Walsh v. C & K MARKET, INC.
Decision Date | 27 December 2000 |
Citation | 16 P.3d 1179,171 Or. App. 536 |
Parties | Ann N. WALSH, Appellant, v. C & K MARKET, INC., an Oregon corporation, Respondent. |
Court | Oregon Court of Appeals |
George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
Robert E. Bluth, Medford, argued the cause for respondent. With him on the brief was Bluth & Billin, P.C.
Argued and Submitted May 18, 2000, Klamath Falls.
Plaintiff seeks damages for injuries that she suffered when the automatic doors at defendant's grocery store malfunctioned and hit her as she was entering. She appeals from a judgment that the trial court entered after granting defendant's motion for a directed verdict at the close of plaintiff's evidence.1 ORCP 60. The trial court held that plaintiff was a licensee at the time of her injury rather than an invitee, as she had alleged. We reverse.
Because we are reviewing a directed verdict, we state the facts most favorably to plaintiff, the losing party. Defendant operates Ray's Food Store in Harbor, Oregon. Plaintiff lives near the store and shops at it five or six times a week. On November 23, 1996, she went to the store with a friend, who intended to deliver a videotape to a store employee. Plaintiff did not intend to purchase anything on this particular visit. While plaintiff was entering the store, the automatic doors closed on her, causing the injuries in question. There is evidence from which the jury could conclude that defendant knew that the doors frequently malfunctioned, that defendant was negligent in not permanently fixing the malfunction, and that plaintiff's injuries were the result of that negligence.
In her complaint, plaintiff alleges that she was an invitee of defendant at the time of her injury. In its original answer, defendant admitted that allegation; however, in an amended answer filed ten days before trial, it changed the admission to a denial. After plaintiff rested, defendant moved for a directed verdict on the ground that plaintiff was only a licensee rather than an invitee, as she had alleged. Defendant emphasized that plaintiff did not intend to shop or to purchase anything when she entered the store at the time of the injury. Rather, defendant argued that plaintiff was simply going to visit its employee and that that employee was not a manager and did not otherwise have any authority to invite her into the store on defendant's behalf. The trial court granted the motion.2
Oregon adheres to the traditional rules governing the liability of an owner or possessor of land, under which the duties that the occupier owes to a person who comes on the land depend on whether the person is an invitee, licensee, or trespasser. The occupier owes the greatest duties to an invitee, including both a duty to warn of latent dangers and an affirmative duty to protect the invitee against dangers in the condition of the premises about which the occupier knows or should reasonably have known. Rich v. Tite-Knot Pine Mill, 245 Or. 185, 192, 421 P.2d 370 (1966). Oregon has adopted two tests for determining whether a person is an invitee. Under the first, the "economic advantage" test, anyone who comes on the premises for business that concerns the occupier, with the occupier's express or implied invitation, is an invitee. Id. at 191-92, 421 P.2d 370; Reed v. Jackson County, 105 Or.App. 24, 26-27, 803 P.2d 1194 (1990), rev. den. 311 Or. 261, 808 P.2d 1015 (1991). Under the second, the "invitation" test, a person is an invitee when the occupier, expressly or impliedly, leads the person to believe that it intended visitors to use the premises for the purpose that the person is pursuing and that the use was in accordance with the intention or design for which the premises were adapted or prepared. Parker v. Hult Lumber & Plywood Co., 260 Or. 1, 8, 488 P.2d 454 (1971); Reed, 105 Or.App. at 26-27, 803 P.2d 1194.
Restatement (Second) of Torts § 332 (1974), describes both of these tests, although it uses somewhat different terms. Both the Supreme Court and this court have referred to the text of and the comments to section 332 in considering whether a person is an invitee. Although the Supreme Court once refused to adopt a specific phrase in a comment to section 332, the courts have generally found the section to be consistent with Oregon law. See Taylor v. Baker, 279 Or. 139, 146-47, 566 P.2d 884 (1977) ( ); Bidiman v. Gehrts, 133 Or.App. 145, 149, 890 P.2d 436, rev. den. 321 Or. 512, 900 P.2d 509 (1995) ( ); Baker v. Lane County, 28 Or.App. 53, 57 n. 2, 558 P.2d 1247 (1977) ( ).
We find section 332 and the comments to it helpful in resolving the issues in this case. Section 332 provides:
"(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." A person whom section 332 calls a "public invitee" is, under the Oregon cases, an invitee under the invitation test, while a person whom section 332 calls a "business visitor" is an invitee under the economic advantage test.3
The issue in this case is whether plaintiff was an invitee when she went into defendant's store, even though she did not intend to purchase anything during that specific visit. We conclude that the jury could find that plaintiff was both a public invitee under the definition in section 332(2), and thus an invitee under the invitation test, and that she was a business visitor, and thus an invitee under the economic advantage test. Indeed, the tests tend to merge in this situation, because a broad invitation may well be economically advantageous to defendant's business.
We begin with the invitation test. The crucial issue under the invitation test is the nature of the invitation that a store owner gives to the general public. In Baker, we applied that test to hold that a boy who was present at a county fairground that was generally open to the public, and who was injured when he wandered to a location away from the function that he was attending, was an invitee under the invitation test. We noted that cases hold that "when a public body maintains and occupies land or facilities which are open to the public, then all members of the public who use the land or facility for the purposes for which they are held open have invitee status." 28 Or.App. at 58, 558 P.2d 1247.
As Baker suggests, invitee status will depend on both the purpose of the occupier who makes the invitation to the public and the understanding of the public that receives it. The invitation of the operator of a store selling groceries and general merchandise to the public is likely to be quite broad, because the operator is likely to view every person who enters as a potential customer. The invitation, thus, is not necessarily limited to people who are interested in making a purchase during that specific visit. As plaintiff argued to the trial court:
The few relevant authorities generally agree with plaintiff in this respect. Comment c to section 332 emphasizes that the proper inquiry is how a reasonable person, examining the words or conduct of the occupier, would interpret the occupier's willingness to receive a particular person.
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