Rhodes v. U.S. West Coast Taekwondo Ass'n

GARRETT, J. This is a negligence action brought on behalf of a six-year-old girl who was injured in a public swimming pool. Plaintiff, the child’s guardian ad litem, sued multiple defendants, including the Tigard-Tualatin Aquatic District, which operated the pool, and the Tigard-Tualatin School District, which was the previous operator of the pool until it transferred the operation to the aquatic district 50 days before the accident. The issues on appeal concern plaintiffs attempt to impose liability on the school district. The trial court granted the school district’s motion for summary judgment, concluding that plaintiff had failed to articulate a theory of negligence whereby it was reasonably foreseeable that the school district’s conduct as the pool operator would create a risk of injury after the pool operation was transferred to a new entity. On appeal, plaintiff assigns error to that ruling. Plaintiff also assigns error to the trial court’s denial of plaintiffs motion to amend her complaint following the grant of summary judgment. For the reasons that follow, we conclude that plaintiff’s complaint, construed in the light most favorable to plaintiff, adequately pleaded that the school district was negligent in its operation of the swimming pool up through the date of the transfer to the aquatic district, and that, under the circumstances of that transfer, it was reasonably foreseeable that the risks created by the school district’s negligence would remain for a period of time under the aquatic district’s management. We then conclude that the trial court erred in ruling — based, perhaps, on an overly narrow construction of plaintiffs allegations — that the risks of injury as a result of any negligence by the school district were unforeseeable as a matter of law because of the transfer of the pool operation to the aquatic district. We further reject the arguments made by the school district on appeal that the transfer of the pool operation to the aquatic district necessarily cut off the school district’s liability for its own negligence. Accordingly, we reverse the judgment and remand for further proceedings. BACKGROUND We begin with an overview of the summary judgment record, “viewing the facts and all reasonable inferences — 673 — that may be drawn from them in the light most favorable to plaintiff, as the nonmoving party.” Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322 (2004). On August 20, 2010, plaintiff brought her daughter, Victoria, to a summer program run by the U.S. West Coast Taekwondo Association (Taekwondo Association). Activities that afternoon included swimming at the pool located at Tigard High School. While the program participants were at the pool, Victoria was found motionless underwater. When medical workers arrived at the scene, Victoria did not have a pulse and was not breathing. She survived but suffered permanent injuries. On the date of injury, the pool was operated by the newly established aquatic district, which had acquired control of the pool 50 days earlier from the school district.1 Four employees were on duty, including three lifeguards. The aquatic district had leased the facility pursuant to a “Pool Facilities Lease and Operations Intergovernmental Agreement” (“lease” or “intergovernmental agreement”) from the school district. The lease provided that, as of July 1, 2010, the aquatic district was responsible for operating and maintaining the pool and for the pool’s employees. Its responsibilities included hiring and managing personnel to staff the pool, meeting facility inspection requirements, ensuring that lifeguards and other supervisory employees have required certifications, and employing a pool manager to supervise pool operations. The lease required the aquatic district to offer employment to any former pool employees of the school district. The pool’s aquatic director and the four employees who were on duty at the time of the incident had been previously employed by the school district. The lease also provided that the aquatic district “shall establish rules and regulations, including safety and sanitary standards, for use of the Facility, consistent with state regulations. These rules and regulations shall be — 674 — followed at all times by persons using the Facility, including [school district] employees and participants.” The aquatic district adopted its set of safety policies on August 11, 2010, 41 days after the lease became effective and nine days before Victoria’s accident. Plaintiff brought negligence claims against the Taekwondo Association and the aquatic district, alleging that they failed to keep a “proper look-out” over Victoria in the pool or failed to train staff to do so. Plaintiff later added the school district as a defendant, alleging that the school district failed to properly train its former staff (who became employees of the aquatic district) to keep a proper look-out in the pool. Following the school district’s ORCP 21 motion to make more definite and certain, plaintiff filed her second amended complaint, the operative pleading for purposes of this appeal. The second amended complaint alleged that the school district “operated the [pool] until July 2010, trained the persons who were staffers at the pool on the date of [the injury], and put in place certain procedures that remained in effect on the date of [the] incident.” In eight specifications of negligence, plaintiff alleged that the school district and aquatic district were negligent, “a. In failing to require lifeguards to use the pool’s elevated lifeguard chairs for patron surveillance; “b. In failing to set procedures for staff and visiting groups on what to do when a youthful patron cannot be seen or