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March 18, 2026 Get Citation Alerts Download PDF Add Note

Worden v. Miller

Court of Appeals of Oregon

• Citations: 347 Or. App. 796
• Docket Number: A181518
• Judges: O'Connor

• Disposition: Affirmed.

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (110K)

• PDF

Disposition

Affirmed.

Combined Opinion

796 March 18, 2026 No. 203

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Alma WORDEN,
in her capacity as Personal Representative of the
Estate of Cody Worden,
Plaintiff-Appellant,
v.
Ivan MILLER,
Defendant,
and
Eilene MILLER,
Defendant-Respondent.
Lake County Circuit Court
21CV08851; A181518

David M. Vandenberg, Judge.
Argued and submitted November 19, 2025.
Kathryn H. Clarke argued the cause and filed the briefs
for appellant.
Erika Wilson argued the cause for respondent. Also on
the brief was Janet M. Schroer and Hart Wagner LLP.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Affirmed.
Cite as 347 Or App 796 (2026) 797
798 Worden v. Miller

O’CONNOR, J.
In 2018, defendant’s 13-year-old son, Z, accidentally
shot and killed his friend, C, who was also 13. Plaintiff, C’s
mother, in her capacity as the personal representative of C’s
estate, filed this negligence action for wrongful death against
defendant and defendant’s ex-husband, Z’s father.1 The trial
court granted summary judgment to defendant and entered
a limited judgment dismissing the action as to her.
Plaintiff appeals and raises one assignment of error,
contending that the trial court erred when it granted sum-
mary judgment to defendant. Plaintiff argues that the trial
court erroneously concluded that the risk of harm resulting
from defendant’s son’s unsupervised access to firearms and
ammunition was not foreseeable to defendant as a matter of
law. Foreseeability is a jury question, except in rare cases
where no reasonable jury could find the risk of harm fore-
seeable from the defendant’s conduct. This is one of those
rare cases, as we explain below. We thus conclude that trial
court did not err, and we affirm.
STANDARD OF REVIEW
ORCP 47 governs summary judgment. When a trial
court grants summary judgment, we “view the facts and all
reasonable inferences that may be drawn from them in favor
of the nonmoving party.” Robinson v. Lamb’s Wilsonville
Thriftway, 332 Or 453, 455, 31 P3d 421 (2001). We review
“for errors of law and will affirm if there are no genuine dis-
putes about any material fact and the moving party is enti-
tled to judgment as a matter of law.” Beneficial Oregon, Inc.
v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021) (internal
quotation marks omitted); see also ORCP 47 C (“The court
shall grant the motion if the pleadings, depositions, affida-
vits, declarations, and admissions on file show that there is
no genuine dispute as to any material fact and that the mov-
ing party is entitled to prevail as a matter of law.”). There is
no genuine dispute of material fact “if, based on the record
before the court viewed in a manner most favorable to the
1
The trial court entered an order of default against defendant’s ex-husband.
He has not made an appearance on appeal. We thus refer to Z’s mother as defen-
dant in this opinion and we refer to codefendant, defendant’s ex-husband, based
on his relationship to defendant and Z.
Cite as 347 Or App 796 (2026) 799

