Appleyard v. Port of Portland
| Decision Date | 19 May 2021 |
| Docket Number | A164927 |
| Citation | 492 P.3d 71,311 Or.App. 498 |
| Court | Oregon Court of Appeals |
| Parties | David APPLEYARD, Plaintiff-Appellant, v. PORT OF PORTLAND, Defendant-Respondent. |
Joshua S. DeCristo argued the cause and filed the briefs for appellant.
Gregory J. Miner, Portland, argued the cause for respondent. Also on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*
Plaintiff brought this premises-liability action against defendant, Port of Portland, seeking damages for injuries he sustained when he tripped over his own luggage and cut his foot on the bottom edge of a baggage carousel at the Portland International Airport (PDX). Plaintiff now appeals a general judgment of dismissal entered following a jury verdict in defendant's favor. The jury found that, although the fault of each party had been a cause of plaintiff's injury, plaintiff was more at fault than defendant; plaintiff, therefore, was not entitled to recover, and the trial court dismissed his claim. As we discuss below, plaintiff presents his appeal as raising a novel question of law: whether, in a premises-liability case, a business invitee's negligent conduct can give rise to comparative fault1 when the invitee did not know and could not have known of the presence of the dangerous condition or unreasonable risk of harm that allegedly caused the invitee's injury. Plaintiff argues that his status as a business invitee on defendant's premises limited his duty of care to acting reasonably to avoid harm from conditions of which he was, or at least should have been, aware, which, he contends, did not include the sharp underside of the baggage carousel. Defendant responds that a plaintiff's reasonable care for his own safety is always relevant to comparative fault, even in a premises-liability case. For the reasons that follow, we conclude that the trial court did not err in dismissing plaintiff's claim. Accordingly, we affirm.
At the outset, we clarify our understanding that, although plaintiff raises two assignments of error on appeal, his assignments share a single premise, and our assessment of that premise will determine that outcome of this appeal. Plaintiff argues under his first assignment of error that his negligence in tripping over his own luggage could play no role in the jury's attribution of fault for his injury.2 In his second assignment of error, plaintiff argues that there was no evidence to support defendant's assertion that he was negligent with regard to the injury that he suffered. Ultimately, both assignments of error rest on the same premise, which is that, because plaintiff neither knew nor had any reason to know that the base of defendant's baggage carousel had a dangerously sharp edge, no fault can be attributed to him for the injury that he suffered as a result of that condition. With that understanding in mind, we proceed.
Plaintiff's numerous assignments of error implicate various standards of review, not all of which require us to view the facts in the same light. However, to give context to the parties’ arguments, we provide the following summary of the historical and procedural facts, none of which seem to be in material dispute. Plaintiff and his wife flew from Minnesota to Portland for their granddaughter's wedding. After landing at PDX, plaintiff went to a baggage carousel to retrieve their luggage. Plaintiff removed a suitcase from the carousel and placed it next to him. Plaintiff then reached for a second bag coming around on the carousel, but, as he did so, he tripped over the first bag, which caused him to fall. When plaintiff fell, his right foot was thrust upward against the underside of the baggage carousel and, as a result, he suffered a deep cut to his foot. Plaintiff's injury required surgery, a three-day stay in the hospital, and roughly three months of recovery.
Following the accident, plaintiff sued defendant Port of Portland, which owns and operates PDX. Among other things, plaintiff alleged that "a sharp metal edge on the baggage carousel housing" had "severely lacerated" his right foot. Plaintiff further alleged that the presence of the metal edge had created a dangerous condition and unreasonable risk of harm of which defendant had known or should have known.3 At trial, plaintiff acknowledged having known that there was a space beneath the carousel "to stick your toes under if you were reaching over to get a bag." He denied, however, being aware of the character of the base of the carousel, such as the material or thickness of the trim. Plaintiff contended that defendant had been negligent and was liable for his injury because defendant had violated its duty to make the premises safe for its business invitees, including airline passengers.4 An expert witness who testified on plaintiff's behalf acknowledged that the force generated by his fall had contributed to the severity of his injury. Plaintiff maintained, however, that, because the sharp edge was a dangerous condition and posed an unreasonable risk of harm, defendant had been negligent in failing to warn invitees of its presence and allowing it to remain. In its defense, defendant disputed that the edge of the carousel had been sharp and attributed plaintiff's injury to the blunt force created by his negligent fall.5 More significantly for purposes of this appeal, defendant asserted as part of an affirmative defense of comparative negligence that plaintiff's own negligence had caused, in whole or in part, the injury that he had sustained.
At trial, plaintiff raised various challenges to defendant's assertion of comparative fault as an affirmative defense. Plaintiff first moved to exclude evidence of the defense and sought to have it stricken, arguing that his duty as an invitee was to take reasonable care to avoid conditions of which he was aware or should be aware, which, he contended, did not include the condition of the carousel. He later made essentially the same argument when arguing about jury instructions, and again when moving for a directed verdict as to the defense, objecting to the verdict form, moving for judgment notwithstanding the verdict (JNOV), and seeking a new trial. Each time, the trial court rejected plaintiff's argument that the jury should not be permitted to consider defendant's comparative-fault defense and that, even if the jury could consider comparative fault, his own negligence in tripping over his suitcase was immaterial to that defense.
In instructing the jury at the close of evidence, the trial court gave a series of instructions explaining premises liability, the duty that a possessor of land owes to its invitees, the duty of an invitee, comparative negligence, causation, and foreseeability. Over plaintiff's objection, the court instructed the jury regarding an invitee's duty as follows:
(Boldface omitted.) Plaintiff objected to that instruction on the ground that it misstated the law and was not supported by the evidence. He argued that the requirement in the first paragraph, that a person "keep and maintain a reasonable lookout and control over bodily movements, for their own safety" (the lookout instruction), and the entire second paragraph were inappropriate notwithstanding our decision in Vandeveere-Pratt v. Portland Habilitation Center , 242 Or. App. 554, 556, 259 P.3d 9 (2011), which defendant had cited in support of the instruction. Additionally, he argued that the lookout instruction improperly revived the concept of implied assumption of the risk, a defense that the legislature has abolished in Oregon.6 Defendant's overarching objection to the instruction was, as noted, the same as his argument throughout the trial, namely, that, because he did not know and could not know about the dangerous condition that injured him, he could not be comparatively at fault for his injury. Notwithstanding plaintiff's arguments, the trial court gave the disputed instruction in its entirety.7
As to comparative negligence, generally, the trial court gave an instruction that closely tracked the combined language of UCJI 21.01 and UCJI 21.02 () as follows:
(Boldface omitted.) Although plaintiff challenged defendant's assertion of any...
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...in that manner, we nonetheless decline defendant's suggestion and proceed to the merits of this appeal. See Appleyard v. Port of Portland , 311 Or. App. 498, 492 P.3d 71 (2021) (addressing merits of an appeal where opening brief erroneously identified appeal issues in preservation section r......