The First Appeal The case was appealed to the Court of Appeals. The court upheld the application of the $100,000 tort claim limit. However, the court reversed the sustaining of the demurrer and held the injury was a reasonably foreseeable consequence of the negligence alleged and the deceased, a police officer, was within the class of persons who might reasonably be expected to suffer such an injury. Both sides petitioned for review. The Supreme Court accepted review on both questions. On the application of the tort claim limit, the court unanimously reversed. It held that under the new wrongful death statute the term “claimant” under the tort claim limit includes all beneficiaries of the wrongful death claim. Therefore, there was more than one claimant and the $300,000 tort claim limit was applicable. On the dismissal of the claim against the government the Supreme Court was “evenly divided.” Justice Tongue felt that, on each issue, the case presented questions properly to be left to the jury. Justices Peterson and Holman, in “sky is falling” opinions each pointed out that no court has gone so far with regard to foreseeability. This even split, which has occurred in only a handful of cases in Oregon Supreme Court history, resulted in an affirmance of the Court of Appeals. “It’s Alive!” The Battles Continue and the Case is Lost (again). Upon return to the trial court, the defendants filed a motion for summary judgment based on the “fireman’s rule.” Under the “fireman’s rule” an owner of premises is not liable to a fireman for injuries suffered as a result of negligence in creating an emergency. An Oregon case, decided a few years after the death of Officer Christensen, extended this rule of non-liability to police officers and basically expanded this “free pass” to be used against any claim by a first responder. Based on this precedent, the trial court granted the motion for summary judgment and again dismissed the case. The Second Appeal. The Court of Appeals, over a strong dissent of Chief Judge Joseph, affirmed summary judgment. The plaintiff filed a petition for review. In a unanimous opinion by Justice Carson the Supreme Court reversed the Court of Appeals and held the “fireman’s rule,” whether applied to fire fighters or police officers, is inconsistent with the statutory abolition of implied assumption of risk.3 Therefore, the fireman’s rule is “abolished in Oregon.” Rehearing was denied. The Rest of the Story After eight years of getting there, I wasn’t able to actually try the case. A conflict arose in my office and my friend and later co-counsel, Jim Pippin, took over. He tried the case to a jury in The Dalles. The jury first returned a “defense verdict.” Pippin requested a poll and the verdict was 8-4 for the defense. The jury was sent back with a “dynamite charge.”4 It returned after midnight with an equally defective 7-5 verdict. A mistrial was declared.5 The case settled immediately before the retrial. See Battles Lost and Cases Won p. 50 49 Trial Lawyer | Fall 2024
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