adverse party, no objectively reasonable juror could return
a verdict for the adverse party on the matter that is the
subject of the motion for summary judgment.” ORCP 47 C;
see also Beneficial Oregon, Inc., 313 Or App at 277 (explain-
ing that “the question is whether the evidence is such that
all objectively reasonable factfinders would have to find in
plaintiff’s favor”).
FACTS
We summarize the facts consistent with our stan-
dard of review under ORCP 47 C. On June 7, 2018, C visited
the house of his friend, Z. Z picked up a .30-30 caliber rifle
from the primary bedroom closet. The rifle was loaded. As
C entered the bedroom, Z accidentally fired the rifle. The
bullet struck and killed C.
Plaintiff initiated this wrongful death action
against defendant and her ex-husband. Plaintiff alleged the
following in her complaint. (As we explain below, plaintiff’s
theory of foreseeability evolved from the complaint to sum-
mary judgment.) Defendant and her ex-husband both lived
in the house at the time of the shooting. They are both Z’s
parents, caregivers, and legal guardians. Defendant and
her ex-husband possessed many firearms that were “loaded,
unsecured, and accessible to children in various rooms” in
the house. C visited the house on June 6, 2018, and Z and
C practiced target shooting with firearms with defendant’s
ex-husband. C’s parents did not know about the target
shooting. On June 7, 2018, C and another friend visited Z
at the house. Z asked defendant’s ex-husband “if they could
go shooting again.” He said they could only shoot bows. The
children went into a bedroom where firearms were laying in
a pile near the closet. Z picked up “a loaded Marlin .30-30
lever action rifle,” and shot and killed C.
Based on those factual allegations, plaintiff speci-
fied several theories of negligent conduct by defendant and
her ex-husband:
“a. In causing or allowing loaded firearms to lay easily
accessible to young boys in the house;
“b. In failing to discover the loaded firearms on the
floor in a bedroom where young boys had access to them;
800 Worden v. Miller

“c. In failing to lock, secure, or unload the firearms on
the floor where the boys had access to them;
“d. In failing to supervise 14-year-old [Z] while he was
handling a loaded rile; and
“e. In failing to provide adequate firearms safety
training to [Z], such that he would know how to safely han-
dle the 30-30 lever action rifle.”2
Plaintiff asserted that “[t]he loaded and unsecured firearms
in the residence posed an unreasonable risk of harm to [C],
which defendants knew or should have known existed.” The
boys could not safely “encounter” the “loaded and unsecured
firearms” while unsupervised or recognize the danger of
loaded and unsecured firearms, because of their youth and
relative experience, plaintiff alleged. C suffered emotional
distress, imminent fear of death, loss of chance of surviving
his injury, and death as a result of defendants’ negligence,
plaintiff alleged.3
Defendant moved for summary judgment on fore-
seeability. Plaintiff responded. The parties presented the fol-
lowing facts to the trial court on summary judgment, which
we describe in the light most favorable to plaintiff, as the
nonmoving party. Robinson, 332 Or 455. In 2001, defendant
bought the house in which the shooting occurred. Also in
2001, defendant inherited approximately 20 firearms from
her father, including a .30-30 caliber rifle.4 Defendant stored
the firearms, unloaded, in the primary bedroom closet.
Defendant and her ex-husband divorced in 2003.
Defendant continued to live in the house with her ex-husband
and their children until 2010, when she moved out. She left
the firearms that she had inherited in the primary bedroom
2
Plaintiff alleged a negligent supervision claim in subsection (d). Plaintiff
struck that claim prior to the court’s ruling on summary judgment. Although
plaintiff alleged that Z was 14 years old at the time of the shooting, the evidence
established that Z was 13 at the time. Whether Z was 13 or 14 is immaterial to
the issues on appeal.
3
Plaintiff struck the loss of chance allegation prior to the court’s ruling on
summary judgment.
4
Plaintiff and defendant disputed in the trial court whether defendant owned
the .30-30 rifle that Z mistakenly fired and they continue to do so on appeal. The
record included evidence from which a jury could conclude that defendant owned
the gun. Thus, under our standard of review, we accept that defendant owned the
rifle with which Z accidentally killed C.
Cite as 347 Or App 796 (2026) 801

