Fazzolari v. Portland School District No. 1J

717 P.2d 1210, 78 Or. App. 608

• Court: Court of Appeals of Oregon
• Decided: April 16, 1986
• Docket: A8212-07615; CA A34098
• Status: Published

Opinions

WARREN, J.

Plaintiff was assaulted and raped on the grounds of Franklin High School, where she was a student, on May 21, 1982, at approximately 6:50 a.m., after being dropped off by her mother. She was approaching the open school building when the attack occurred. Plaintiff sued the school district to recover for her physical and emotional injuries. She claimed defendant was negligent in failing to supervise or provide adequate security, in failing to warn students after a prior •similar assault and in failing to maintain the property in a way which would decrease the risk of assaults on students. Defendant moved for a directed verdict after plaintiff had presented her case. The trial court granted the motion, and plaintiff appeals. She also assigns error to the trial court’s exclusion of evidence consisting of a summary of police reports of criminal activity at the school.

Plaintiff’s evidence established that defendant’s employes began to open the doors to the school building each day at 6 a.m., and that all doors were opened by 6:45 or 7 a.m. Classes began at 8:15, but some students would arrive before classes began to participate in activities, study or talk. Plaintiffs mother routinely dropped her off at 6:50 a.m., and plaintiff would study, chat or work on signs for the rally squad before classes began. The school had no rules concerning students’ time of arrival, and monitors began patrolling the halls at 8:15.

On May 6, 1982, 15 days before the attack on plaintiff, a woman delivering newspapers to the school was attacked and raped on the same school’s property at approximately 4:30 a.m. A school custodian and the vice-principal testified that they had learned of that attack on the day that it occurred. The vice-principal also testified that he had mentioned the attack to the principal on the same day. The principal denied that he knew of that rape before the date on which plaintiff was attacked. However, on the day the attack on the delivery woman occurred, the school directed that the location and time of the paper drop be changed. The school did not warn students after the attack or change any security measures existing before the attack on plaintiff.

The trial court granted defendant’s motion for a directed verdict, ruling that defendant could not be held liable because the attack on plaintiff was not reasonably foreseeable as a matter of law. The court found that, because the earlier rape was of a non-student and had occurred before the school building was open, it did not “create foreseeability.” Plaintiff contends that there was sufficient evidence from which a jury could conclude that the attack on plaintiff was reasonably foreseeable and that defendant was negligent in failing to take reasonable precautions to reduce the possibility of attacks on its students.

Defendant’s duty to take reasonable precautions to protect plaintiff from reasonably foreseeable criminal acts derives from its position as a possessor of land held open to the public and from its special relationship with the students who attend defendant’s school.¹ The existence of the duty is a question of law. Dewey v. A. F. Klaveness & Co., 233 Or 515, 524, 379 P2d 560 (1963) (O’Connell, J., specially concurring). Other issues regarding defendant’s negligence, such as the foreseeability of the risk of harm and the adequacy of a defendant’s conduct, generally present questions of fact, unless the facts are so extreme that the court can decide the issues as a matter of law.

Stewart v. Jefferson Plywood Co., 255 Or 603, 607-10, P2d 783 (1970), addresses the issue of when a judge may remove a negligence case from the jury:

“The issue of the defendant’s negligence or the plaintiffs contributory negligence is frequently withdrawn from the jury and is resolved by the trial court or by this court as a matter of law. The jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor’s conduct clearly meets the standard or clearly falls below it.

<<* * * * *

“This idea of limiting liability to that which can be anticipated is formulated into the foreseeability test for negligence, which states that one is negligent only if he, as an ordinary reasonable person, ought reasonably to foresee that he will expose another to an unreasonable risk of harm. Foreseeability is an element of fault; the community deems a person to be at fault only when the injury caused by him is one which could have been anticipated because there was a reasonable likelihood that it could happen.

“Thus fault, as the term is usually understood, is not associated with conduct which causes harm through the concatenation of highly unusual circumstances. If, in our appraisal of the community’s conception of fault, we find that the conduct in question clearly falls outside the conception, we are charged with the duty of withdrawing the issue from the jury.

“The specific question before us is, then, whether plaintiffs injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine that the injury was reasonably foreseeable.” (Footnotes omitted.)

