Fuhrer v. Gearhart by the Sea, Inc. , 87 Or. App. 219 ( 1987 )

742 P.2d 58 (1987) 87 Or.App. 219

Myrna FUHRER, Personal Representative of the Estate of Arthur Fuhrer, Deceased, Appellant,
v.
GEARHART BY THE SEA, INC., an Oregon Corporation; the Department of Transportation, State of Oregon, Respondents, and
Clatsop County, Oregon, Defendant.

(CC 84-181; CA A33304).

Court of Appeals of Oregon.

Submitted on Remand April 23, 1987. Decided September 9, 1987. Reconsideration Denied October 9, 1987. Review Allowed November 17, 1987.

Elden M. Rosenthal, Portland, argued the cause for appellant. With him on the briefs were Rosenthal & Greene, P.C., Portland, and Daniel M. Berger, and Berger, Kapetan, Malakoff & Meyers, P.C., Pittsburgh, Pa.

William G. Earle, Portland, argued the cause for respondent Gearhart By The Sea, Inc., an Oregon corp. With him on the brief was Hallmark, Griffith & Keating, P.C., Portland.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, argued the cause for respondent Dept. of Transp., State of Or. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., JOSEPH, C.J., and ROSSMAN, J.

JOSEPH, Chief Judge.

The Supreme Court remanded this wrongful death case for reconsideration in the light of its opinions and decisions in Fazzolari v. Portland School Dist., 303 Or. 1, 734 P.2d 1326 (1987), Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987), and Donaca v. Curry Co., 303 Or. 30, 734 P.2d 1339 (1987). Plaintiff's 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, 734 P.2d 1326. 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 plaintiff's husband. The trial court properly dismissed plaintiff's complaint for failure to state a claim.

Affirmed.