closet. Defendant allowed her ex-husband and children to
remain in the house rent-free. The children, including Z,
had access to the primary bedroom closet. At the time of the
shooting, Z often slept in the primary bedroom by himself.
Defendant’s ex-husband kept a loaded revolver near
his recliner armchair in the living room and stored ammu-
nition in an “ammo can” inside of a dresser drawer. The
ammunition included .30-30 rounds. There is no evidence
that defendant knew of the loaded revolver or the ammo can.
Defendant visited the home after 2010, occasionally
staying the night. A year or two before the shooting, she
stopped going inside the house because it was cluttered and
disorganized. Defendant also instructed her ex-husband
that he and the children could not have visitors at the house.
Defendant knew that her ex-husband might nonetheless per-
mit visitors to the house. She had most recently entered the
house six months prior to the shooting. She had been on the
property, outside the house, one week prior to the shooting.
Defendant knew that Z was interested in hunting
and that her ex-husband liked to hunt. Four years prior to
the shooting, defendant had supervised Z and his older sis-
ter when they shot rifles on the property. Defendant also
knew that Z had taken online hunter safety courses.
About one year before the shooting, Z and defen-
dant’s ex-husband went elk hunting and took a .30-30 rifle.
When they returned, Z placed the .30-30 rifle, still loaded,
in the primary bedroom closet. Defendant knew that Z and
her ex-husband had gone elk hunting. But the record does
not contain evidence from which a juror could infer that
defendant knew that Z had placed a loaded rifle in the pri-
mary bedroom closet when he returned from hunting with
his father.
C and Z were friends. C visited Z at the house.
On the day before the shooting, C and Z had been target
shooting on the property while supervised by defendant’s
ex-husband. Defendant did not know of C’s visits.
As noted above, defendant moved for summary
judgment. In the motion, defendant noted that plaintiff had
802 Worden v. Miller

alleged a common law negligence theory. Defendant asserted
that plaintiff could not establish general foreseeability as a
matter of law. Defendant quoted plaintiff’s complaint, sum-
marized above, in which plaintiff alleged that “loaded and
unsecured firearms” in the house “posed an unreasonable
risk of harm to [C], which defendants knew or should have
known existed.” Defendant argued that plaintiff’s com-
plaint rested on the factually incorrect allegations that she
lived at the house and that she knew that the house con-
tained loaded and unsecured firearms. She argued, quoting
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d
1326 (1987), that the there is no evidence “that any conduct
by [defendant] ‘unreasonably created a foreseeable risk to a
protected interest of the kind of harm that befell’ [C] or from
which a trier of fact can conclude that [defendant’s] conduct
was unreasonable in light of that risk.”
Plaintiff responded that a jury could conclude from
the evidence that the shooting death of C was reasonably
foreseeable to defendant. Plaintiff shifted her theory of
foreseeability in response to the evidence before the court
on summary judgment. Instead of relying on a theory that
defendant lived at the house and knew of Z’s access to unse-
cured, loaded firearms, plaintiff relied on defendant’s own-
ership of the house; ownership of the rifle that Z fired to
kill C; ability to control the rifle and decision to leave it and
other firearms unloaded in the primary bedroom closet;
legal custody over Z as Z’s parent; and knowledge that her
ex-husband could not be trusted to follow her instructions
not to have guests on the property. Plaintiff also relied on
defendant’s awareness that her kids lived in “squalor” in a
house that she owned, awareness that Z could access the
primary bedroom closet without supervision, and aware-
ness that Z had used firearms at the house previously. It
was foreseeable from those actions or omissions, plaintiff
argued, that Z would have unsupervised access to an unse-
cured, loaded firearm, and it was foreseeable that a guest
would be shot.
The parties filed additional briefing in which they
continued to dispute the application of general foreseeability
principles to the facts. Plaintiff did not argue that she had
Cite as 347 Or App 796 (2026) 803

