Ault v. Del Var Props., LLC

• Decision Date: 26 October 2016
• Docket Number: A158432
• Citation: 383 P.3d 867,281 Or.App. 840
• Parties: Tricia Ault, Plaintiff–Appellant, v. Del Var Properties, LLC; and Eagle Point Mini Storage, LLC, Defendants–Respondents.
• Court: Oregon Court of Appeals

281 Or.App. 840

383 P.3d 867

Tricia Ault, Plaintiff–Appellant,

v.Del Var Properties, LLC; and Eagle Point Mini Storage, LLC, Defendants–Respondents.

A158432

Court of Appeals of Oregon.

Argued and submitted May 10, 2016, Southridge High School, Beaverton.

October 26, 2016

Tim Williams, Bend, argued the cause for appellant. With him on the briefs was Kathryn H. Clarke.

Scott Mahady, Eugene, argued the cause and filed the brief for respondent Del Var Properties, LLC.

Alicia M. Wilson argued the cause for respondent Eagle Point Mini Storage, LLC. On the brief were Bernard S. Moore and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and DeHoog, Judge.

DEHOOG

, J.

Plaintiff brought this negligence claim against defendants Del Var Properties, LLC, and Eagle Point Mini Storage, LLC, seeking damages for injuries sustained when she tripped over the edge of a sidewalk in front of defendants' office building. She appeals from the judgment dismissing the claim after the trial court granted defendants' motion for summary judgment and contends that the court granted the motion based on the mistaken conclusion that plaintiff was required to establish that the sidewalk edge was an “unreasonably dangerous condition.” Plaintiff contends that her claim does not depend on the existence of an unreasonably dangerous condition and, further, that she presented sufficient evidence to withstand summary judgment. We agree with plaintiff that the trial court committed legal error in granting defendants' summary judgment motion, and we therefore reverse and remand the judgment. ORCP 47

C; Jones v. General Motors Corp ., 325 Or. 404, 420, 939 P.2d 608 (1997).

We summarize the facts in the light most favorable to plaintiff, the party opposing the motion for summary judgment. Jones , 325 Or. at 420, 939 P.2d 608

. Defendant Eagle Point operates a storage facility and business office in a single-story building owned by defendant Del Var Properties. A light gray concrete sidewalk runs the length of the front of the building and separates the building from an asphalt parking lot. The sidewalk pavement is generally flush with the parking lot, except for a section directly in front of Eagle Point's office door, where the pavement is approximately one to two inches above the level of the parking lot.

Plaintiff rented storage space from Eagle Point. Late one February afternoon, plaintiff went to Eagle Point's office to deposit a rental payment in a drop box to the left of the office door. She parked her car in the parking lot, in an area where the sidewalk pavement and the asphalt were even. As she walked from her parked car to the drop box, she fell and sustained injuries when she tripped on the raised edge of the sidewalk directly in front of the office door.

In her amended complaint, plaintiff alleged a negligence claim for damages based on a theory of premises liability:

“At all material times, Defendants knew or should have known that the misalignment existed in the area where [plaintiff] fell.

“ * * * * *

“At all material times, the danger created by the misalignment was latent, thereby constituting an unreasonable risk of harm to others, including [plaintiff], and further constituting an unreasonably dangerous condition that could not be encountered with a reasonable degree of safety by persons similarly [situated] to [plaintiff].”

The complaint further alleged that defendants were negligent in causing or allowing the “misalignment” of the sidewalk and the asphalt in an area where customers would walk; in failing to discover the misalignment; in failing to repair or replace the misalignment; in failing to place signs or barriers to prevent customers from encountering the misalignment; and in failing to warn customers or otherwise make known the misalignment.

Plaintiff testified by deposition that she had been to Eagle Point's office on other occasions but had never noticed the raised edge or tripped. She testified that she was wearing flip-flops on the day of the accident but that they did not cause her to trip. She testified that the area was dry and that neither the lighting nor the weather had contributed to her fall. She testified that she did not recall where she had been looking at the time of the fall, but that, if she had noticed that the sidewalk pavement was higher, she could have stepped over the edge.

The summary judgment record included photographs of the front of the building. The photographs showed the sidewalk pavement and signage on the door of the Eagle Point office and on the drop box to the left of the door. The photographs also showed items arranged on the sidewalk and against the wall in front of the Eagle Point office. To the right of the door were a vending machine, a portable traffic light, a hose, and a metal container. To the left of the door were a statue of an eagle, a picnic table and benches, a large garden swing, several potted plants, and a vending machine. There was an awning along the length of the Eagle Point office with a set of wind chimes, and two American flags were displayed along the wall.

