Carwash fundraisers. We see them all the time. Thirteen-year-old "Jane Doe" was sexually assaulted in the Dairy Queen bathroom when she attended the fundraiser. Her guardian ad litem sued the Organizer, Kids Incorporated of Dallas, Oregon and the Dairy Queen. Oregon's Court of Appeals ruled that the formal complaint did not present a valid legal claim, because it did not allege enough facts to indicate that either Kids Inc. or Dairy Queen should have anticipated the sexual assault. The opinion discussed the dividing line between when someone can sue a business for a crime committed by someone else.
Oregon's negligence law differs a bit from other states' law. The complaint must allege facts that (1) defendant's conduct caused a foreseeable risk of harm, (2) the law protects people from those risks, (3) defendant's conduct was unreasonable in light of the risks, and (4) the conduct actually caused the harm to a person at risk. The court found the complaint lacking on the first part: as a matter of law, it is not foreseeable that merely inviting strangers to a carwash with teenage girls would lead to a sexual assault in the men's bathroom.
When may crime victims sue a landowner for injuries caused by third persons? The Oregon court discussed when a victim may and may not sue. Situations that are "foreseeable" include the following.
If there has been past problems. For example, a high school girl who was raped on school premises was allowed to sue because another girl had been attacked on the school grounds just 15 days before. Another example is a person could sue a bank when robbed at an ATM in a hidden location because a similar crime occurred at another branch.
If the "place or character of the business" raises the possibility that a person might be endangered. I suppose if someone ran an underground dog-fighting establishment visited by a rough and armed crowd, then the "business" owner could reasonably foresee some trouble. By contrast, the "place or character" of a Dairy Queen is not one where an owner would reasonably anticipate a crime absent any prior issues.
In one of my cases, the Court of Appeals held that my client could sue the bar that over-served her alcohol and ejected her while she was in line for a pay phone to call for a ride home. Instead, she tried to hitchhike and was raped.
On the other hand, just the general notion that the world is dangerous and that people are bad is not enough. In fact, Oregon's Supreme Court held that a crime victim could not even sue the state for a crime committed by a state prisoner who escaped from a work crew using a van in which the supervisor was dumb enough to leave the key.
In Stewart for Jane Doe v. Kids Inc. & Dairy Queen, the facts alleged in the complaint added up to no more than (a) the car wash was advertised, (b) which solicited strangers to attend, and (c) there are a lot of strange men who would like to assault teenage girls. The court said, that's not enough to "foresee" a potential crime under Oregon's negligence law such that defendants should have taken special precautions.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
