Bailey v. Lewis Farm, Inc. , 207 Or. App. 112 ( 2006 )

ORTEGA, J.,

concurring.

Plaintiff appeals the dismissal under ORCP 21 A(8) of his claim for negligence against defendant May Trucking Company (May). The sole issue is whether plaintiff pleaded a viable negligence claim against May under the “general foreseeability” analysis of Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987). We affirm by an equally divided court, and I write separately to explain why I concur in that result.

For purposes of reviewing a trial court’s order of dismissal pursuant to ORCP 21 A(8), we accept all of the facts alleged in the complaint as true and give plaintiff the benefit of all reasonable inferences that may be drawn from the facts alleged. Brewer v. Dept. of Fish and Wildlife, 167 Or App 173, 176, 2 P3d 418 (2000), rev den, 334 Or 693 (2002). Plaintiff alleged that, while he was driving westbound on Oregon State Highway 6 in November 2000, a Kenworth tractor-trailer unit heading in the opposite direction lost its left rear axle assembly, causing the dual wheels and tires to come off, bounce across the highway, and collide with the tractor-trailer unit that plaintiff was driving. Plaintiffs vehicle then careened down an embankment and became engulfed in flames, causing serious injuries to plaintiff.

Plaintiff filed a negligence action against three defendants: the owner of the Kenworth, its manufacturer, and May, a prior owner.¹ May had sold the Kenworth to a nonparty a year before the accident, and the Kenworth had changed hands at least once more after that sale. The pertinent allegations in plaintiffs complaint against May are as follows:

“27.

“[May] was the owner of the Kenworth * * * prior to its being purchased by [the current owner]. May purchased the Kenworth * * * when it was new or nearly new, and owned it until selling it in or about November, 1999. The truck was then owned by other non-parties prior to being sold to [the current owner] in or about January, 2000. During the time May * * * owned the truck, it was driven in excess of 500.000 miles.

“28.

“On or about August 8, 1997, maintenance work was performed on the rear axle shaft and the drive axle on the Kenworth * * *, involving one or more spindle nuts.

“29.

“The manufacturer of the Kenworth * * * provided a manual with the vehicle which recommended the following maintenance of the rear axle assembly and bearings:

“a) That the bearings be cleaned and repacked every 25.000 miles; and

“b) That every 100,000 miles, the bearings be disassembled, cleaned, inspected and refilled or repacked with clean lubricant; the bearing play be readjusted; and the rear axle flange nuts be torqued.

“30.

“[May] was negligent in failing to follow the manufacturer’s recommendations regarding maintenance of the rear axle assembly and bearings, in that May * * * failed to perform any of the recommended services during more than 500.000 miles of use. As a result of this failure, the condition of the rear axle assembly and bearings deteriorated, which deterioration was a substantial contributing cause of the failure of the rear axle as described above, and of plaintiffs damages.

“31.

“[May] was negligent in maintaining the truck in that any maintenance to the rear axle shaft and/or drive axle failed to result in a truck that was safe to operate.”

A necessary starting point for any discussion of the sufficiency of a complaint in a negligence case is the Supreme Court’s Fazzolari decision. There, the court imparted the following formulation of the circumstances in which Oregon law imposes liability on a defendant for harm caused by its conduct:

“[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”

303 Or at 17. As that passage indicates, if the plaintiff invokes a special status, relationship, or standard of conduct, then that relationship may create, define, or limit the defendant’s duty to the plaintiff. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 340-41, 83 P3d 322 (2004). In the absence of a special status, relationship, or standard that sets the scope of a defendant’s duty to a plaintiff, liability for harm that a defendant’s conduct causes another is analyzed in terms of the concept of “reasonable foreseeability,” id. at 340, or “general foreseeability,” Slogowski v. Lyness, 324 Or 436, 441, 927 P2d 587 (1996). Either formulation — duty or foreseeability — describes how the law limits the circumstances and conditions under which one member of society may expect another to pay for a harm suffered. Oregon Steel Mills, Inc., 336 Or at 342.

In this case, because plaintiff did not plead a special status, relationship, or standard of conduct, I inquire into reasonable foreseeability — that is, whether plaintiff has pleaded facts indicating a foreseeable risk of harm to plaintiff and conduct by May that was unreasonable in light of that risk. See id. at 340.