In their memoranda in support of their motion for summary judgment, defendants contended that the evidence in the record was insufficient as a matter of law to support a claim of negligence based on a theory of premises liability, because plaintiff could not establish the existence of either an “unreasonable risk of harm” or an “unreasonably dangerous condition.” Citing this court's opinions in Glorioso v. Ness , 191 Or.App. 637, 644, 83 P.3d 914

, rev. den. , 336 Or. 657, 92 P.3d 122 (2004) ; Andrews v. R. W. Hays Co. , 166 Or.App. 494, 503, 998 P.2d 774 (2000) ; and Jensen v. Kacy's Markets, Inc. , 91 Or.App. 285, 289, 754 P.2d 624, rev. den. , 306 Or. 413, 761 P.2d 531 (1988), defendants further argued that, “[a]bsent an ‘unreasonably dangerous condition,’ a possessor is not liable for the injuries sustained by invitees on his premises.”¹ In light of plaintiff's testimony that she had previously encountered the sidewalk edge without tripping and that she could have stepped over it had she seen it, defendants contended that the evidence could not support a finding that the raised edge was unreasonably dangerous.

In response, plaintiff argued that there was evidence from which a jury could find that, under the circumstances, the raised pavement edge was an unreasonably dangerous condition. Plaintiff separately contended that, contrary to defendants' view, it was not necessary to establish an unreasonably dangerous condition in order to prevail on a claim of negligence based on premises liability. In plaintiff's view, a property owner or occupier can be liable for failing to protect an invitee from an unreasonable risk of harm that does not constitute an unreasonably dangerous condition. Plaintiff further contended that there was evidence from which a jury could find that the raised pavement edge was a latent defect that posed an unreasonable risk of harm to invitees giving rise to a duty to warn, and that defendants breached that duty. Plaintiff also advised the court that she had retained an expert witness who would testify to admissible facts and opinions that would create a question of fact precluding summary judgment. ORCP 47

E.

The trial court granted defendants' motion for summary judgment, concluding that

“the Summary Judgment record, as a matter of law, does not establish an unreasonably dangerous condition (i.e. , no evidence of a slippery surface, poor lighting, prior accidents or a store front that, in fact, created a distraction to Plaintiff), nor is [this] a case in which ORCP 47

E applies[.]”

Plaintiff assigns error to the trial court's ruling granting defendants' motion for summary judgment. The resolution of the issues on appeal requires us to interpret this court's and the Supreme Court's case law relating to premises liability. On appeal, the parties agree that plaintiff was defendants' business invitee² and that, because of the special relationship between possessors of land and their business invitees, negligence claims by an invitee based on premises liability fall into the category of cases that the Supreme Court has said “invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty.” Fazzolari v. Portland School Dist. No. 1J , 303 Or. 1, 17, 734 P.2d 1326 (1987)

; see also

Garrison v. Deschutes County , 334 Or. 264, 272, 48 P.3d 807 (2002) (business invitee rule is a “special duty”). The parties also agree that, as a possessor of land, defendants' duty to plaintiff was to maintain the premises in a reasonably safe condition in order to protect plaintiff from conditions that created an unreasonable risk of harm and to exercise that duty by either eliminating any such condition or warning of the risk to enable the invitee to avoid the harm. Hagler v. Coastal Farm Holdings , 354 Or. 132, 140–41, 309 P.3d 1073 (2013) ; Woolston v. Wells , 297 Or. 548, 557–58, 687 P.2d 144 (1984) ; see also Cassidy v. Bonham , 196 Or.App. 481, 486, 102 P.3d 748 (2004)

(the possessor's duty to an invitee is to “warn of latent dangers” and to “protect the invitee against dangers in the condition of the premises about which the [possessor] knows or should reasonably have known”).³

But, as before the trial court, the parties disagree as to when circumstances give rise to a possessor's duty to an invitee. Defendants' view, with which the trial court agreed, is that our case law defines an unreasonable risk of harm as an “unreasonably dangerous condition.” Therefore, defendants contend, a duty to warn or otherwise protect an invitee arises only when there is an unreasonably dangerous condition on the premises, and, to establish liability for a failure to protect an invitee from harm, a plaintiff must put on proof of an “unreasonably dangerous condition.” In this case, defendants argue, the trial court...