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Piazza v. Kellim

Court of Appeals of Oregon

June 3, 2015

Patricia PIAZZA, acting on behalf of Farley Piazza and Associates and as Personal Representative of the Estate of Martha Paz de Noboa Delgado, Deceased, Plaintiff-Appellant,
v.
Bryan KELLIM, dba 99 Pawn & Guns, Defendant, and FIVE STARS, INC., dba the Zone; Concept Real Estate, LLC; Concept Entertainment Group, LTD.; Rotary International and Rotary International District 5100, Defendants-Respondents

Argued and Submitted July 15, 2014

Page 699

120100270. Multnomah County Circuit Court. Edward J. Jones, Judge.

Reversed and remanded.

J. Randolph Pickett argued the cause for appellant. With him on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, and Pickett Dummigan LLP; Benjamin B. Grandy and Benjamin B. Grandy, P.C.

Jonathan Henderson argued the cause for respondents Rotary International and Rotary International District 5100. With him on the brief were William Davis and Davis Rothwell Earle & Xochihua, P.C.

James L. Hiller argued the cause for respondents Five Stars, Inc., dba The Zone, Concept Real Estate, LLC, and Concept Entertainment Group, LTD. With him on the brief was Hitt Hiller Monfils Williams LLP.

Before Lagesen, Presiding Judge, and Tookey, Judge, and Edmonds, Senior Judge. Edmonds, S. J., dissenting.

OPINION

Page 700

[271 Or.App. 492] LAGESEN, J.

This case requires us to again address the issue of how to determine when criminal conduct by a third party is foreseeable to another for purposes of Oregon negligence law. In particular, it requires us to consider whether the plaintiff in this case alleged sufficient facts in his complaint to withstand a motion to dismiss under ORCP 21 A(8) that was predicated on the theory that plaintiff had not adequately pleaded the foreseeability element of her negligence claims against defendants. Plaintiff's decedent was a foreign exchange student who was fatally shot outside an underage nightclub while she and other exchange students were waiting in line to enter the club. Plaintiff subsequently brought negligence claims against the owners and operators of the nightclub and the Rotary organizations that ran the foreign exchange program, alleging that each of those defendants knew of prior instances of violence around the nightclub and failed to take reasonable precautions to avoid the harm that befell the decedent. The defendants moved to dismiss the complaint, on the ground that this particular act of violence--an assault by a mentally ill person who went to the nightclub looking to shoot " preppies" or " pop tweens" --was unforeseeable as a matter of law. The trial court agreed with defendants, ruling that the assault was " a random shooting by a mentally disturbed individual" and that " [n]either the Rotary defendants nor the club defendants could reasonably anticipate the actions of [this particular shooter] or of homicidal mentally ill individuals in general." Because we conclude that the complaint sufficiently alleged the foreseeability element of plaintiff's claims so as to withstand an ORCP 21 A(8) motion, thereby permitting the case to proceed from the pleading stage to the evidentiary stages,[1] we reverse the judgment and remand for further proceedings.

I. BACKGROUND

A. Plaintiff's Allegations

Plaintiff is the personal representative of the Estate of Martha Paz de Noboa Delgado (Delgado). Her complaint alleges the following.

[271 Or.App. 493] 1. Factual allegations

Delgado, a 17-year-old Peruvian resident, was staying with a host family in White Salmon, Washington, as part of an international exchange program run by defendants

Page 701

Rotary International and Rotary International District 5100 (" the Rotary defendants" ). On the evening of January 24, 2009, a group of approximately 14 Rotary exchange students, including Delgado, gathered at the home of the host parents of one of the students for a birthday celebration. Later in the evening, the host parents drove the group to a Portland nightclub, The Zone. The host parents dropped the students off near The Zone without a chaperone and planned to pick them up at 1:00 a.m.

The Zone, which is owned and operated by a family of entities (" the Zone defendants" [2]), was an underage nightclub that admitted people ages 16 to 21 and featured dancing. The Zone frequently had a " cordoned-off line of customers on the sidewalk outside the club waiting to get in." Delgado and the other exchange students were waiting on the sidewalk to get into The Zone when an assailant, Erik Ayala, shot Delgado twice. Delgado died as a result of her injuries. Ayala, who had previously been diagnosed with schizophrenia and had exhibited obvious signs of mental illness and depression to coworkers, " went to [T]he Zone nightclub looking to shoot 'preppies' or 'pop tweens,' against whom he may have held a grudge." Before shooting Delgado, Ayala had stood in front of The Zone and loaded his pistol.

The 2009 shooting was not the first at that particular location. In July 2002, a shooter fired into a crowd of people standing outside the nightclub, striking three people. At that time, the club was named " Quest PDX," but it was owned and operated by the Zone defendants. There had also been a " history of fights and assaults in the line outside the nightclub."