placed before the court a theory that relied on defendant’s
special status or duties as Z’s mother or the landlord of the
house in which Z lived, and she did not cite any case law
that analyzes foreseeability under those heightened, spe-
cial-duty standards.
The trial court granted defendant’s motion for
summary judgment. The court concluded that “there is no
genuine issue of material fact” because “in this particular
case, * * * the mere ownership of real or personal property,
that one is not in possession or control of, does not create an
unreasonable and foreseeable risk of harm or a breach of the
duty of ‘reasonable care’ as to the negligence allegations in
this case.” The trial court entered a limited judgment dis-
missing plaintiff’s case. Plaintiff appeals from that limited
judgment.
On appeal, plaintiff argues that “[t]he trial court
erred in concluding that there was no genuine factual issue
in this case, and that as a matter of law the risk of harm
resulting from [p]laintiff’s son’s access to a loaded firearm
was not foreseeable.” Plaintiff argues that the trial court
mistakenly focused “solely” on defendant’s ownership of the
house and that the evidence, including defendant’s “status
as a parent with legal custody” of Z, was sufficient to sup-
port a jury finding that the risk that a child would have
unsupervised access to loaded firearms was foreseeable to
defendant. Plaintiff variously refers to the foreseeable risk
of harm as the risks of Z’s access to a “loaded firearm,” Z’s
unsupervised access to “firearms and ammunition,” or Z’s
“unsupervised access to firearms.” We understand plain-
tiff’s argument to be that the foreseeable risk of harm was
the risk of a child’s unsupervised access to either a loaded
firearm or firearm and ammunition because, under plain-
tiff’s theory, it is foreseeable that a child would accidentally
shoot themselves or another person in those circumstances.
ANALYSIS
A trial court may grant summary judgment only
on the grounds asserted by the moving party. Ricard v.
Klamath Falls Forest Estates HOA, 328 Or App 46, 56, 536
P3d 1013 (2023); see also Eklof v. Steward, 360 Or 717, 730-32,
804 Worden v. Miller

735-36, 385 P3d 1074 (2016) (explaining that the only issues
properly before a trial court on summary judgment are the
issues raised in the motion for summary judgment on which
the moving party contends they are entitled to prevail as
a matter of law). When the moving party asserts that it is
entitled to summary judgment on a particular ground, the
burden shifts to the nonmoving party to provide evidence
that creates a genuine dispute of material fact that, if found
in the nonmoving party’s favor, defeats the moving party’s
claim that it is entitled to judgment as a matter of law. Eklof,
360 Or at 729 (citing Two Two v. Fujitec America, Inc., 355
Or 319, 324, 325 P3d 707 (2014)).
Here, defendant moved for summary judgment on
the ground that “[p]laintiff’s wrongful death claim fails
under a general foreseeability theory.”5 A claim of common
law negligence in which the parties do not “invoke a status,
a relationship, or a particular standard of conduct that cre-
ates, defines or limits a defendant’s duty” requires a plain-
tiff to “plead and prove that the defendant’s conduct created
a foreseeable and unreasonable risk of legally cognizable
harm to the plaintiff and that the conduct in fact caused
that kind of harm to the plaintiff.” Chapman v. Mayfield, 358
Or 196, 205, 361 P3d 566 (2015) (internal quotation marks
omitted). Here, the only issue before the trial court on sum-
mary judgment was whether defendant was entitled to sum-
mary judgment on the foreseeability element of plaintiff’s
common-law negligence claim. That is thus the only issue
properly before us on appeal.
On appeal, plaintiff relies on case law in which a
defendant had a special status or relationship with the plain-
tiff to buttress her foreseeability argument. In particular, she
relies on defendant’s status as Z’s mother and the owner of
the house in which Z lived—essentially Z’s landlord—to sug-
gest that defendant owed a heightened duty to protect Z and
Z’s guests to the house from harm. Defendant argues that
plaintiff failed to preserve that argument. Plaintiff replies
that she preserved the argument by pointing out in her filings
5
As noted above, plaintiff had also pleaded a negligent supervision claim
and a loss of chance allegation. Defendant moved for summary judgment on that
claim and allegation and plaintiff struck the claim and the allegation in her reply
to defendant’s motion for summary judgment.
Cite as 347 Or App 796 (2026) 805

