Lessons. 1. Sometimes You’re the Bug and Sometimes You’re the Windshield. Christensen v. Epley has been an important case in Oregon in defining governmental liability for failure to protect the public from foreseeable criminal acts and in interpreting claims limits. It was a leading case nationally in abolishing the unfair fireman’s rule. On the other hand, it resulted in a relatively modest recovery for the family of John Christensen and, at best, nominal fees for the lawyers involved. 2. Don’t be Afraid to Appeal. The trial court had a basis in the law for each of its rulings. In at least one instance, reversal required a change in the law. However, the plaintiff’s position had merit and the case needed to be finished. My old boss and mentor, Justice Ed Howell, advised: “If you think you are right, don’t be afraid to appeal.” 3. You Are in the Case to the End. Although the case gave me the opportunity to handle my fourth, eighth, sixteenth and twentieth appeals, it was a definite money loss. But when you sign on to take a case, you sign on to the end and the client deserves your best. 4. Poll the Jury. Pippin tried the case to a jury in The Dalles. The jury first returned a defense verdict. Rather than licking his wounds and limping back home he asked for a jury poll. The result was eight to four. Had a poll not been requested, a defense verdict would have been entered and no settlement would have occurred. Based on Pippin’s experience and example, when I receive an adverse verdict (and there have been a few), I always asked for a poll of the jury. 5. It is not personal. Even though I got knocked down more times than I like to recall, at the end we prevailed. Perhaps my most valuable take-away was that even such a complex and important case need not be personal. I had many positive dealings with Judge Jelderks, both in state and federal court (Judge Jelderks is now a Magistrate Judge for the District of Oregon). Likewise, my relationship in many later cases with opposing counsel has been professional and cooperative. 1. The tortured history of this case is shown by the rather burdensome full citation: Christensen v. Epley, 36 Or App 535, 585 P2d 416 (1978), affirmed in part by an equally divided court and reversed in part 287 Or 539, 601 P2d 1216 (1979), after remand sub nom Christensen v. Murphy, 57 Or App 330, 644 P2d 627 (1982), reversed 296 Or 610, 678 P2d 1210 (1984). 2. People who went to law school in this century might be more familiar with a Motion to Dismiss for Failure to State Ultimate Facts Sufficient to Constitute a Claim. 3. Justice Carson also expressed his agreement with Dean Prosser that the primary basis for the rule, to avoid deterring persons from uttering calls of distress in emergency situations was “preposterous rubbish.” 4. The “dynamite charge” was a useful, but since disapproved prod to the jury to reach a verdict. 5. Although not part of my story, Jim Pippin could add to this retelling with his experience trying a case in The Dalles in front of a jury including four or five red clad citizens of Rajneeshpuram, then the second largest city in Wasco County. Battles Lost and Cases Won continued from p. 49 50 Trial Lawyer | Fall 2024
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