Whether an injury is reasonably foreseeable generally presents an issue of fact and, therefore, is not typically resolvable on a motion to dismiss. See generally Cunningham v. Happy Palace, Inc., 157 Or App 334, 337, 970 P2d 669 (1998), rev den, 328 Or 365 (1999). However, there are some circumstances where we will conclude, as a matter of law, that no reasonable factfinder could find that the harm that befell the plaintiff was a reasonably foreseeable consequence of the defendant’s conduct. See Hefty v. Comprehensive Care Corporation, 307 Or 247, 253, 766 P2d 1026 (1988) (concluding as a matter of law that the minor plaintiffs injuries in a motorcycle accident were not a reasonably foreseeable consequence of the defendant alcohol treatment provider’s conduct of discharging the plaintiff against medical advice and failing to notify her parents of her discharge). In order to state a negligence claim under principles of general foreseeability, the plaintiffs complaint must allege facts affording a reasonable factfinder a basis for determining

“ ‘(1) that [the] defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that [the] defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiffs harm, and (5) that [the] plaintiff was within the class of persons and [the] plaintiffs injury was within the general type of potential incidents and injuries that made [the] defendant’s conduct negligent.’ ”

Slogowski, 324 Or at 441 (quoting Solberg v. Johnson, 306 Or 484, 490-91, 760 P2d 867 (1988)).

Oregon Steel Mills, Inc., provides a recent example of circumstances where the Supreme Court concluded that no reasonable factfinder could find that the harm that befell the plaintiff was a reasonably foreseeable consequence of the defendant’s conduct. There, the plaintiff steel company was planning to make a public offering of its stock and debt. 336 Or at 333. Because of the need to correct the defendant accounting firm’s errors in financial statements filed with the SEC, the offering was delayed for about a month. Id. Over the course of that month, the price of the stock declined — and the plaintiff then sought to recover the difference between the price it actually received for the stock and the price it would have received on the earlier date, that is, the date the stock would have issued but for the defendant’s negligence. Id. at 333-34.

The Supreme Court concluded that the decline in stock price was, as a matter of law, not reasonably foreseeable, so the defendant could not be liable for damages based on that decline. Id. at 348. The corut explained that, even though the defendant’s conduct caused the delay in the offering that in turn led to an adverse result for the plaintiff, “the intervening action of market forces on the price of [the] plaintiffs stock was the ‘harm-producing force [.]’ ”² Id. at 345. In the court’s view, “[the] defendant’s actions did not ‘cause’ the decline in the stock price so as to support liability for that decline.” Id. Accordingly, “As a matter of law, the risk of a decline in [the] plaintiffs stock price * * * was not a reasonably foreseeable consequence of [the] defendant’s negligent acts * * Id.

The court noted parallels between that case and a prior decision, Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993). Oregon Steel Mills, Inc., 336 Or at 344-45. In Buckler, the court held, as a matter of law, that a prison escapee’s crimes committed two days after his escape were not reasonably foreseeable consequences of a prison employee’s failure to remove the keys from the prison van in which the inmate escaped. 316 Or at 511-12. The court explained that an “intervening criminal instrumentality caused the harm and created the risk” in Buckler.

“While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.”

316 Or at 511. It was the intervening intentional criminality of another person that was the “harm-producing force” in Buckler, accordingly, despite the fact that leaving the keys in the van facilitated the harm, that act “[did] not cause the harm so as to support liability for it.” Id. at 511-12.

Oregon Steel Mills, Inc., and Buckler illustrate two related principles underlying the determination of when liability may be imposed based on general foreseeability. First, the fact that a defendant’s conduct created a risk of harm that was literally foreseeable is not enough to support the imposition of liability for that harm. In Oregon Steel Mills, Inc., it was literally foreseeable that the accounting error could delay the offering, resulting in a drop in price due to market fluctuations, because “it is common knowledge that stock prices fluctuate.” 336 Or at 336, 344. In Buckler, it was literally foreseeable that leaving the keys in a vehicle in the vicinity of prisoners created a risk that a prisoner would escape and engage in criminal activity while at large. 316 Or at 511. In both cases, despite the literal foreseeability of the harm that materialized, the court held that liability could not be imposed as a matter of law. Its conclusions in both cases reflect a recognition that “[a]lmost all harm is foreseeable, even though it occurred through some strange concatenation of events.” Id. at 522 (Peterson, J., concurring). The critical question is whether the harm that materialized was a reasonably foreseeable consequence of the defendant’s conduct.

The second, but related, principle underlying the determination of when liability may be imposed based on general foreseeability is the need to consider the role of intervening actions or events in producing the harm. In Oregon Steel Mills, Inc., market forces intervened to become the “harm-producing force” that led to the plaintiffs losses; in Buckler, the prisoner’s criminal acts likewise intervened. The court in both cases noted that, although those intervening instrumentalities were predictable, they did not find their impetus in the defendant’s negligent actions. Oregon Steel Mills, Inc., 336 Or at 344 (noting that the price decline affected all steel stocks and was itself “unrelated to [the] defendant’s misconduct”); Buchler, 336 Or at 512 (noting that the vehicle with the keys left in it was not “the mechanism by which the escaped prisoner inflicted the harm; rather, it was merely one of [several] means by which an escape was * * * equally possible”). Market forces were seen to have an independent impetus in Oregon Steel Mills, Inc., as did the criminal actions of the escapee in Buckler.³

