Fuhrer v. Gearhart by the Sea, Inc.

742 P.2d 58, 87 Or. App. 219

• Court: Court of Appeals of Oregon
• Decided: November 17, 1987
• Docket: CC 84-181; CA A33304
• Status: Published

Opinion

JOSEPH, C. J.

The Supreme Court remanded this wrongful death case for reconsideration in the light of its opinions and decisions in Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), Kimbler v. Stillwell, 303 Or 23, 734 P2d 1344 (1987), and Donaca v. Curry Co., 303 Or 30, 734 P2d 1339 (1987). Plaintiffs husband drowned while trying to rescue three children swimming in the ocean from a publicly owned beach adjacent to an inn. Plaintiff alleges negligence by Gearhart by the Sea, the innkeeper, and by the State of Oregon in failing to warn of or protect against the dangers of the ocean.

In Fazzolari, the court said that liability for negligence is determined by whether the defendant’s “conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell [the] plaintiff.” 303 Or at 17. Plaintiff does not allege that conduct of either of the defendants created the risk to her husband. Even if a duty to warn might have existed because of a status, relationship or particular standard of conduct, the failure to warn did not create the risk to plaintiffs husband. The trial court properly dismissed plaintiffs complaint for failure to state a claim.

Affirmed.