Moreover, The Zone's surrounding area had experienced violent crimes before the 2009 shooting. The Zone [271 Or.App. 494] was located in the " Old Town/Chinatown neighborhood" bordering downtown Portland; it was also part of what is referred to by police as the " downtown entertainment district," which includes several streets in downtown Portland where nightclubs and bars are located. In the years leading up to the 2009 shooting, the downtown entertainment district was " plagued by recurrent incidents of violence," which were " linked by police to gang activity and to clubs in the district exceeding capacity and serving too much alcohol." In 2005, a string of downtown shootings left two people dead and four injured, and police " blanketed the downtown entertainment district with police officers to ease fear." The effort, which was called " Operation Safe Streets," included at least two dozen police officers patrolling on foot and horseback on Friday and Saturday nights through early morning, gang enforcement officers, traffic safety officers, parole officers, and liquor control investigators. Owners of downtown nightclubs were asked to close early on weekend nights and were advised to have adequate security, cut off all intoxicated customers, and respond swiftly to problems or notify police.

After violence continued in the downtown entertainment district, Portland police called a " bar summit" in August 2006 with owners and managers of downtown bars and nightclubs to help them adopt policies to reduce violence. At the meeting, which included a representative of one of the Zone defendants, businesses and police addressed, among other issues, the shootings in the Old Town/Chinatown neighborhood. " It was known by Portland police and club owners alike that there was a high probability that more shootings would take place in the downtown entertainment district."

At the summit, police and businesses also addressed whether the violence on downtown sidewalks and parking lots was related to drunken club-goers (as police believed) or drug dealers (as clubs contended). The Zone was located in what used to be one of Portland's " Drug Free Zones," in which anyone convicted of a drug offense could be barred from returning. The drug-free-zone program expired in 2007, and " drug dealers and addicts took over Portland's Chinatown/Old Town neighborhood" ; " [p]olice officers came [271 Or.App. 495] to refer to the area as 'crack alley' and residents complained of being terrorized by an increasingly aggressive and confrontational breed of drug users and sellers." By

Page 702

January 2009, the Old Town/Chinatown neighborhood " had approximately fourteen agencies serving addicted, mentally ill, and homeless people, more than any other neighborhood in the city, with thousands of clients coming to the area every day. Many of those clients bought drugs."

" Drug dealers, drug users, and gang members, all of whom frequented the area where the Zone nightclub was located, frequently carried weapons * * *." " [S]ome club owners, realizing that their clients were in danger of violent assault, increased security at their bars and nightclubs." In 2006, Dan Lenzen, a principal at one of the Zone defendants, " acknowledged downtown safety problems, but said they were created by 'a few bad apples,'" and that police, liquor control, and others should " work together for the benefit of club-goers."

Before the shooting, The Zone had undertaken measures to provide security for their customers inside and outside their club. Those measures included:

" (a) The Zone had an employee whose primary responsibility was monitoring customers as they come and go from the club. The employee was to assist in line control; to distance 'undesirables,' i.e., intoxicated persons, harassers, transients, known trouble makers, or gang affiliated persons from guests; and to monitor the parking lot and deter potential guests from loitering in or around their cars;
" (b) The Zone nightclub had a security camera that monitored the outside of their establishment;
" (c) The Zone nightclub had a security guard or doorperson at the door outside of the premises who frisked everyone before entry, checking for drugs, alcohol, firearms, or other weapons;
" (d) In the past, The Zone had hired off-duty police officers to provide security for their customers;
" (e) On or about 2006, The Zone nightclub remodeled its facilities in the hopes of attracting a better clientele and reducing problems at the club including violence."

[271 Or.App. 496] Thus, plaintiff alleged, the Zone defendants " knew about the risk of violence that its customers faced."

Plaintiff further alleged that underage nightclubs, generally, are understood to pose " inherent" risks of violence because of the high proportion of young male patrons, high noise levels, crowding, competitive environment, and underage drinking. " A metropolitan nightclub may see as many as three or four assaults on staff each night and are often confronted with armed patrons. Shootings, stabbings, felonious assaults, drug violations, and/or murders are commonplace in metropolitan nightclubs across the country." Indeed, several cities around the country " have banned or heavily regulated teen dance clubs."

According to plaintiff's allegations, the instances of violence that " occurred nationally at underage nightclubs and locally in the area around The Zone nightclub were all publicized in local and/or national media, and [the Rotary defendants] knew, or in the exercise of reasonable care, should have known, about the dangers of leaving [Delgado] at The Zone nightclub on the date and at the time in question."

2. Specifications of negligence

In plaintiff's second amended complaint, which is the operative complaint, she alleged that the Zone defendants owed a duty to Delgado, a business invitee, to exercise reasonable care to make the premises safe for her, including protection from criminal acts by third parties. Plaintiff alleged that the Zone defendants breached that duty in the following particulars:

" (a) In failing to take reasonable measures to protect their customers from the criminal acts of third parties;
" (b) In making their customers stand in line in front of the club;
" (c) In failing to have sufficient security personnel to protect their customers;
" (d) In failing to properly train their staff to identify threats to their customers;
[271 Or.App. 497] " (e) In failing to identify Erik Ayala as a threat while he was in front of The Zone;

Page 703

" (f) In failing to have adequate emergency response procedures in place to protect customers once a threat was identified; [and]
" (g) In failing to warn their customers or the parents of their customers about the risk of being assaulted while ...

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