to promptly begin an extensive search for Simmons when it knew or should have known that he was likely to be dangerous to the publicf.]”3

[552]*552Defendant moved for summary judgment, arguing. that plaintiffs’ injuries were not foreseeable or, in the alternative, that it was immune from liability for certain allegations and not negligent as alleged for others. The trial court granted the motion, concluding that plaintiffs’ injuries were unforeseeable as a matter of law. See Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987). Plaintiffs argue that summary judgment was improper, because the evidence would permit a jury to find that defendant’s conduct fell within the scope of the generalized risk of the type of incidents and injuries that befell plaintiffs. Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or at 21.

Defendant contends that plaintiffs’ injuries were unforeseeable. First, it argues that the correct starting point for the analysis is not Fazzolari, but whether there was a special relationship between defendant and Simmons. See Restatement (Second) Torts §§ 315(a), 319. Second, it argues that, even if the proper analytical base is Fazzolari, the risk of harm of Simmons’ assaultive behavior was unforeseeable and plaintiffs were unforeseeable victims.

We disagree with defendant’s assertion that “[p]laintiffs * * * can state a claim here only if a ‘special relation’ exists between the state and Mr. Simmons.” A special relationship may be claimed by a plaintiff, as it was in Fazzolari, to impose a heightened duty of care on a defendant. A special relationship may also be claimed by a defendant to limit its liability to specific duties imposed by that relationship. Plaintiffs assert that they pleaded a special relationship between defendant, as custodian, and Simmons, as prisoner, that enhanced defendant’s duty to protect plaintiffs from harm.

However, we need not decide whether the allegations are sufficient to support liability based on a special relationship. Plaintiff alleges that defendant was negligent in permitting Simmons’ escape by failing properly to supervise him and by leaving the key in the van; in failing to warn the public4 of the escape; and in failing promptly to conduct an extensive [553]*553search for Simmons. Those allegations seek to impose liability for failure to warn and failure to provide appropriate safety measures. So, the framework for analysis is set out in Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 438, 760 P2d 874 (1988):

“A defendant may be liable if the defendant can reasonably foresee that there is an unreasonable risk of harm, a reasonable person in the defendant’s position would warn of the risk, the defendant has a reasonable chance to warn of the risk, the defendant does not warn of the risk, and the plaintiff is injured as a result of the failure to warn.”

Defendant’s only arguments relating to the factors articulated in Führer are that the harm was not foreseeable and that its actions were reasonable as a matter of law.5 Defendant first contends that foreseeability of risk of harm is limited to the “narrow issue” of whether it is liable for an escaped inmate’s acts that are outside the scope of the risk of the crimes for which he was incarcerated: burglary and unauthorized use of a motor vehicle. See Hefty v. Comprehensive Care Corp., 307 Or 247, 252, 766 P2d 1026 (1988); Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986).

The nature of the crimes for which Simmons was incarcerated is not, however, the correct focus. See Hefty v. Comprehensive Care Corp., supra, 307 Or at 252. Foreseeability does not require identification of a precise risk.6

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Related

Buchler v. Oregon Corrections Div.
853 P.2d 798 (Oregon Supreme Court, 1993)
Mosley Ex Rel. Dunn v. Portland School District No. 1J
813 P.2d 71 (Court of Appeals of Oregon, 1991)
Zavalas v. State ex rel. Department of Corrections
809 P.2d 1329 (Court of Appeals of Oregon, 1991)
Buchler v. State Ex Rel. Oregon Corrections Division
803 P.2d 733 (Court of Appeals of Oregon, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
803 P.2d 733, 104 Or. App. 547, 1990 Ore. App. LEXIS 1682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchler-v-state-ex-rel-oregon-corrections-division-orctapp-1990.