                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 23 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ROBERT KALMBACH, SR., individually              No. 09-36055
and The Estate of May Kalmbach;
ROBERT KALMBACH, JR., individually;             D.C. No. 3:07-cv-00786-KI
GARY KALMBACH, individually;
KEVIN KALMBACH, individually and
The Estate of Amanda Kalmbach,                  MEMORANDUM*

             Plaintiffs - Appellants,

       v.

JAMES HILL; T. DRAZE, individually
and in her official capacity as a police
officer employed by the Oregon State
Police; OREGON STATE POLICE, a
political subdivision of the State of
Oregon,

             Defendants - Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                  Garr M. King, Senior District Judge, Presiding

                          Submitted November 4, 2010**
                                Portland, Oregon

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
        Judge.***

      Robert Kalmbach, the estates of May and Amanda Kalmbach, and other

members of the Kalmbach family (“the Kalmbachs”) appeal from the district

court’s grant of summary judgment in favor of the Oregon State Police (“OSP”) on

their claims of negligence and negligent supervision. The district court found that

the car accident caused by James Hill that killed May and Amanda Kalmbach was

not a foreseeable result of the OSP’s decision to allow Hill to continue driving

after a traffic stop for speeding in which the OSP learned that he had neither a valid

license nor proof of insurance. The district court further found that the OSP

officer’s decision not to impound Hill’s car was within the discretion afforded by

the relevant OSP policy and would not have been affected by additional training.

We affirm.

      The Kalmbachs argue that a fatal accident was a foreseeable result of the

decision not to impound Hill’s car, or at the very least that the question cannot be

decided as a matter of law and without a jury. See Donaca v. Curry County, 734

P.2d 1339, 1344 (Or. 1987). Oregon law does not, however, permit recovery on a



        ***
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.

                                          2
negligence theory when the intervening act of a third party was qualitatively

different from the potential hazards known to the defendant. See McPherson v.

Oregon ex rel. Dep’t of Corr., 152 P.3d 918, 925 (Or. Ct. App. 2007). The district

court did not err by concluding that “speeding, an expired license and lack of proof

of insurance are violations of the law that are qualitatively different” from the

accident that occurred, and that even “a failure to have insurance at all does not

indicate a propensity to commit moving violations.” Moreover, Hill had no prior

infractions reflecting reckless driving.

      The district court also properly concluded as a matter of law that the OSP

could not have foreseen the accident based on Hill’s mental instability. The only

record evidence is that Hill was “polite” during the stop. That Hill manifested

mental instability at other times of the day does not create an inference that he was

evidently unstable during the stop. Hill’s reckless driving was not foreseeable

based on what the OSP had reason to know.

      The Kalmbachs’ negligent supervision claim also required a foreseeable

risk. See Hoke v. May Dep’t Stores Co., 891 P.2d 686, 691-92 (Or. Ct. App. 1995).

In addition to failing that element, the Kalmbachs have not shown that the OSP’s

officer violated the relevant policy. The policy provides that “a police officer may

impound the vehicle of a person who the officer has probable cause to believe at,


                                           3
or just prior to, the time of the stop has committed one of the following offenses,”

which include “No Driver’s License (None Issued)” and “No Insurance.” OSP

Policies, Ch. 502.401(1), (2)(A)(iii), (2)(A)(iv) (emphasis added). Officers “shall

use discretion and good judgment in enforcement” of the impound policy. Id. And

the policy further directs that “[v]ehicles will normally not be impounded for the

following offenses,” which include “No Operator License (due to expiration or

possession)” and “violations solely for . . . Failure to Carry Insurance Card.” Id. at

(2)(B)(i), (2)(B)(iv). The Kalmbachs have not shown that this discretionary policy

has been made mandatory in practice, either by explicit direction or by routine

impoundment of cars in similar circumstances. Cf. Hoke, 891 P.2d at 691. The

district court correctly concluded that the OSP’s officer exercised reasonable

judgment in not impounding Hill’s car.

      Finally, the district court did not err by concluding that impoundment

remains discretionary under the policy even when there is more than one violation

that could justify impoundment. According to the text of the policy, Hill was

known to have committed at most one infraction normally warranting

impoundment – lack of insurance. To the extent his expired license factored into

the impoundment decision, there is nothing in the policy to suggest that the

decision became any less discretionary whatever the OSP officer’s knowledge


                                          4
about Hill’s insurance. The Kalmbachs suffered a tragic accident, but not one that

the OSP could have foreseen or that could have been prevented by additional

training of the OSP’s officers.

      AFFIRMED




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