264 P.3d 184 (Or.App. 2011), A142775, Towe v. Sacagawea, Inc.

Docket Nº:084951L2; A142775.
Citation:264 P.3d 184, 246 Or.App. 26
Opinion Judge:ORTEGA, P.J.
Party Name:Billie Charles TOWE, Plaintiff-Appellant, v. SACAGAWEA, INC., dba Re/Max Equity Group, Inc.; Re/Max International, Inc., and Rick J. Matthews, Defendants, and Rick J. Matthews and Sherry Matthews, dba Mountain View Rock; and Re/Max Ideal Properties, Inc., Defendants-Respondents.
Attorney:J. Randolph Pickett, Portland, argued the cause for appellant. With him on the briefs were R. Brendan Dummigan, Kristen West, and Pickett Dummigan LLP. Andrew Grade, Lake Oswego, argued the cause for respondents Rick J. Matthews and Sherry Matthews. With him on the brief was Fotouhi Epps Hillger ...
Judge Panel:Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore. SERCOMBE, J., dissenting.
Case Date:October 12, 2011
Court:Court of Appeals of Oregon
 
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264 P.3d 184 (Or.App. 2011)

246 Or.App. 26

Billie Charles TOWE, Plaintiff-Appellant,

v.

SACAGAWEA, INC., dba Re/Max Equity Group, Inc.; Re/Max International, Inc., and Rick J. Matthews, Defendants,

and

Rick J. Matthews and Sherry Matthews, dba Mountain View Rock; and Re/Max Ideal Properties, Inc., Defendants-Respondents.

084951L2; A142775.

Court of Appeals of Oregon.

October 12, 2011

Argued and Submitted Aug. 12, 2010.

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J. Randolph Pickett, Portland, argued the cause for appellant. With him on the briefs were R. Brendan Dummigan, Kristen West, and Pickett Dummigan LLP.

Andrew Grade, Lake Oswego, argued the cause for respondents Rick J. Matthews and Sherry Matthews. With him on the brief was Fotouhi Epps Hillger Gilroy PC.

David O. Wilson argued the cause and filed the brief for respondent Re/Max Ideal Properties, Inc.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.

ORTEGA, P.J.

[246 Or.App. 28] Plaintiff in this negligence case appeals after the trial court granted summary judgment in favor of defendants Rick Matthews and Sherry Matthews, dba Mountain View Rock (Mountain View), and Re/Max Ideal Properties (Re/Max). Plaintiff brought an action to recover for injuries he suffered after hitting a cable stretched across a private road (the access road) while riding his motorcycle. Plaintiff now challenges the trial court's conclusion that, as a matter of law, plaintiff was 100 percent responsible for his injuries. We affirm the trial court's award of summary judgment to both defendants, but on alternative grounds that were also presented below— namely, that (1) as a matter of law, plaintiff was a trespasser and Mountain View's conduct met the standard of care applicable to trespassers, and (2) Re/Max cannot be liable for plaintiff's injuries because its conduct was not the cause of those injuries as a matter of law.

When reviewing a trial court's grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party— in this case, plaintiff. Vaughn v. First Transit, Inc., 346 Or. 128, 132, 206 P.3d 181 (2009).

On a Sunday in November 2006, plaintiff and his girlfriend's son, Jerid, were out riding their motorcycles together on Indian Creek Road near plaintiff's home. Just after 4:00 p.m., while it was still daylight, the two turned off of Indian Creek Road and onto the access road. That road was partly graveled, but was paved on Mountain View's property,

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which began about half a mile off of Indian Creek Road. At the beginning of the access road, where it connected with Indian Creek Road, a large sign was posted, listing information for Mountain View and another landowner on the access road and indicating, in red lettering, " Private Road No Trespassing." Although plaintiff saw the sign and knew the access road to be private, he nevertheless proceeded up the road on his motorcycle. Mountain View's property contains a quarry and is the last property on the access road, past two other properties.

Approximately two years earlier, because of theft and vandalism at the quarry, Mountain View installed a [246 Or.App. 29] cable— suspended about three feet high between two posts— to block the access road at the entrance to Mountain View's property. Plaintiff, who had worked for Mountain View in December 2005 and January 2006, was aware that the first person to the quarry in the morning would open the cable using a key that was hidden under a rock nearby, and the last person to leave at the end of the work day would close the cable. In fact, plaintiff himself had opened or closed the cable at least twice during his employment there.

