Stewart v. Kids Incorporated of Dallas, OR

To survive a motion to dismiss, a negligence claim must allege facts from which a factfinder could determine: 1) defendant caused a foreseeable risk of harm, 2) of the type the law protects, 3) defendant’s conduct was unreasonable in light of the risk and the cause of plaintiff’s harm, and 5) plaintiff was of the class of persons sought to be protected.

Stewart brought action against Kids Incorporated of Dallas, OR (KI) and Dairy Queen (DQ) on behalf of Stewart’s ward, Jane Doe, for damages resulting from the sexual assault of Jane Doe. Jane Doe participated in a carwash fundraiser held by KI at DQ. Stewart alleged that both KI and DQ were negligent for not taking steps that might have prevented the assault. KI and DQ moved to dismiss, arguing the complaint “failed to state ultimate facts sufficient to constitute a claim” under ORCP 21 A(8). The court granted the motion, stating “that the harm suffered was unforeseeable as a matter of law,” and that the complaint merely stated that a crime was foreseeable, a theory not allowed by the Oregon Supreme Court. Thus, the Court of Appeals held that the trial court did not err in granting KI and DQ’s motion to dismiss. Affirmed.