We conclude that a jury could find that the attack on plaintiff was reasonably foreseeable because of defendant’s knowledge of the May 6 rape. The facts that the other rape had occurred some two hours earlier in the morning and was not of a student are not so different as to remove the attack on plaintiff from the realm of the reasonably foreseeable.

We also think that a jury could reasonably conclude that defendant’s conduct fell below the community standard of reasonable conduct. After the May 6 rape, defendant took steps to protect the newspaper deliverer by changing the time and location of delivery. It was aware of the danger and the need for caution. It would not be unreasonable to expect defendant to inform its students of that incident so that they could take steps for their own safety. We conclude that the evidence presented a jury question as to defendant’s negligence on the question of the failure to warn and that the trial court erred in directing a verdict for defendant.²

Because we reverse for a new trial, we consider plaintiffs second assignment, in which she contends that the trial court erred in denying admission of a summary of police reports of criminal activity at the school. The exhibit compiles 18 offenses reported between April 21, 1978, and April 12, 1982. Sixteen are listed as “assault — not aggravated — unspecified,” and two are described as aggravated assault, one with a knife and the other with a gun. Defendant objected on the ground that the evidence was irrelevant, because the reported incidents were remote in time and of a different nature from the attack on plaintiff. Defendant also objected on the ground that there was no evidence that the reported incidents had occurred on school grounds.

The trial court could reasonably have concluded that the exhibit contained some irrelevant material, because of the temporal remoteness or nature of the crimes reported. Plaintiff asserts that Brown v. J.C. Penney Co., supra, n 1, controls. That case stands for the proposition that, if

“* * * the exhibit contains both relevant and irrelevant matter, however, and the objection is to the entire exhibit on the asserted ground of want of relevancy, the objection is insufficient to preserve a claim of error. * * * One who objects to an exhibit on the ground that it is not to be received because it contains irrelevant material must object to those specific parts, and an objection to the entire exhibit, if it contains relevant matter, will ‘avail nothing on appeal.’ * * *” 297 Or at 705.

This case is in a different posture from Brown, where the trial court had admitted an exhibit which contained irrelevant material. Here, plaintiff attacks the exclusion of an exhibit which concededly contains some irrelevant material. In this circumstance, plaintiff had the burden of excising the irrelevant portions of the exhibit to preserve the claimed error.

Reversed and remanded.

1 Restatement (Second) Torts, § 344 (1965), provides:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

Brown v. J.C. Penney Co., 297 Or 695, 687 P2d 811 (1984), applied this rule to affirm the liability of the owners and operators of a shopping center to a plaintiff who was attacked in the defendants’ parking lot. Torres v. United States Nat. Bank, 65 Or App 207, 670 P2d 230, rev den 296 Or 237 (1983), holds that a bank owes its customers the duty described in § 344 to take reasonable precautions to protect them from criminal attacks while they are using the bank’s night depository on its premises. Although Torres rests on the use of the term “business invitees” in section 344, a school stands in a sufficiently analogous relationship to its students that it owes the same duty. Peterson v. San Francisco Community College Dist., 36 Cal 3d 799, 205 Cal Rptr 842, 685 P2d 1193 (1984), applied section 344 to hold a community college district liable to a student who paid a fee to park on campus and was attacked in the parking lot area. In view of the Petersen court’s reliance on Jesik v. Maricopa County Com. College Dist., 125 Ariz 543, 611 P2d 547 (1980), we do not think that the fact that the student in Peterson paid a parking fee was necessary to that decision.

Restatement (Second) Torts § 315 (1965) provides:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”

Dailey v. Los Angeles Unified Sch. Dist., 2 Cal 3d 741, 87 Cal Rptr 376, 470 P2d 360 (1970), held that a school district owes its students a duty to protect them from the intentional acts of third parties. We agree that a school district owes its students a duty to take reasonable precautions to protect them from reasonably foreseeable criminal acts.

2 Two allegations of plaintiffs complaint claimed that defendant was negligent in failing to trim or remove certain bushes near the location where plaintiff was assaulted, which could have concealed an assailant or an attack. Plaintiff did not supply any evidence that her assailant concealed himself behind the bushes or that the attack occurred under their cover. Thus plaintiff failed to prove that defendant’s conduct in this respect caused her injury.