is missing; “c. In failing to create, establish and train staff on an emergency action plan to follow when a group uses the pool; “d. In failing to require immediate lifeguard intervention when a patron is submerged and motionless in the pool for more than 30 seconds; “e. In failing to create, establish and put into place procedures on how to use the sign in sheet or patron admission procedure to obtain an accurate patron count so lifeguards would know how many patrons were using the pool; “f. In failing to create and establish procedures to require lifeguards to conduct swim tests of group members — 675 — before they get into the pool, set and communicate procedures to group leaders, and set and enforce in-pool rules on where non-swimmers are allowed to go in the water so as to keep non-swimmers safe; “g. In failing to maintain current lifeguard certification for the facility’s aquatic director; “h. In failing to have a policy of actively prohibiting pool users from engaging in breath holding contests because of the dangers of hyperventilation and loss of consciousness.” As to the school district, paragraph 13 of the second amended complaint alleged as follows: “It was reasonably foreseeable that [the school district’s] actions * * * would create an unreasonable risk of harm to pool patrons like [Victoria] after the transfer of operation of the pool to [the aquatic district] because such deficiencies may not be identified and remedied in time to avoid the injury which occurred in this case.” The school district moved for summary judgment, arguing that it could not be held liable for Victoria’s injury as a matter of law, for two reasons. First, the school district characterized plaintiffs claim as alleging “employment-related negligence” and argued that it owed “no duty” as a matter of law because it no longer employed the persons who were alleged to have been negligent. Second, the school district argued that the injury to Victoria was not a foreseeable consequence of the school district’s alleged negligence because the alleged negligence by the aquatic district, the operator of the pool at the time, was a superseding cause of the injury. As an alternative basis for summary judgment, the school district argued that plaintiff had failed to give timely tort claim notice as required by ORS 30.275. In response to the motion, plaintiff argued that her negligence theory was not based on the school district’s status as a former employer; rather, it was that the school district “passed over this whole operation, including those dangerous defects” in policies and management, and that it was “reasonably foreseeable that an unsafe pool policy or procedure will persist for some period after the transfer of control from one pool operator to another.” — 676 — In its “Opinion on Summary Judgment” dated June 19, 2013, the trial court was not persuaded by either party in full. The court apparently rejected the school district’s first argument, which framed the issues in terms of “duty” or “no duty.” The court reasoned that, although the aquatic district owed a “special duty to plaintiff to make the premises reasonably safe” by virtue of its status as the pool operator, plaintiffs theory against the school district was not predicated on any particular status held, or duty owed, by the school district. Rather, the court viewed plaintiffs claim against the school district as implicating the basic foreseeability principle set out in Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987). As to that issue, the court did not adopt the school district’s view that the transfer of the pool operation to the aquatic district, in conjunction with the alleged negligence of the aquatic district, was a superseding cause that cut off the school district’s liability. Rather, the court determined that the injury to Victoria was simply not a reasonably foreseeable consequence of the school district’s negligent conduct as alleged by plaintiff. The court reasoned as follows: “The ‘conduct’ that plaintiff alleges is training and supervision of employees of the school district, and institution of procedures while the school district was controlling and operating the pool facility. “It requires no exhaustive analysis to find that no reasonable finder of fact could conclude that at the time of that conduct (that is, when the school district was itself running the pool facility), the school district could [] reasonably foresee that its practices in running the pool would result in bad habits by employees when they went on to work under a different employer and that these habits would threaten patrons of later employers, who would fail to take measures to protect people like [Victoria], a patron of that other pool operation. The fact that, as ultimately happened, it turned out that the new aquatic district hired all the staff, and it had no experience, and so carried on with previous policies, is all history unfolding after the conduct. Nothing in the allegations or the materials on summary judgment show that at the time of the conduct condemned as negligent, the school district should have acted in view of any such future developments. At the time of the conduct in — 677 — question, it could not reasonably be foreseen that supervision and training for employees for the school district and procedures for the school district’s pool would carry over to some future employer and operator of the pool, and result in harm. “If it were otherwise, then various juries would be allowed to make various decisions about the foreseeability that any employee, training in one job, would acquire bad habits ultimately harming a future patron of the next employer, or the employer three or four removes away. This is clearly beyond what