FILED: June 10, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ALICE R. FOWLER, individually, and
ALICE R. FOWLER, Personal
Representative of the Estate of
Annalycia Cruz, a child,

Appellant,

v.

WILLIAM RUSSELL SPEAR,

Respondent.

(9504931CV; CA A96312)

Appeal from Circuit Court, Klamath County.

Roxanne Burgett Osborne, Judge.

Argued and submitted October 7, 1997.

Donald R. Crane argued the cause and filed the brief for appellant.

Michael L. Spencer argued the cause for respondent. With him on the brief was Spencer, Runnels, MacArthur & Porras, LLP.

Before De Muniz, Presiding Judge, and Haselton and Wollheim,* Judges.

PER CURIAM

Affirmed. Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 652 P2d

318 (1982).

Wollheim, J., concurring.

*Wollheim, J., vice Rossman, S.J.


DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Respondent

[ ] No costs allowed.
[xx] Costs allowed, payable by: Appellant
[ ] Costs allowed, to abide the outcome on remand, payable by:


WOLLHEIM, J., concurring.

An infant child, through her guardian ad litem, brought this negligence action against her babysitter to recover damages resulting from the loss of her mother's society, companionship, and services (loss of parental consortium). When the child was seven months old, she was entrusted to the custody and care of defendant. Defendant allegedly left the child unattended in his vehicle outside of a store. The child disappeared and has not been seen since. The trial court granted defendant's motion to dismiss the complaint for failing to allege sufficient facts to constitute a claim. I agree with the majority's holding affirming the trial court based on Norwest v. Intercommunity Hosp., 293 Or 543, 652 P2d 318 (1982). However, if I were writing on a clean slate, I would reverse on the reasoning set forth in Justice Lent's dissent in Norwest, 293 Or at 570-74.


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