Andrews v. RW Hays Co.

• Decision Date: 12 April 2000
• Citation: 166 Or. App. 494,998 P.2d 774
• Parties: Deborah ANDREWS, Appellant, v. R.W. HAYS COMPANY, an Oregon corporation, dba Bi-Mor Stations, dba Bi-Mor Stations, Inc., an Oregon corporation, and Eugene B. Hunt, Respondents.
• Court: Oregon Court of Appeals

998 P.2d 774

166 Or. App. 494

Deborah ANDREWS, Appellant, v. R.W. HAYS COMPANY, an Oregon corporation, dba Bi-Mor Stations, dba Bi-Mor Stations, Inc., an Oregon corporation, and Eugene B. Hunt, Respondents.

(98-2173-L1; CA A106789).

Court of Appeals of Oregon.

Argued and Submitted February 3, 2000.

Decided April 12, 2000.

Randall Bryson, Eugene, argued the cause for appellant. With him on the briefs were Michael Kellington and Kellington & Kellington.

John T. Kaemph, Portland, argued the cause for respondents. With him on the brief was Bullivant Houser Bailey.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

HASELTON, J.

Plaintiff appeals, challenging the entry of summary judgment in favor of defendants, a property owner and a service station/convenience store operator, in a "trip-and-fall" case. We conclude that plaintiff's averments recounting hearsay descriptions of similar accidents at the same site were immaterial to summary judgment in that such testimony would not be "admissible in evidence" at trial. ORCP 47 D. We further conclude that the balance of the evidence, even when viewed most favorably to plaintiff, is legally insufficient to support imposition of premises liability against defendants. Accordingly, we affirm.

We describe the parties' evidence in detail below. In general, defendants R.W. Hays Company and Bi-Mor Stations, Inc. operate a combination service and convenience store in Medford on property that defendant Hunt owns. On July 8, 1996, plaintiff, a patron at the "Bi-Mor" store, sustained substantial injuries when she fell as she was leaving the store. Plaintiff fell on a 1½"-2" "step-down" as she walked from the concrete walkway outside the store to the slightly lower asphalt parking lot. The accident occurred around mid-day, and the weather was dry.

In June 1998, plaintiff filed this action. Plaintiff's operative amended complaint alleged that defendants were negligent:

"(a) In maintaining a dangerous condition on the defendants' premises, in that the step-down from the walkway to the asphalt was of insufficient depth or distance to be recognized as a step, and sufficiently deep to create the hazard of an unexpected drop.

"(b) In maintaining the dangerous step-down from the walkway to the asphalt in violation of Uniform Building code 1006.3, which requires that a step-down be either sloping gradually to the pavement or must be a uniform height of 6 inches.

"(c) In failing to properly warn invitees including the plaintiff that the step-down from the walkway to the asphalt was not of standard distance and presented a hazard."

Defendants moved for summary judgment. In support of that motion, defendants submitted excerpts of plaintiff's deposition testimony describing the accident, two photographs of the premises taken several months after the accident,¹ and the affidavit of Steven Hays, the vice-president and secretary of the two corporate defendants. That affidavit states that the premises satisfied all applicable building code provisions and appends as an exhibit a copy of a certificate of occupancy to that effect. The Hays affidavit further averred:

"Other than plaintiff's incident, defendants have no record of and are not aware of any other tripping or slipping incidents at that store.

"At all times, the sidewalk in front of the store has been made of light gray concrete. The parking lot * * * that abuts the sidewalk has at all times been made of black asphalt."

Plaintiff responded by relying on portions of her deposition testimony. In particular, she emphasized her testimony that, as she walked from the store to the parking lot, she saw no marking on the concrete; that she perceived no "difference in the asphalt to the concrete"; and that "it looked level." Plaintiff also submitted an affidavit that stated, in material part:

"3. [T]he ledge from which I fell was unpainted at the time of my injury.

"4. [T]he ledge from which I fell was not discernible by virtue of the contrasting colors of the pavement and the adjoining asphalt.

"5. [S]hortly after the incident occurred, I was informed by Bi-Mor personnel that this type of fall incident had occurred in the past to other people.

"6. [M]y husband only observed the ledge after I had fallen, to discern that it was uneven." (Emphasis added.)

Defendants filed a reply that, in part, objected to any consideration of the "other similar accidents" averment of paragraph 5 of plaintiff's affidavit. Defendants asserted, particularly, that the affidavit failed to establish that the statements of unidentified "Bi-Mor personnel" either were not hearsay or fell within any hearsay exception and, thus, under ORCP 47 D, that material should be disregarded.²

The trial court, without elaboration, granted summary judgment for defendants.