on summary judgment that defendant owned the house and
maintained control over it and that the parent-child relation-
ship gave defendant the authority to instruct and control Z.
That was insufficient to preserve an argument that
defendant owed a heightened duty to protect C—a visitor to
the property—from the type of harm he suffered. The par-
ties litigated foreseeability below as general foreseeability,
as we summarized above. Plaintiff did not cite any case law
about a special duty or suggest that the trial court should not
employ the general foreseeability analysis. The trial court
would be surprised to learn that plaintiff believes it should
have analyzed the case as a special-duty case. See State v.
Skotland, 372 Or 319, 329, 549 P3d 534 (2024) (explaining
that a touchstone of preservation is whether “the trial court
[would] be taken aback to find itself reversed on this issue,
for this reason” (emphasis in original)). Thus, we consider
the fact that defendant is Z’s mother and owned the house
as part of the general foreseeability analysis, as we explain
below, but not under a heightened special-duty standard.
The general rule is that foreseeability is a jury ques-
tion. A “jury is given wide leeway” to decide foreseeability.
Fazzolari, 303 Or at 17 -18 (citing Stewart v. Jefferson Plywood
Co., 255 Or 603, 607, 469 P2d 783 (1970)). Foreseeability
derives from “blameworthiness in some sense; the actor
being regarded as blameworthy if his conduct is, according
to community standards, generally considered as creating
a danger to persons in the situation in which the plaintiff
finds himself.” Stewart, 255 Or at 608. A jury asks “whether
a reasonable person considering the potential harms that
might result from [their] conduct would have reasonably
expected the injury to occur.” Chapman, 358 Or at 206
(internal quotation marks omitted). A court may keep the
question of foreseeability from a jury “only when it can say
that the actor’s conduct clearly meets the standard or clearly
falls below it.” Scott v. Kesselring, 370 Or 1, 10, 513 P3d 581
(2022) (internal quotation marks omitted). Cases in which
no reasonable factfinder could find the risk foreseeable
“ ‘are few and far between and should be identified ad hoc.’ ”
McPherson v. Oregon Dept. of Corrections, 210 Or App 602,
806 Worden v. Miller

614, 152 P3d 918 (2007) (quoting Najjar v. Safeway, Inc., 203
Or App 486, 492, 125 P3d 807 (2005)).
A court may grant summary judgment on foresee-
ability in favor of a defendant when an injury arises from
a “concatenation of highly unusual circumstances” or “an
extended sequence of improbable chance occurrences,”
because that makes the “resulting harm unforeseeable as a
matter of law.” F. T. v. West Linn-Wilsonville School Dist., 318
Or App 692, 702, 509 P3d 655, rev den, 370 Or 471 (2022)
(internal quotation marks omitted); see also Fazzolari, 303
Or at 12 (explaining that foreseeability should be a jury
question except for conduct “at the outer margins”).
As the Supreme Court recognized in Fazzolari,
some risks of harm are unforeseeable as a matter of law,
even though such cases are rare. For example, in Buchler
v. Oregon Corrections Div., 316 Or 499, 516, 853 P2d 798
(1993), the Supreme Court affirmed a trial court order
granting summary judgment to the defendant on foresee-
ability. An adult in custody (AIC) serving a sentence on a
felony conviction escaped from a road crew by stealing a
transport van using keys left in the van by the crew supervi-
sor. Id. at 502. The AIC drove 50 miles and stole a gun from
his mother’s residence and two days after his escape, shot
two people, killing one, near his mother’s residence. Id. The
record lacked evidence that the defendant—the corrections
division—knew that the AIC “had previously caused bodily
harm to anyone[.]” Id. The Supreme Court held that the
harm to the plaintiffs was not foreseeable from the defen-
dant’s conduct of leaving the keys in the van. Id. at 514.
As another example, in F. T., we held that no rea-
sonable jury could find that a school district’s conduct cre-
ated a foreseeable risk that a teacher would sexually abuse
a high school student while the teacher was a guest at the
student’s relative’s house. 318 Or App at 705-06. There was
evidence that the district knew that the teacher improperly
drove alone with students off campus, that he had a drink-
ing problem, and that he had poor classroom performance.
But there was “no evidence that the district was aware of
any conduct, or any rumors of conduct, on the part of [the
Cite as 347 Or App 796 (2026) 807

