ROBERT KALMBACH, SR., individually v. James Hill

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT KALMBACH, SR., individually
and The Estate of May Kalmbach;
ROBERT KALMBACH, JR., individually;
GARY KALMBACH, individually;
KEVIN KALMBACH, individually and
The Estate of Amanda Kalmbach,
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.
No. 09-36055
D.C. No. 3:07-cv-00786-KI
MEMORANDUM*
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
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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

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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,

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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

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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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