Opinion
87-2658-J-1; CA A50322
Argued and submitted February 5, 1990
Reversed and remanded March 14, 1990
Appeal from Circuit Court, Jackson County.
L.A. Merryman, Judge.
William S. Dames, Medford, argued the cause for appellant. With him on the brief was Dames Dames, Medford.
Robert J. Ericsson, Portland, argued the cause for respondent. With him on the brief were Timothy J. Zimmerman, Portland, and Martin, Bischoff, Templeton, Ericsson Langslet, Portland.
Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded.
In the process of crop dusting a neighboring farm in 1987, defendants flew near plaintiff's property, allegedly causing plaintiff's foxes to eat their young. Plaintiff filed this action, alleging that defendants were negligent. Plaintiff appeals from a summary judgment granted to defendants Rogue Air Applicators, Inc., and Conner. ORCP 47C. Plaintiff argues that a material issue of fact exists as to whether defendants had notice of the harm that could result from flying their airplane too near plaintiff's farm.
Melrose Orchards, Inc., was dismissed as a party to the appeal by stipulated motion.
In opposition to defendants' motion for summary judgment, plaintiff averred that phone calls were made to defendants from 1982 to 1985, warning them of the danger to plaintiff's foxes. Plaintiff testified in a deposition that, when Conner was notified of the loss, he told plaintiff that he knew that plaintiff was raising foxes and had experienced a similar problem involving mink in Idaho.
There was evidence that the harm was foreseeable and there is a genuine issue of material fact whether defendants were negligent. See Docken v. Ciba-Geigy, 86 Or. App. 277, 281, 739 P.2d 591, rev den 304 Or. 405 (1987). The trial court erred in granting the summary judgment.
Reversed and remanded.