teacher] to suggest that he posed a risk of sexual assault to
district students.” Id.
With that summary of the limits of foreseeability
in mind, we apply the law to the facts of this case. We begin
by identifying defendant’s acts or omissions that allegedly
made the type of harm suffered by C foreseeable. See Scott,
370 Or at 23 (explaining that “the starting point in the fore-
seeability inquiry * * * as Fazzolari instructs” is “the defen-
dant’s ‘conduct’ and the reasonableness of the foreseeable
risks that it created”). We focus on plaintiff’s evidence “of
the injury-producing factual circumstances in the context of
her theory of liability[.]” Piazza v. Kellim, 360 Or 58, 76, 377
P3d 492 (2016).
As described above, plaintiff alleged that defendant
was negligent for (1) causing or allowing loaded firearms to
lay easily accessible to young boys in the house; (2) failing
to discover the loaded firearms on the floor in a bedroom
where young boys had access to them; (3) failing to lock,
secure, or unload the firearms on the floor where the boys
had access to them; and (4) failing to provide adequate fire-
arms safety training to Z, such that he would know how to
safely handle the .30-30 lever action rifle. Plaintiff’s theory
evolved in response to the evidence produced in discovery
and deposition testimony, as summarized above, particu-
larly the uncontested evidence that defendant did not live at
the house, was not present at the time of the shooting, and
had left only unloaded firearms unsecured in the house. On
appeal, we understand plaintiff’s foreseeability argument to
flow from defendant’s act of leaving unloaded firearms in
the house where they were accessible to her children and
her failure to act to secure the unloaded firearms or other-
wise ensure that her children would not have unsupervised
access to loaded firearms. From those acts or omissions,
plaintiff argues, a jury could conclude that it was reason-
ably foreseeable to defendant that Z or another child would
have unsupervised access to a loaded firearm and would
injure someone in a shooting.
We conclude that it was not legally foreseeable from
the acts or omissions of defendant that a child would have
unsupervised access to a loaded firearm. Z failed to clear
808 Worden v. Miller

the rifle after a hunting trip with his father, defendant’s
ex-husband. The ex-husband lived at the house with Z, not
defendant. Z returned the loaded rifle to the primary bedroom
closet. Z later picked up the rifle believing it was not loaded
and, tragically, accidentally shot his friend, C. Looking for-
ward from defendant’s acts and omissions, those facts present
“an extended sequence of improbable chance occurrences.”
See F. T., 318 Or App at 702 (citing to McPherson, 210 Or App
at 618). A reasonable person in defendant’s position would
not have reasonably expected that allowing a child access to
unloaded firearms would result in an accidental shooting. An
unloaded firearm cannot, of course, be used to shoot someone.
Indeed, the evidence, even in the light most favor-
able to plaintiff, shows that prior to Z’s accidental shooting
of C, defendant knew of Z accessing loaded firearms only
under adult supervision. There is no evidence that permits
an inference that defendant should have known that her
ex-husband would not supervise the children while they
used loaded firearms. That significantly reduces the fore-
seeability of a child accessing a loaded firearm without adult
supervision. See F. T., 318 Or App at 706 (relying, in part,
on the absence of evidence that the defendant school district
“was aware of any conduct, or any rumors of conduct, on the
part of [the teacher] to suggest that he posed a risk of sexual
assault to district students”).
The evidence, viewed in the light most favorable to
the plaintiff, supports an inference that there was ammuni-
tion on the property and possibly in the house. The record
contains no evidence, however, that defendant was aware
that the children had unsupervised access to ammunition
prior to the accidental shooting. And defendant’s knowl-
edge about the house’s disorganized and cluttered condition
does not permit a reasonable inference that defendant knew
or should have known that the children would have unsu-
pervised access to ammunition. See Buchler, 316 Or at 514
(holding that “[a]s a matter of law, the harm that actually
occurred did not result from any risk of harm to others that
was unreasonably created by leaving the keys in the van”).
Plaintiff argues that the fact that defendant owned
the house and was Z’s parent placed a duty on defendant
Cite as 347 Or App 796 (2026) 809