On appeal, plaintiff contends that summary judgment was inappropriate because, when the record is viewed most favorably to her, the facts are legally sufficient to support the imposition of premises liability with respect to her first and third specifications of negligence.³ The crux of plaintiff's argument is that

"[w]here there was evidence in the record of prior similar falls at the step-down on a walkway outside defendants' store, and of lapsed efforts by defendants to warn invitees of the danger by painting the edge of the step with yellow paint, and of the difficulty of ascertaining the step-down, the trial court should not have [allowed summary judgment] in favor of defendants, at least on the allegation that the defendants were negligent in failing to warn invitees, such as plaintiff, of the step-down."

Before addressing the merits, we must first determine what material is properly considered in resolving that question. Bluntly: What evidence is, or isn't, included in the summary judgment "mix"? In particular, does plaintiff's proffered evidence of other similar accidents satisfy the requisites of ORCP 47 D?

ORCP 47 D provides, in part:

"Except as provided by section E of this rule [pertaining to expert testimony], supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

Here, as before the trial court, defendants assert that plaintiff's recounting of alleged statements by unidentified Bi-Mor employees that there had been prior similar accidents does not comport with ORCP 47 D. See generally Paulsen v. Continental Porsche Audi, 49 Or.App. 793, 799 n. 3, 620 P.2d 1384 (1980) (in reviewing propriety of allowance of summary judgment, court will not consider inadmissible hearsay in affidavits opposing summary judgment); cf. Citizens Valley Bank v. Mueller, 63 Or.App. 152, 154, 662 P.2d 792 (1983) (party who contends on appeal that hearsay in summary judgment affidavits should be disregarded must have raised and preserved that objection in trial court). In particular, defendants contend that those alleged statements must be disregarded because the affidavit fails to demonstrate either that the statements were not hearsay or that they fell within an exception to the hearsay rule. We agree. See generally Dority v. Hiller, 162 Or.App. 353, 358, 986 P.2d 636 (1999) (under ORCP 47 D, trial court correctly sustained objection to consideration of hearsay in affidavit in opposition of summary judgment); Paulsen, 49 Or.App. at 799 n. 3, 620 P.2d 1384.

Plaintiff's recitations of the statements ascribed to "Bi-Mor personnel" would be admissible as substantive evidence only if those statements were not hearsay or fell within an exception to the hearsay rule. Plaintiff does not invoke any exception to the hearsay rule. Rather, she argues only that the purported statements were not hearsay because they constituted admissions of an agent of a party opponent within the meaning of OEC 801(4)(b)(D). Under that provision a statement is not hearsay if:

"The statement is offered against a party and is:

"* * * * *

"(D) A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]"⁴

See generally Laird C. Kirkpatrick, Oregon Evidence, 491 (3d ed 1996) ("Under this rule admissions by an agent may be received against the principal even though the agent was not authorized to make the statement, provided that (1) the statement concerned a matter within the scope of the agency or employment and (2) the statement was made during the existence of the relationship.").

Defendants contend that plaintiff's affidavit fails to establish the foundational requisites for admission under that exception. Most simply, defendants argue, it is impossible to determine whether a statement "concern[ed] a matter" within the declarant's scope of employment without knowing who the declarant was or, at least, the nature of his or her job:

"Plaintiff has not submitted any evidence that [the alleged statements] * * * concerned a matter within the scope of [the declarants' employment]. Indeed, plaintiff does not even identify the job title or function of the unidentified `Bi-Mor personnel.'"

Defendants are correct. Proof of a declarant's job title or responsibilities is essential to establishing admissibility under OEC 801(4)(b)(D). Although no Oregon reported decision directly addresses this issue,⁵ opinions from other jurisdictions are instructive and persuasive. See, e.g., State v. Cornell, 109 Or.App. 396, 400, 820 P.2d 11 (1991), aff'd. 314 Or. 673, 842 P.2d 394 (1992) (because OEC 801 is derived from Federal Rules of Evidence 801, "we may look to federal cases applying the federal rule as interpretive guides").

Thomas v. Stone Container Corp., 922 F.Supp. 950 (S.D.N.Y.1996), is exemplary. There, the corporate defendant moved for summary judgment in an occupational personal injury case, and plaintiff, in opposing that motion, submitted an...