can be held ‘reasonably’ foreseeable. “* * * Again, the facts alleged and shown do not support an inference that at the time of the conduct in adopting the procedures and continuing them, it could have been reasonably foreseeable that the subsequent operator would rely upon these procedures, and that a patron of that subsequent operator would have been injured as a result. “In argument, plaintiff asserted that the contracting parties as part of the hand-off of the pool operation contemplated that the rules and regulations of the school district would be adopted and carried on without interruption by the aquatic district. “If it were alleged and proven that the school district made a distinct recommendation of its set of rules and regulations to the aquatic district, knowing of the lack of experience and the reliance of the [latter] on the preexisting operation, it might well be that specific conduct — the conduct of supplying the rules and advising the aquatic district to follow them — could be conduct which would foreseeably threaten the safety of [Victoria] in the manner that occurred. I stress that liability on that basis is not now alleged.” (Underscoring in original.) After the court’s order on summary judgment, plaintiff moved to amend her complaint. Plaintiffs proposed amendment contained additional allegations regarding her theory that the school district had been negligent in its transfer of the pool operation to the aquatic district. The proposed amendment did not, however, include the allegation that the trial court had deemed necessary in its summary judgment — 678 — opinion, namely, that the school district had “recommended” that its policies and procedures be adopted by the aquatic district. At the hearing on plaintiffs motion, plaintiff conceded that there was no evidence of such a recommendation. The trial court denied plaintiffs motion, explaining that, “[i]fs either the same theory that was disposed of by summary judgment, in which case that’s not a reason to amend to allow [plaintiff] to restate it, or it’s a different theory. Either way, it’s just too late to try to incorporate into a case that’s required two and a half years to prepare and give the defense two weeks to work on it.” DISCUSSION A party is entitled to summary judgment if it can show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. ORCP 47 C. In an appeal from a trial court’s grant of summary judgment, we view “the facts and all reasonable inferences that may be drawn from those facts in the light most favorable to the nonmoving party.” Schmidt v. Mt. Angel Abbey, 347 Or 389, 392, 223 P3d 399 (2009). At issue on appeal is plaintiffs claim against the school district for common-law negligence. Under Oregon law, “unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari, 303 Or at 17. Even where a status or a special relationship is implicated that creates a basis for the defendant’s duty, “the scope of that [particular] duty may be defined or limited by common-law principles such as foreseeability.” Oregon Steel Mills, 336 Or at 342. Since Fazzolari, Oregon courts have “discussed a defendant’s liability for harm that the defendant’s conduct causes another in terms of the concept of ‘reasonable foreseeability,’ rather than the more traditional ‘duty of care.’” Id. at 340. However, “[e]ither formulation — duty or foreseeability — is a method of describing how the law limits the circumstances or conditions under which one member of society may expect another — 679 — to pay for a harm suffered.” Buchler v. Oregon Corrections Div., 316 Or 499, 509, 853 P2d 798 (1993). “Foreseeability ordinarily presents questions of fact; however, where no reasonable juror could find that the kind of harm that befell the plaintiff was the foreseeable result of the defendant’s negligent act, the harm is unforeseeable as a matter of law.” Lasley v. Combined Transport, Inc., 234 Or App 11, 16, 227 P3d 1200 (2010), aff'd, 351 Or 1, 261 P3d 1215 (2011) (citing Buchler, 316 Or at 509). On appeal, plaintiff argues that the trial court erred in several respects. First, plaintiff argues that the court appeared to misconstrue plaintiffs allegations as to when the school district was negligent. Plaintiff cites some language in the trial court’s summary judgment opinion, and comments made by the court at the hearing, that suggest that the court understood plaintiff to be alleging negligence in the adoption and implementation of certain policies and procedures years before the transfer to the aquatic district, rather than negligence in the operation of the pool up through the date of transfer. That misconception, plaintiff argues, affected the court’s assessment of whether it was foreseeable that the school district’s negligence would create a risk of injury to swimmers after the operation was transferred to the aquatic district. Second, plaintiff argues that, to the extent that the trial court correctly understood plaintiffs theory of when and how the negligent conduct occurred, the court simply erred in concluding that Victoria’s injury was, as a matter of law, not a reasonably foreseeable consequence of that negligence. Plaintiffs argument is straightforward: The school district handed over to the aquatic district a “turnkey” swimming pool operation with defective policies and procedures and inadequately trained employees; under those circumstances, it was foreseeable that the risks created by the school district’s negligence would continue to exist for a period of time under the new management. Plaintiff points out that, among other things, the aquatic district was a new entity created by the voters, it had no prior experience operating a swimming pool, the intergovernmental agreement between the school district and the