                                                                            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                            NOT FOR PUBLICATION                              MAY 18 2010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.
