Derby v. Columbia County
336 Or.App. 379 (2024)
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Rule of Law:
A defendant may be held liable under general principles of reasonable foreseeability for the intervening criminal acts of a third party, even without a special relationship. For a bystander to recover for negligent infliction of emotional distress, they must perceive the sudden, serious injury to a close family member, not necessarily the defendant's underlying negligent act that caused the injury.
Facts:
- William Derby, who was diagnosed with schizophrenia, was an inmate at the Columbia County Jail.
- His parents, Michael and Janice Derby, alleged that Columbia County's failure to adequately train jail staff regarding mental illness caused William's mental health to deteriorate.
- After being released from jail, William was hospitalized for mental health treatment for four days.
- Twelve days after his release from jail and following his hospital discharge, William experienced a psychotic episode.
- During this episode, William attacked his mother, Janice Derby, with a knife, causing her serious physical injuries.
- Michael Derby contemporaneously witnessed the entire attack on his wife and, as a result, suffered serious emotional distress.
Procedural Posture:
- Michael and Janice Derby sued Columbia County in the Multnomah County Circuit Court (trial court) for negligence.
- Columbia County moved for summary judgment, which the trial court denied.
- The case proceeded to a jury trial.
- The jury returned a verdict for the plaintiffs, finding the county was negligent in failing to adequately train its staff and that this negligence caused the plaintiffs' injuries.
- The trial court denied Columbia County's motion for a directed verdict against the claims.
- A final judgment was entered in favor of the plaintiffs.
- Columbia County (appellant) appealed the judgment to the Court of Appeals of the State of Oregon, with Michael and Janice Derby as respondents.
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Issue:
Does the bystander recovery test for negligent infliction of emotional distress require the plaintiff to have contemporaneously perceived the defendant's negligent conduct, in addition to the resulting sudden, serious injury to a close family member?
Opinions:
Majority - Tookey, P. J.
No. The bystander recovery test for negligent infliction of emotional distress does not require a plaintiff to have perceived the defendant's negligent conduct; perception of the resulting sudden, serious injury to a close family member is sufficient. The court first established that Columbia County could be held liable for William's criminal acts under general principles of foreseeability, even in the absence of a special relationship giving rise to a duty to control, because the county's conduct unreasonably created the risk of the harm that occurred. Regarding the bystander claim, the court applied the test from Philibert v. Kluser, which adopted the Restatement (Third) of Torts § 48. The core of this test is the 'visceral experience of witnessing the sudden death or injury of a loved one.' This experience serves as an objective indicator of genuine, serious emotional distress. Requiring a plaintiff to also have witnessed the defendant's underlying negligence—which may have occurred remotely in time and place—is inconsistent with the test's purpose and the common law, which allows recovery in cases where the negligent act and the injury are separated. The court found that because a jury determined the county's negligence caused the attack, and because Michael Derby contemporaneously witnessed that attack on his wife, his claim for bystander recovery was viable.
Dissenting - Kamins, J.
The claim should have been dismissed as a matter of law because a jail is not responsible for the future criminal acts of a former inmate it was legally obligated to release. The majority's decision represents a departure from the fundamental principles of tort law that limit liability. Under the Restatement and the law of most jurisdictions, a defendant is not liable for the conduct of a third party absent a special relationship that imposes a duty to control. The majority's reliance on Oregon precedent like Faverty to bypass this rule with a general foreseeability analysis is an error; Faverty itself is a widely criticized 'aberration.' Furthermore, even if foreseeability were the standard, holding the jail liable for an attack that occurred twelve days after release, and after intervening hospital treatment, stretches the concept beyond its reasonable bounds. Public policy should preclude such liability, as it inappropriately uses tort law to solve systemic societal problems related to mental illness and incarceration. The jury's verdict, which found no actual mistreatment but held that a failure to train alone caused the attack, highlights the danger of Oregon's 'inconsistent and idiosyncratic jurisprudence.'
Analysis:
This decision significantly clarifies the bystander recovery rule in Oregon, holding that the plaintiff's perception of the traumatic injury, not the defendant's underlying negligent act, is the critical element. This interpretation lowers the barrier for negligent infliction of emotional distress claims where the negligent act is remote from the injury, such as in cases involving negligent training or product defects. The opinion also reaffirms Oregon's controversial position, established in cases like Faverty, that general foreseeability can create liability for the criminal acts of a third party even without a special relationship, deepening the state's split from the Restatement's majority rule. The dissent argues this approach creates unpredictable and potentially limitless liability, particularly for public institutions like jails.