aquatic district — 680 — contemplated a “transition year” after the effective date of the transfer, and the agreement required the aquatic district to offer jobs to the pool employees of the school district. Plaintiff argues that the trial court erred in reasoning that, notwithstanding those circumstances, the school district could not have foreseen any post-transfer risks resulting from its pre-transfer conduct unless it had “recommended” that the aquatic district adopt the school district’s own policies and procedures. Third, plaintiff argues that, if the trial court correctly concluded that the allegations and evidence at summary judgment were insufficient as a matter of law to allow for the imposition of liability on the school district, then the court erred in denying plaintiffs motion for leave to amend the complaint. The school district, in response, argues that the trial court correctly construed plaintiffs second amended complaint and that that complaint did not allege negligence in the “transfer” of the pool operation. Rather, the school district contends, the pleading’s eight specifications of negligence all relate to the adoption and implementation of policies and training of employees at some time before the transfer. The complaint alleges, in a subsequent paragraph, that it was foreseeable that those previous acts of negligence would create an unreasonable risk of injury after the transfer — but that allegation pertains to foreseeability, that is, as the school district sees it, plaintiff does not allege negligent conduct in the transfer itself. The school district next argues that the trial court correctly granted summary judgment based on its interpretation of the second amended complaint. In other words, the court correctly understood plaintiff to be alleging negligent conduct at a time before the transfer and correctly reasoned that it was not “reasonably foreseeable that the adoption of rules and [] training of employees would harm business invitees of some future operator of the pool.” The school district next argues that, even if the trial court erred in its construction of the second amended complaint — that is, even if plaintiff should properly be understood to have alleged a theory of negligence in the transfer of — 681 — an unsafe pool operation — the grant of summary judgment should still be affirmed because the school district cannot, as a matter of law, be liable for an injury that occurred after the transfer. The school district’s bases for that argument will be discussed in detail later in this opinion.2 The issues in this case, as framed by the parties at summary judgment and decided by the trial court, require us to address several distinct questions. We begin, however, by emphasizing what is not at issue on appeal. Neither the school district’s motion for summary judgment, nor the trial court’s opinion granting that motion, took issue with the factual allegations in plaintiffs complaint. That is, the school district did not argue that plaintiff had failed to produce evidence sufficient to create a genuine issue of material fact as to the truth of those allegations. The issues at summary judgment, therefore, had nothing to do with whether the school district’s policies and procedures, or its training and supervision of employees, were actually deficient at the time that the school district was in control of the swimming pool. The issues at summary judgment related solely to the legal effect of the transfer of the pool operation to the aquatic district. The school district argued, in essence, that, even assuming that the school district acted negligently as the pool operator, that is legally irrelevant because the transfer cut off the school district’s liability for future injuries as a matter of law. In short, the issues before us on appeal are narrow. The first question is whether plaintiff adequately alleged that the injury to Victoria was a reasonably foreseeable consequence of the school district’s conduct, including its conduct in connection with the transfer of the pool operation. The second question is whether, assuming that plaintiff adequately alleged that the school district’s conduct created a foreseeable risk of the kind of harm that befell Victoria, the school district nonetheless cannot be held liable for the injury as a matter of law because of the transfer to the aquatic district. — 682 — The trial court’s opinion is somewhat unclear as to how it construed the second amended complaint. Plaintiff argues that the court interpreted the complaint too narrowly by characterizing plaintiff as focusing on the “adoption” and “institution” of defective policies, and the “training” of employees, well before the transfer. Some language in the trial court’s opinion does suggest that the court understood plaintiff to be alleging negligence in the acts of adopting procedures and training employees. Other language, however, suggests that the court understood that plaintiffs theory of negligent conduct was more temporally fluid. For example, the court referred to “the time of that conduct (that is, when the school district was itself running the pool facility)”; the court also questioned whether “the school district could [] reasonably foresee that its practices in running the pool would result in bad habits by employees.” (Emphases added; underscoring omitted.) The court also described plaintiffs allegations as implicating the school district’s “conduct in adopting the procedures and continuing them.” (Emphasis added.) In light of those references, we believe that the trial court interpreted the second amended complaint to allege negligent conduct over a period of time in the operation of the pool, not merely in the adoption of rules or procedures