We return to plaintiffs claim against May. Plaintiff alleges that May failed to perform recommended maintenance of the rear axle assembly and bearings of the Kenworth, causing them to deteriorate and that, ultimately, that deterioration was a “substantial contributing cause” of the accident that injured plaintiff. However, the complaint also alleges that, between May’s alleged negligent conduct and the accident, the Kenworth had been sold not once, but twice, and that May had not owned the Kenworth for a year. Under those circumstances, I would conclude that the injuries to plaintiff were not a reasonably foreseeable consequence of May’s alleged failure to maintain the Kenworth as a matter of law.⁴

Despite the paucity of case law on the subject in Oregon, we have little trouble recognizing that, under some circumstances, a vehicle owner’s failure to maintain a vehicle may cause a reasonably foreseeable risk of harm to other drivers that could form a basis for liability for resulting injuries. Indeed, the Oregon Vehicle Code recognizes that risk by imposing penalties for driving an unsafe vehicle.⁵ However, once ownership and control of the vehicle have been relinquished, the prior owner loses the ability to make an ongoing determination of whether the vehicle is safe to drive. That ongoing determination can be made only by those exercising ownership and control over the vehicle. Here, May lost that ability an entire year before the accident, and the vehicle had been in the hands of two subsequent owners during that year. Under the circumstances alleged, negligent maintenance of a vehicle during a prior period of ownership, without more, cannot form the basis for liability for injuries that occur a year after that prior owner has relinquished the ability to assess and control the vehicle’s roadworthiness. Although one can imagine circumstances in which such injuries would be literally foreseeable by the prior owner, they would not be reasonably foreseeable.

That is so because the actions of those who drive and maintain a vehicle at the time of an accident — those who exercise the ability, to the extent possible, to assess the vehicle’s roadworthiness — form the intervening harm-producing force behind any injuries that result from the unsafe condition of the vehicle.⁶ Although it is literally foreseeable that later owners or drivers may fail to ensure that a vehicle is in a safe condition before driving it, that level of foreseeability does not make the condition of the vehicle the legal responsibility of all prior owners who may have contributed in some way to the vehicle’s state of repair. Cf. Buchler, 316 Or at 511 (“While it is generally foreseeable * * * that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.”).

Contrary to Judge Haselton’s suggestion, 207 Or App at 123, 124, 127 (Haselton, J., dissenting), my holding would not support the proposition that the “mere transfer of ownership” relieves a negligent prior owner from liability. The critical fact is not merely the transfer of title; rather, defendant here is relieved of liability under the facts alleged because the title was transferred a year before the accident, long after defendant could have exercised any ability to make the ongoing determination that the vehicle was safe to drive, and because no other facts are alleged to support a finding that the later owner’s actions in operating the vehicle in its current condition were somehow attributable to actions of defendant. Contrary to Judge Haselton’s concerns that I am somehow “chart [ing] a new legal course,” 207 Or App at 127 (Haselton, J., dissenting), actually the opposite is true; we have found no precedent for treating allegations such as are stated here to be sufficient to state a claim for negligence.⁷ Indeed, given the difficulty of insuring against potential claims for injuries occurring years after selling a vehicle but alleged to be the result of negligent maintenance of a vehicle during a prior period of ownership, the implications of the dissenting opinions are troubling.⁸

Plaintiff has not alleged facts that would support a finding that his injuries, occurring a year after May last exercised any control over the Kenworth and while the Kenworth was in the possession of an owner with whom May had had no contact, were a reasonably foreseeable consequence of May’s alleged ongoing failure to maintain the Kenworth during May’s prior period of ownership.

For the reasons stated above, the proper disposition of this appeal is to affirm the trial court.

Brewer, C. J., Edmonds, Landau, and Linder, JJ., join in this concurrence.

1 Among other things, plaintiff alleged that the present owner’s employee, acting in the course and scope of employment, operated the Kenworth in a negligent manner and that the owner was negligent “[i]n failing to regularly and properly inspect the axle assembly to discover loose attachments” and “failing to maintain the truck so it was safe to operate!.]” He further alleged, as to the manufacturer, that the design of the Kenworth was defective. Plaintiffs claims against those defendants were dismissed (a voluntary dismissal with prejudice followed settlement of his claims against the present owner, and dismissal of the claims against the manufacturer followed its unopposed motion for summary judgment). Plaintiffs appeal concerns only his claim against May.

2 The court identified an “intervening action” (market forces) that constituted the “ ‘harm-producing force[.]’ ” 336 Or at 345. For brevity’s sake, we refer to that limiting concept as “intervening harm-producing force.” I do not understand the Supreme Court to have intended to refer to the similarly named concept of “superseding cause.” Contrary to the analysis in Judge Haselton’s dissent, therefore, passages of the Restatement (Second) of Torts addressing “superseding cause” are not helpful to understanding the principles discussed in Oregon Steel Mills, Inc.

