KELTNER v. WASHINGTON COUNTY, 100 Or. App. 27 (1990)

784 P.2d 127

86C-12287; CA A50235Oregon Court of Appeals.Argued and submitted October 20, 1989
Affirmed December 28, 1989, Reconsideration denied March 2, 1989 Petition for review allowed March 27, 1990

Appeal from Circuit Court, Marion County.

Val D. Sloper, Judge.

Elden M. Rosenthal, Portland, argued the cause for appellants. With him on the briefs were B. Carlton Grew, and Rosenthal Greene, P.C., Portland.

I. Franklin Hunsaker, III, Portland, argued the cause for respondent Washington County. With him on the brief were Christopher A. Rycewicz, David A. Ernst, and Bullivant, Houser, Bailey, Pendergrass Hoffman, Portland.

Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent State of Oregon. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.

Page 28

ROSSMAN, J.

Affirmed.

Page 29

ROSSMAN, J.

The issue in this case is whether a child who was promised confidentiality by police agencies in exchange for her giving information leading to the arrest of a murder suspect may seek emotional damages for the disclosure of her name to that suspect. The trial court found that she cannot and dismissed her action, and she appeals.[1] We affirm.

We state the facts as plaintiffs allege them. Keri Keltner, age 14, learned the identity of the murderer of Wendy Harris, age 9, and the location of the murder weapon. After reaching an agreement of confidentiality over the telephone with an Oregon State Trooper, Keri reported what she had learned. Her report was shared with the Washington County Sheriff, who arrested Eric Merrill and located the body of Harris and the murder weapon.[2] Shortly thereafter, officers from Washington County, in the course of investigating the murder, interviewed Keri. They also agreed that, if Keri would provide information regarding the murder, her name would be kept confidential. Nonetheless, the police later disclosed to Merrill that Keri had provided information leading to his arrest.

After the disclosure, Keri and her mother began this action in which they sought emotional damages from the police agencies on the theory of breach of an agreement of confidentiality. The trial court granted defendants’ ORCP 21A(8) motion to dismiss for failure to state facts upon which a claim for relief could be granted. The court based its ruling on our opinion i Humphers v. First Interstate Bank, 68 Or. App. 573, 684 P.2d 581
(1984), aff’d in part and rev’d in part on other grounds 298 Or. 706, 696 P.2d 527 (1985), in which we held that a party may not recover emotional damages on a claim of breach of contract.

Plaintiffs argue that emotional distress damages are

Page 30

recoverable when they were within the contemplation of the contracting parties. They rely on Restatement (Second) Contracts, § 353 (1981),[3] and on a dictum in Humphers v. First Interstate Bank, supra, 298 Or at 710, where the Supreme Court said: “[P]erhaps there is no barrier [to recovery of emotional distress damages] when emotional security is the very object of the promised confidentiality.”

Although the facts are compelling and numerous jurisdictions have cited the general rule of the Restatement with approval,[4]
we are bound by the holding of Farris v. U.S. Fid. and Guar. Co., 284 Or. 453, 587 P.2d 1015 (1978), that emotional distress damages are not recoverable in a contract action. As we recently said i Doe v. Portland Health Centers, Inc., 99 Or. App. 423, 428 n 3, 782 P.2d 446 (1989), we do not view the dictum in Humphers as overriding the court’s determination in Farris.

Affirmed.

Page 31