or the hiring and training of employees at discrete moments in the past. Moreover, we agree with that interpretation. Although there is some imprecision in the allegations, when they are construed in the light most favorable to plaintiff, the express reference in paragraph 13 of the complaint to “after the transfer” is sufficient to show that plaintiff alleged that the school district acted negligently in running a defective swimming pool operation up through the date of transfer to the aquatic district. In our view, the complaint’s theory of negligence can be read to encompass the failure to remedy such defects before transferring the operation to a new owner that was likely to continue the operation in its existing state, at least for a time. The trial court appears to have determined that, although plaintiff was attempting to allege negligence associated with the transfer to the aquatic district, that effort — 683 — failed because, as a matter of law, the school district could not have foreseen, at the time of its own negligent conduct, that that conduct would pose an unreasonable risk of injury once the pool was under new management. Of paramount importance to the trial court was that the aquatic district, under the lease, was to adopt its own policies and procedures, and that plaintiff did not allege that the school district had “recommended” that any of the old policies and procedures be carried forward. The school district makes that same argument on appeal. We respectfully disagree with that analysis. If one construes the second amended complaint, as we do and as it appears that the trial court did, to allege that the school district’s negligent conduct included the transfer of an unsafe swimming pool operation, it is not apparent why it should matter whether the school district specifically recommended that its policies and procedures be adopted by the new management. The relevant question, in our view, is whether it was reasonably foreseeable that the aquatic district would carry on those policies and procedures. The summary judgment record contains sufficient evidence to create a genuine issue of fact on that question. The mere fact that, under the intergovernmental agreement, the aquatic district was to adopt its own policies at an unspecified time does not foreclose the likelihood that the aquatic district would, for at least some time after the transfer, rely heavily on the policies, procedures, and employees that it inherited from the school district. In short, we disagree with the trial court’s view that “it could not reasonably be foreseen that supervision and training for employees for the school district and procedures for the school district’s pool would carry over to some future employer and operator of the pool.” As we understand it, the court’s view was based not on the factual circumstances of the transfer so much as a concern, expressed in the next paragraph of the court’s opinion, that, “ [i]f it were otherwise, then various juries would be allowed to make various decisions about the foreseeability that any employee, training in one job, would acquire bad habits ultimately harming a future patron of the next employer, or the employer three or — 684 — four removes away.” Although we acknowledge the validity of the court’s concern in the abstract, we do not believe that it is implicated by the allegations and evidence in this case. This is not a situation where a plaintiff alleges merely that a former employer is liable for a poorly trained employee’s actions under a subsequent employer. Plaintiffs theory is that, under the particular circumstances of this transfer of the pool operation, in which the school district and the aquatic district collaborated closely to hand over the operation (to the point that the aquatic district was required to offer employment to the employees of the school district), it was foreseeable that the risks of injury created by the school district’s negligence would persist after the transfer. Whether that is true is a question for the jury. The school district contends that to allow plaintiff to reach the jury with this theory of liability amounts to an “extension” of Fazzolari. But the authorities on which the school district relies are not on point. For example, the school district argues that the Supreme Court’s decision in Boothby v. D.R. Johnson Lumber Co., 341 Or 35, 137 P3d 699 (2006), precludes plaintiffs theory. In Boothby, the defendant owned the timber rights to a piece of land and hired a contractor, Intermountain, to harvest the timber. Intermountain employed the plaintiffs husband, who died in a logging accident on the property. The plaintiff brought claims against the defendant for, among other things, common-law negligence. The defendant argued that it was not liable as a matter of law because of Intermountain’s status as an independent contractor. The Supreme Court agreed, reasoning that, under Fazzolari, the defendant’s potential liability was defined and limited by Intermountain’s status as an independent contractor. Id. at 45-46. The court first noted the general rule that “a person who hires an independent contractor is not liable to the contractor’s employees for injuries that they sustain while performing contracted work.” Id. at 46. The court then explained that an exception to that general rule exists: “[I]n certain circumstances, a person who provides an unsafe work site may be liable to an employee of an independent contractor for injuries that the employee sustains on the work site.” Id. at 47 (citing Yowell v. General Tire & Rubber, 260 Or 319, 490 P2d 145 (1971)). — 685 — The defendant in Boothby provided the land, but there was no evidence that “any defect in that tract led to the accident.” Id. Thus, the