"(a) discover that such acts are being done or are likely to be done, or We have heretofore noted our puzzlement by the use of the conjunctive "or" in Uihlein v. Albertson's, Inc., 282 Or. 631, 639 fn. 7, 580 P.2d 1014 (1978). Here, as there, no reason exists to explore the matter.
Two recent cases, with contrasting outcomes, will sharpen our focus. In Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978), a supermarket shopper was assaulted and her pocketbook stolen by an unknown assailant. She alleged a lack of security, argued the market was in a high-crime area in Portland, and relied on the comment of the store's former manager that it was the โroughest storeโ at which he had ever worked.
As possessors of premises, the Zone defendants had an obligation to take reasonable steps to protect the nightclub's visitors from reasonably foreseeable criminal acts by third persons. See, e.g. , Uihlein v. Albertson's, Inc ., 282 Or. 631, 639, 580 P.2d 1014 (1978) (noting that this court previously had adopted standard set out in Restatement (Second) of Torts section 344 comment f (1965) โas being a part of the law of this stateโ). The second special relationship, which plaintiff invoked with respect to the Rotary defendants, is the relationship between a child and a person entrusted with that child's care.
First, the cases have essentially asked the same two questions concerning foreseeability that the Supreme Court asked in Jefferson Plywood: (1) Based on the facts that the defendant knew or should have known, what general class of criminal harm was foreseeable to the defendant?; and (2) was the criminal harm that ultimately befell the plaintiff within that general class of harm? See, e.g., Fazzolari, 303 Or. at 21, 734 P.2d 1326 (considering whether an assault and rape of the plaintiff, a high school student, by an unknown assailant while waiting outside her school was reasonably foreseeable, and reiterating that โthe concept of foreseeability refers to generalized risks of the type of incidents and injuries that occurred rather than predictability of the actual sequence of eventsโ); Uihlein v. Albertson's, Inc., 282 Or. 631, 640โ41, 580 P.2d 1014 (1978) (examining whether โon this record [the defendant supermarket] neither knew nor had reason to know of the likelihood of harmful acts of this kind against its patrons in general and plaintiff in particularโ); Torres v. United States Nat. Bank, 65 Or.App. 207, 215, 670 P.2d 230, rev. den., 296 Or. 237, 675 P.2d 491 (1983) (explaining that the harm to the plaintiff must be within the โgeneral class of harm a reasonable person would anticipate might arise from defendant's conduct, and the person injured must be within the general class threatened by the conductโ). Second, a plaintiff must allege facts demonstrating that the harm by third-party criminal conduct was foreseeable to the defendant in a concrete way and may not rely on the abstract proposition that โcrimes may occur and that the criminals perpetrating them may cause harm.โ
As we noted in McPherson, โbefore Fazzolari, Oregon courts held that a possessor of premises has a duty to protect tenants or invitees from reasonably foreseeable criminal acts of third persons.โ 210 Or.App. at 610, 152 P.3d 918 (citing, among other cases, Uihlein v. Albertson's, Inc., 282 Or. 631, 639, 580 P.2d 1014 (1978), and Torres v. United States Nat. Bank, 65 Or.App. 207, 211, 670 P.2d 230, rev. den., 296 Or. 237, 675 P.2d 491 (1983)). And, as we also observed in McPherson, โfor purposes of determining the scope of duties in โspecial relationshipโ cases, โpre-existing case law has survived Fazzolari.โ โ
" The Supreme Court recognized ยง 344 and comment f as the law of this state in Whelchel v. Strangways, 275 Or. 297, 550 P.2d 1228 (1976); see also Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Yanzick v. Tawney, supra; Brown v. J. C. Penney Co., 64 Or. App. 293, 667 P.2d 1047 (1983); Comment e to Restatement (Second) of Torts ยง 302B (1965). Plaintiff pleads that defendant is in the banking business, owns and occupies the branch bank involved and invited its customers, of whom defendant's employer was one, to make deposits of cash and checks at its branch night depository.
There are, however, cases where the allegedly tortious act is so remote that Oregon courts have ruled the act unforeseeable as a matter of law. See, e.g., Uihlein v. Albertson's, Inc., 580 P.2d 1014 (Or. 1978) (Uihlein). I have carefully considered that portion of Brown's history of violent acts known to the Postal Service or which the Postal Service reasonably should have known.
He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. Restatement (Second) of Torts ยง 344, comment f. Comment f applies to negligence claims arising from assaults by one customer on another customer in a store. Uihlein v. Albertson's, Inc. , 282 Or. 631, 639, 580 P.2d 1014 (1978). A defendant who invites others onto its premises to further the business of the defendant owes a duty to invitees to use due care for the invitee's safety.
es on the part of the owner or occupier to take reasonable measures to protect customers from injuries caused by the criminal acts of unknown third persons when such acts are generally foreseeable. E.g., Cohen v. Southland Corp., 203 Cal. Rptr. 572, 575 (Cal.Ct.App. 1984); Antrum v. Church's Fried Chicken, Inc., 499 A.2d 807, 808-10 (Conn.Super.Ct. 1985); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del. 1987); Stevens v. Jefferson, 436 So.2d 33, 34-35 (Fla. 1983); Taylor v. Hocker, 428 N.E.2d 662, 664 (Ill.App.Ct. 1981); Martinko v. H-N-W Associates, 393 N.W.2d 320, 321-22 (Iowa 1986); Nappier v. Kincade, 666 S.W.2d 858, 860-62 (Mo.Ct.App. 1984); Early v. N.L.V. Casino Corp., 678 P.2d 683, 684-85 (Nev. 1984); Butler v. Acme Markets, Inc., 445 A.2d 1141, 1143 (N.J. 1982);Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451, 457-58 (N.Y. 1980); Foster v. Winston-Salem Joint Venture, 281 S.E.2d 36, 38-39 (N.C. 1981); Daily v. K-Mart Corp., 458 N.E.2d 471, 475 (Ohio Ct. Common Pleas 1981); Uihlein v. Albertson's, Inc., 580 P.2d 1014, 1018 (Or. 1978). Murphy v. Penn Fruit Co., 418 A.2d 480, 482-83 (Pa.Super.Ct. 1980).
Given our opinion in Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970), which indicates that this court believes that it is the rare negligence case which should be taken from the jury to hold for either plaintiff or defendant as a matter of law, I believe a trial judge should be just as cautious in disposing of negligence cases by summary judgment without jury intervention as the judge must be at the close of evidence in a jury trial. This court has so held in Uhlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978). Since my recollection is that that belief was shared by other members of the court and served as one of the bases for allowing review, I had hoped that the opinion of the court would address that matter.