Greg Wilberger v. Creative Building Maintenance

FILED
NOT FOR PUBLICATION MAY 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREG WILBERGER, as personal No. 09-35665
representative of the Estate of Brooke
Wilberger, decedent, D.C. No. 6:06-cv-00714-AA
Plaintiff - Appellant,
MEMORANDUM *
v.
CREATIVE BUILDING
MAINTENANCE, INC., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted May 7, 2010
Portland, Oregon
Before: KLEINFELD, BEA and IKUTA, Circuit Judges.
The district court properly applied a foreseeability analysis to Wilberger’s
negligence claim, as required by Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1326, 1336 (Or. 1987). Even assuming that Joel Courtney’s intervening criminal
act did not bar liability to Creative Building Maintenance (CBM) in all
circumstances, cf. Buchler v. State ex rel. Or. Corr. Div., 853 P.2d 798, 804–05
(Or. 1993), Wilberger’s claim fails under Oregon’s general foreseeability
principles, see Washa v. Or. Dep’t of Corr., 979 P.2d 273, 282 (Or. Ct. App. 1999).
It is undisputed that CBM had no relationship to the victim. There is no evidence
that CBM had any clients in Corvallis, where the abduction occurred, or that
Courtney was in Corvallis for any reason related to his employment with CBM.
Even if CBM should have been aware of Courtney’s twenty-year-old criminal
convictions, CBM could not have reasonably foreseen that, by hiring Courtney and
giving him access to a van, Courtney would encounter the victim in Corvallis and
engage in criminal conduct resulting in the victim’s death. See id. at 283. We
therefore uphold the district court’s determination that CBM is not liable for
negligence here. In light of our conclusion, we need not reach Wilberger’s claim
that the district court erred in making a credibility determination regarding Jose
Lomeli.
AFFIRMED.