court determined that there was no reason to apply the Yowell exception; rather, the court applied the general rule that “Intermountain’s status as an independent contractor limited [the defendant’s] liability in negligence to Intermountain’s employees.” Id. The school district’s view that Boothby controls this case is based on its contention that plaintiffs claim, as in Boothby, implicates a particular status. In Boothby, it was Intermountain’s status as an independent contractor; the Supreme Court held that, under settled principles, that status defined and limited the defendant’s duties to Intermountain’s employees. Here, the school district argues, plaintiffs claim implicates the school district’s status as the former employer of individuals who are asserted to have acted negligently, and, under settled principles, the school district’s duties arising out of that status terminated when the employment relationship ended. The flaw in the school district’s argument (as the trial court appeared to recognize) is that plaintiffs theory of liability on the part of the school district does not rest on a status relationship. Plaintiff does not argue that the school district has respondeat superior liability for the negligence of others. Plaintiff argues that the school district acted negligently in its own right by, among other things, implementing defective policies and procedures and running a dangerous pool operation through the date of transfer to the aquatic district. Accordingly, Boothby is inapposite. See Bailey v. Lewis Farm, Inc., 343 Or 276, 284 n 4, 171 P3d 336 (2007) (explaining that, where the plaintiffs theory of negligence was based on the defendant’s own conduct at the time that the defendant was in control of a tractor-trailer that later caused injury, “Boothby"s reasoning does not advance [the] defendant’s argument”). The school district also argues that it is shielded from liability under the rule stated in the Restatement (Second) of Torts § 452(2) (1965). That rule provides as follows: “(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened — 686 — by the actor’s negligent conduct is not a superseding cause of such harm. “(2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to the third person, the failure of the third person to prevent such harm is a superseding cause.” Comment d to subsection 452(2) explains as follows: “Subsection (2) covers the exceptional cases in which, because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which follows from the operation of his own negligence. The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person.” The school district argues that this is the type of “exceptional case” contemplated by subsection 452(2) and comment d, principally because all responsibilities for the pool were transferred to the aquatic district by express intergovernmental agreement pursuant to a voter-approved ballot measure. We disagree. As a preliminary matter, whether subsection 452(2) reflects the law in Oregon is an open question. See, e.g., Bailey, 343 Or at 286 (“We need not decide whether [cases applying the rationale of subsection 452(2)] are consistent with,Oregon negligence law; that is, we need not decide whether those factors, or some combination of them, would be sufficient to permit a court to say, as a matter of law, that defendant is completely excused from the consequences of its prior negligence.”). Even assuming, however, that Oregon negligence law incorporates the notion of the “exceptional case” contemplated by subsection 452(2), this is not an exceptional case where we could conclude, as a matter of law, that the school district is relieved of liability for its past conduct. That conclusion is informed by additional Restatement comments and illustrations that accompany subsection 452(2). For example, comment e cautions that, although there may — 687 — be circumstances in which “responsibility may be shifted [] by express agreement,” “[i]n many cases this is not possible, since there are duties and obligations which cannot be delegated or shifted to another; and where the personal safety of third persons is threatened, it is probably true that normally any duty to exercise reasonable care for their protection cannot be shifted.” Two illustrations to the subsection are also illuminating: “7. A leases a building to B for use as a motion picture theatre, to which the public will be admitted. The building is at the time in a defective and dangerous condition. The lease expressly provides that B will repair it and put it into safe condition for the admission of the public, and that the public will not be admitted until this has been done. B fails to make the necessary repairs, and opens the theatre without making it safe. C, a member of the public entering the theatre, is injured by the collapse of a defective stairway. A is not liable to C. “8. The same facts as in Illustration 7, except that the lease provides only that B will make the necessary repairs, without any provision that the public will be excluded until this is done. The full responsibility is not shifted to B, and A is not relieved of liability to C.” Finally, comment f notes that, even without an express agreement, “the circumstances may be such that the court will find that all duty and responsibility for the prevention of the harm has passed to the third person.” The comment notes that whether that is so will depend on “[v]arious factors,” including “the degree of danger and the magnitude of the risk of harm, the character and position of the third person who is to take the responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, his relation to the plaintiff or to the defendant, the lapse of time, and perhaps other considerations.” Several