3 Judge Armstrong, in his dissent, asserts that Oregon Steel Mills, Inc.— despite Buckler — is an “anomaly” with a much more limited reach, confined only to “the realm of securities and similar market transactions.” 207 Or App at 133-37 (Armstrong, J., dissenting) (emphasis in original). However, I find no indication in the opinion itself that the Supreme Court intended its reach to be so limited. Indeed, although the court discussed the defendant’s “loss causation” arguments, its decision was grounded in the “significant parallels” between Oregon Steel Mills, Inc. and Buchler. Oregon Steel Mills, Inc., 336 Or at 344.

4 I express no opinion regarding the sufficiency of a complaint in which, for example (as in Judge Haselton’s hypothetical, 207 Or App at 127 (Haselton, J., dissenting)), a plaintiff alleges that a former owner concealed a known defect or that the former owner had sold the vehicle so recently that the current owner had no real opportunity to inspect or repair the vehicle. Although Judge Haselton expresses concerns about cases in which a seller might fail to disclose a previous failure to maintain, 207 Or App at 124, 127 (Haselton, J., dissenting), this case simply does not involve such circumstances. Plaintiff makes no allegation that May concealed or failed to inform the nonparty to whom it sold the Kenworth of the vehicle’s prior maintenance record. In fact, in response to May’s motion to dismiss, plaintiff noted that this case does not involve “a failure to warn[; r]ather, plaintiffs cause of action against May is a failure to maintain or repair.” Under plaintifP s theory of the case, a seller must repair a vehicle before selling it (regardless of any disclosures made about the vehicle’s condition) or else face liability for any injury that may result to anyone from the vehicle’s condition, long after the sale is complete and regardless of the new owner’s negligence in maintaining or operating the vehicle or assessing its roadworthiness. Oregon negligence law does not support that result.

5 ORS 815.020 provides:

“(1) A person commits the offense of operation of an unsafe vehicle if the person does any of the following:

“(a) Drives or moves on any highway any vehicle which is in such unsafe condition as to endanger any person.

“(b) Owns a vehicle and causes or knowingly permits the vehicle to be driven or moved on any highway when the vehicle is in such unsafe condition as to endanger any person.

“(2) The offense described in this section * * * is a Class B traffic violation.”

(Emphasis added.)

6 Judge Haselton contends that May’s negligent failure to maintain the axle was the “harm-producing force,” equivalent to the stock market decline in Oregon Steel Mills, Inc., 207 Or App at 126 (Haselton, J., dissenting). However, failing to maintain a vehicle, unless or until that vehicle is operated, generally will not create a risk of harm to drivers or passengers in other vehicles. It is the operation of an unsafe vehicle, not the mere failure to maintain the vehicle, that creates a risk that accidents will occur. Here, May had sold the vehicle to a nonparty and thus had lost any ability to control the vehicle’s maintenance and operation over a year before plaintiff was injured. The force that produced harm to plaintiff was the defendant-owner’s maintenance and operation of the Kenworth; indeed, plaintiffs complaint specifically alleges as much.

7 Decisions from other jurisdictions have disallowed claims similar to the one alleged by plaintiff. Stapinski v. Walsh Constr. Co., Inc., 272 Ind 6, 395 NE2d 1251 (1979) (affirming summary judgment against the plaintiff in a negligence action against the prior owner of a vehicle sold 15 months earlier); Bruce v. Martin-Marietta Corp., 544 F2d 442 (10th Cir 1976) (affirming summary judgment against the plaintiff in a negligence action against the prior owner of an airplane sold three years earlier).

8 Judge Armstrong opens with the suggestion that we are engaged in “freewheeling judicial policy declarations and thinly disguised value judgments [,]” 207 Or App at 128 (Armstrong, J., dissenting) (internal quotation marks omitted), yet closes with the blithe observation that May could yet defeat plaintiffs claim on stammary judgment. However (leaving aside the serious question of whether summary judgment would be any more attainable than dismissal on the pleadings under Judge Armstrong’s view of Oregon negligence law), allowing claims such as this one to proceed to litigation, even to the summary judgment stage, is not a value-neutral decision. Our opinion is, at least, consistent with the division of responsibility for safe operation of a vehicle contained in the Oregon statutes and with case law from other jurisdictions. Judge Armstrong points to no authority beyond his reading of the case law as support for his own view, with its attendant and serious consequences. In any event, whatever the relevant merit of the positions expressed by this opinion and the dissenting opinions may be, no one can lay claim to have avoided the “policy-makingjourney” decried by Judge Armstrong.