Buchler v. Oregon12/12/1990
COURT OF APPEALS OF OREGON
CA No. A60439
1990.OR.40082 ; 104 Or. App. 547; 803 P.2d 733
December 12, 1990
ALBERT BUCHLER, PERSONAL REPRESENTATIVE FOR THE ESTATE OF BEVERLY A. BUCHLER, DECEASED, APPELLANT,
v.
STATE OF OREGON, BY AND THROUGH THE OREGON CORRECTIONS DIVISION; OREGON DEPARTMENT OF FORESTRY, RESPONDENTS, AND COUNTY OF TILLAMOOK; DAVID WILSON, SHERIFF OF TILLAMOOK COUNTY, DEFENDANTS. CHARLES A. SEELING, APPELLANT, V. STATE OF OREGON, BY AND THROUGH THE OREGON CORRECTIONS DIVISION; OREGON DEPARTMENT OF FORESTRY, RESPONDENTS, AND COUNTY OF TILLAMOOK; DAVID WILSON, SHERIFF OF TILLAMOOK COUNTY; AND MARJORIE MILLER, DEFENDANTS
Appeal from Circuit Court, Tillamook County. James A. Mason, Judge. Nos. 87-2012, 87-2024.
Ted E. Runstein, Portland, argued the cause for appellants. With him on the brief were David C. Noren, Kell, Alterman & Runstein, Portland, and John H. Tuthill, Tillamook.
Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Joseph, Chief Judge, and Riggs and Edmonds, Judges. Riggs, J., concurring.
Joseph
In these consolidated actions for wrongful death and personal injury caused by an escaped prisoner, plaintiffs appeal a summary judgment for defendants State of Oregon and Oregon Department of Forestry (defendant). We review in the light most favorable to plaintiffs and draw all reasonable inferences in their favor in determining whether defendant established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. ORCP 47; Seeborg v. General Motors Corp., 284 Or 695, 588 P2d 1100 (1978). We reverse.
Simmons was convicted of burglary and unauthorized use of a motor vehicle. In December, 1985, his probation was revoked, and he was sentenced to Oregon State Penitentiary (OSP) for five years. The Oregon Corrections Division Custody Review Committee approved his transfer to the South Fork Forest Camp in Tillamook County in February, 1986. On March 26, 1986, Department of Forestry employee Wright, who was responsible for supervising Simmons and others on an inmate crew, drove the men to a work site approximately 25 miles from the forest camp. When they arrived, most of the crew climbed out of the van and began to assemble their gear. Wright left the van unlocked with the key in the ignition. He directed the men to different areas and instructed them where to begin planting trees. Simmons and several others remained by the van. Simmons climbed into the van, started the engine and slowly drove away. Wright did not pursue the vehicle. He reported the escape to officials at
Forestry, who contacted OSP, the Oregon State Police and the Tillamook County Sheriff's office.
Simmons drove to his mother's home near Tillamook, where he burglarized the house and stole firearms. Two days later, while attempting to steal their vehicle, he shot and killed plaintiff Buchler's daughter and shot and wounded plaintiff Seeling as they worked together in the woods near their home, approximately one mile from Simmons' mother's house.
Seeling and Buchler's father, as the personal representative of her estate, brought these actions to recover damages for wrongful death and negligence. They alleged that defendant
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