On the day in question, in addition to the " No Trespassing" sign, a Re/Max sign was posted at the intersection of Indian Creek Road and the access road. The sign contained a directional arrow pointing up the access road and had been placed in that location 10 months earlier by a Re/Max agent with whom one of the properties on the access road— " the Kinyon property" — had been listed for sale. The real estate agent also had placed a larger Re/Max sign on the Kinyon property itself, approximately 120 yards from the location where the cable stretched across the access road. When he initially toured the Kinyon property with the owner, the listing agent noticed the cable across the access road on Mountain View's land. He also saw it on later occasions when he visited the property. In spring of that year, plaintiff had driven up the access road with his girlfriend to look at the Kinyon property, which was still listed for sale with Re/Max at that time. Later, in the summer of that year, the listing was withdrawn and, as a result, the real estate agent removed the Re/Max sign from the Kinyon property. He failed, however, to remove the directional sign from the base of the access road.

On the weekend in question, as well as the previous weekend, plaintiff's girlfriend had told him that there were several properties for sale on the access road in addition to the Kinyon property that they had looked at in the spring. Plaintiff understood from those discussions that the properties must be on Mountain View's " private road somewhere[.]" Plaintiff's girlfriend had indicated that the additional properties would not sell because Mountain View would not " allow [an] easement on the road," and plaintiff thought that, because Mountain View had paved its part of the access road, it would not be willing " to allow anybody" on its road.

[246 Or.App. 30] Before following Jerid up the access road, plaintiff saw the Re/Max directional sign. He thought that he would look for the additional properties for sale up the access road. On the way up the road, plaintiff looked around for a sign to locate property for sale. There was no longer a sign on the Kinyon property and plaintiff did not see any other sign identifying property on the road that was for sale. He had never seen a Re/Max sign on Mountain View's property.

On that day, several ribbons of yellow caution tape as well as an orange cone hung from the cable. In addition, immediately after the accident at issue, an orange sign reading " POSTED No Trespassing" was found face up on the ground in the road near the cable.1 Although plaintiff previously had known about the cable, on that particular day he forgot about its possible presence across the access road.

Jerid saw the cable across the road and stopped his motorcycle about 100 yards away from it. Although he saw Jerid stop, plaintiff continued up the access road and accelerated slightly while passing Jerid. Plaintiff then turned and looked back at Jerid for about half a second— long enough to see that

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Jerid had a " shocked" look on his face— before looking back at the road ahead. At that point, while driving between 25 and 30 miles per hour, plaintiff saw the cable, which was then less than 25 yards away. Although he attempted to stop, he was unable to do so in time, and hit the cable. Plaintiff acknowledged that, before looking back at Jerid, he had not been focused straight ahead, but instead had been glancing from one side of the road to the other looking for property for sale. As a result of the accident, plaintiff suffered serious injuries.

Plaintiff sought damages from defendants, contending that his injuries were the result of their negligence. Specifically, plaintiff alleged that Mountain View was negligent in placing the cable across the access road, failing to better mark the cable, failing to warn travelers of the cable's presence, and failing to adequately inspect the access road. Plaintiff's complaint also alleged that Mountain View was [246 Or.App. 31] negligent per se and that its actions constituted wanton misconduct. Plaintiff alleged that Re/Max was negligent in placing the directional sign on Indian Creek Road, failing to remove the directional sign after the " larger ‘ For Sale’ sign had been removed," failing to warn travelers of the cable, and failing to adequately inspect the access road. Both Mountain View and Re/Max moved for summary judgment.

After hearing argument by all of the parties, the trial court issued an order recounting what it considered to be the dispositive facts:

" (1) [Plaintiff and Jerid] were riding their motorcycles on a private road during daylight when they approached a cable across the road.

" (2) [Jerid] saw something ‘ hanging across' the road, ‘ started slowing down,’ and knew it was a cable.

" (3) [Plaintiff and Jerid's] version of the events preceding the time when [plaintiff] hit the cable are identical in all material respects. According to [Jerid], [plaintiff] ‘ kind of coasted and then turned around and looked ... back at me and then he looked forward again ... [a]nd then he hit the cable. According to [plaintiff, Jerid] ‘ stopped but I ... continued to go. And I started to accelerate [a] little bit, and I looked back, and he had a shocked look on his face, and I turned back around, cable.’ [Plaintiff] testified that because of the shocked look on [Jerid's] face, [Jerid] ‘ could see that I was going to run into’ the cable.

" (4) Although [plaintiff] only turned around once to look at [Jerid], when asked if he was looking forward down the road at all other times, he testified, ‘ actually my eyes are wandering, looking for a sign’ indicating where a piece of property was for sale."

(Citations omitted.) Based on those facts, the trial court concluded that, as a matter of law, defendants could not be liable for plaintiff's injuries. Noting that the law requires a person driving a motor vehicle to...

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