features of the transfer of the swimming pool operation from the school district to the aquatic district, in our view, preclude the school district’s argument — 688 — that this is an “exceptional case” as a matter of law. First, although the school district alludes to the intent of “the voters” that the school district be “relieved” of its obligations to others, the school district does not explain how that intent, even if expressed, could operate to relieve the school district of its liability to plaintiff. In any event, the record does not indicate that an intention to absolve the school district from the consequences of its past conduct was made express in either the ballot measure or the intergovernmental agreement that effected the transfer. Second, the transfer in this case was fundamentally different from the one described in Illustration 7 to subsection 452(2). That illustration would shield “A” from liability where the dangerous condition of the movie theater was within the express contemplation of the parties and “B” was contractually required to make the theater safe before admitting the public. The record before us does not indicate that the aquatic district was ever made aware of any dangerous defects in the swimming pool operation, much less that it was required to remedy such defects before allowing swimmers to enter. This case is, if anything, more like Illustration 8, where A is not relieved of liability (but it falls short of even that illustration, as the aquatic district was not contractually required to remedy any defects in the pool operation). Finally, the various “factors” mentioned in subsection 452 and the accompanying comments — that is, the factors that might, under certain circumstances, “permit a court to say, as a matter of law, that defendant is completely excused from the consequences of its prior negligence,” Bailey, 343 Or at 286 — do not counsel in the school district’s favor. The risk of serious injury attributable to a negligently operated public swimming pool is obvious, and the nature of the transfer would permit a jury to conclude both that the aquatic district was unaware of any existing danger and that it would carry on the operation in its existing state, at least for a time. Prominent among the “exceptional case” factors is the “lapse of time,” which is mentioned in the text of subsection 452(2) itself as well as in the comments. The injury in this case occurred just a few weeks after the transfer, under circumstances that, a jury could conclude, made it foreseeable that the same risks that existed the day before — 689 — the transfer would continue to exist: The aquatic district was new and inexperienced, and it inherited the school district’s pool employees by express agreement. For the foregoing reasons, we conclude that the trial court erred in granting the school district’s motion for summary judgment.3 Reversed and remanded. Footnotes [1] The aquatic district was created as a result of voters’ approval of Ballot Measure 34-176. The purpose of the measure was to keep the pool open for public use, because the school district had announced that it planned to permanently close the pool facility in July 2010. [2] As noted, the school district also argued to the trial court that plaintiffs claim should be dismissed for failure to comply with the tort claim notice requirements under ORS 30.275. The school district renews that argument on appeal as an alternative basis for affirmance. We reject that argument without published discussion. [3] The dissent relies on a line of cases beginning with Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993). Those cases all address whether a defendant may be held liable in negligence for the harm caused by a third party’s criminal conduct. As we recently observed, in those cases, courts have “struggled with how to formulate the foreseeability element of the claim and, in particular, with how to characterize the ‘risk of harm’ that must be foreseeable.” Piazza v. Kellim, 271 Or App 490, 503, 354 P3d 698 (2015). Although it is difficult to discern “bright line rules,” McPherson v. Oregon Dept. of Corrections, 210 Or App 602, 617, 152 P3d 918 (2007), we have held, at a minimum, that the general proposition that “criminals may commit crimes” that cause harm is an insufficient predicate for a defendant’s liability. Buchler, 316 Or at 511-12 (“[I]n our society it is foreseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”). In subsequent cases, we have considered what level of specificity is required for a plaintiff to sufficiently allege that a particular risk of harm from criminal conduct was foreseeable to the defendant; that endeavor has proved elusive. See, e.g., McPherson, 210 Or App at 614-15 (observing that “the cases from the Oregon appellate courts are not altogether consistent with respect to the degree of similarity that must exist, in order for harm to a plaintiff to be considered ‘foreseeable,’ between that harm and earlier occurring harms or events of which the defendant is (or should be) aware”). Again, those cases all concern the particular context of a defendant’s liability for the “intervening intentional criminality of another person.” Buchler, 316 Or at 511. Although the dissent is correct that a heightened foreseeability analysis applies in those cases, this is not such a case. Tellingly, although the school district made a brief reference to Buchler in its arguments to the trial court, the school district on appeal does not rely on Buchler or other cases involving third-party criminal conduct. In our view, because this case does not involve any allegation of intervening criminal conduct by a third party, the ordinary foreseeability analysis applies; Buckler is inapposite.