to learn how firearms and ammunition were stored in the
house and whether the children had unsupervised access
to firearms and ammunition. Plaintiff also argues that
defendant had a duty to protect tenants and invitees from
reasonably foreseeable risks. Plaintiff points out that in
McPherson, 210 Or App at 617-18, we held that a jury could
find that a landlord should have foreseen the risk that a
person could force entry into a building in an apartment
complex and assault a tenant or invitee.
McPherson does not aid plaintiff. In McPherson, we
analyzed foreseeability using a heightened standard based
on the defendants’ status as the plaintiff’s landlord. Id.
at 609-12. Here, plaintiff has not preserved a theory that
requires a heightened standard, as we explained above.
Additionally, the evidence in McPherson permitted a jury to
find that the category of harm suffered by the plaintiffs was
foreseeable to the defendants. Id. at 617-18. In McPherson, an
AIC who had escaped custody assaulted tenants (the plain-
tiffs) in a laundry shed at an apartment complex owned by
the defendants. As we explained, based on the evidence in
that case, “a rational juror could find that [the] defendants
knew or should have known that their [apartment] complex
in general was attractive to criminals, that criminals fre-
quented the area, and that the laundry shed in particular
was ill-equipped to provide tenants with protection from
them.” Id. at 618. And the harm that befell the plaintiffs
was foreseeable: “a criminal observed a vulnerable target
and foreseeably took advantage of it.” Id. The record in this
case does not contain analogous evidence of foreseeability.
In sum, plaintiff argues that defendant’s conduct
created a reasonably foreseeable risk that a child would
have unsupervised access to a loaded firearm or unsuper-
vised access to a firearm and ammunition.6 In the light most
favorable to plaintiff, a jury could conclude that defendant’s
acts or omissions were that she owned the house in which
6
The parties have not presented us with a question about how to define the
risk of harm. See Piazza, 360 Or at 76 (recognizing, the “centrality—in deter-
mining whether a triable issue has been established with respect to foreseeabil-
ity—of the plaintiff’s description of the injury-producing factual circumstances
in the context of her theory of liability”). Thus, we assume, for the purposes of
this appeal, that plaintiff could prevail if the risk that a child would have unsu-
pervised access a loaded firearm was foreseeable.
810 Worden v. Miller

the shooting occurred, is Z’s mother, and when she moved
out of the house in 2010, she left behind the gun used in
the shooting, unloaded, where Z could access it. The record
lacks evidence from which a reasonable jury could infer
that defendant knew that Z had unsupervised access to a
loaded firearm or knew that Z had unsupervised access to a
firearm and ammunition. To the contrary, the uncontested
evidence is that defendant knew of Z using loaded firearms
only while under adult supervision. From those facts, it was
not foreseeable to defendant, as a matter of law, that Z would
have unsupervised access to a loaded gun. The tragic acci-
dent was, viewed from defendant’s acts and omissions, “an
extended sequence of improbable chance occurrences.” F. T.,
318 Or App at 702 (citing McPherson, 210 Or App at 618).
For the reasons explained above, the trial court did not err
when it granted defendant’s motion for summary judgment
based on its conclusion that there was no issue of material
fact and that plaintiff’s common-law negligence claim failed
as a matter of law on the foreseeability element.
Affirmed.