Bidiman v. Gehrts
Jurisdiction | Oregon |
Parties | Lynda M. BIDIMAN, Appellant, v. Duffy GEHRTS, Respondent. 92; CA A82221. |
Citation | 890 P.2d 436,133 Or.App. 145 |
Docket Number | C-10208 |
Court | Oregon Court of Appeals |
Decision Date | 22 February 1995 |
M. Elizabeth Duncan, Portland, argued the cause for appellant. With her on the briefs were Foley & Duncan, P.C., Richard T. Kropp, J. David Kryger and Emmons, Kropp, Kryger, Alexander, Egan & Allen, P.C., Albany.
L.E. Ashcroft, Salem, argued the cause for respondent. With him on the brief was Ashcroft & Rinehart.
Before WARREN, P.J., and RICHARDSON, C.J., and EDMONDS, J.
In this claim for personal injury based on allegations of negligence, plaintiff appeals after the trial court granted defendant's motion for directed verdict and ruled that plaintiff did not prove that she was a business invitee. ORCP 60. We affirm.
On appeal from a judgment based on a directed verdict, we review the evidence in the light most favorable to the nonmoving party and extend to that party the benefit of every reasonable inference that may be drawn from the evidence. Shockey v. City of Portland, 313 Or. 414, 837 P.2d 505 (1992), cert. den. 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993). A directed verdict should be granted only when reasonable persons could draw but one inference and that inference is favorable to the moving party. James v. Carnation Co., 278 Or. 65, 69, 562 P.2d 1192 (1977).
In her complaint, plaintiff alleges that in the course of her employment, she had gone on defendant's residential premises "as an invitee for the purpose of renewing a policy of insurance * * * " and was attacked by defendant's dog. Plaintiff is a manager for an insurance company and is in charge of three sales agents. The sales agents sell accident hospitalization insurance policies door-to-door and through referrals from existing policyholders. The policies have a six-month term, subject to renewal, and provide that "[y]our agent will call on you each 6 months unless you are on another mode of renewal." Plaintiff's duties include personally contacting the policyholders her sales agents are unable to locate.
Before 1990, defendant purchased an insurance policy from plaintiff's company while he was at his place of business. The policy was renewed every six months for five years at his place of business. In 1990, defendant terminated his business and was in the process of opening a new business. As a result, the sales agent responsible for renewing defendant's policy was unable to locate him. Thereafter, plaintiff attempted to contact defendant at his home for the purpose of renewing the policy.
Plaintiff drove to defendant's residence and parked her car in his driveway. She walked toward the front door of the house. As she approached the door, she did not see defendant's dog. The dog charged, barking and baring his teeth. Plaintiff saw a chain on the dog, but could not discern whether the other end of the chain was attached to anything. Plaintiff turned and ran toward her car with the dog in pursuit. She reached the safety of her car without being touched physically by the dog. She had no personal contact with defendant on that day. As a result of the encounter with the dog, she suffered a fracture in her foot for which she sought economic and noneconomic damages in this lawsuit. She alleges in her complaint that she was a business invitee when she came on defendant's property.
After plaintiff put on her case-in-chief, defendant moved for a directed verdict, arguing that plaintiff had failed to prove that she was an invitee to whom defendant owed a duty that he had breached. The trial court granted defendant's motion, and plaintiff appeals.
Plaintiff argues that, although she did not receive an express invitation to enter defendant's property for business purposes, the invitation to enter the premises was implied from the five-year history of agents personally contacting defendant to renew the policy. Defendant argues that he did not invite plaintiff to his residential premises, that plaintiff's status was that of a licensee, and that he did not breach any duty owed to a licensee.
A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings of the possessor of the land. Parker v. Hult Lumber & Plywood Co., 260 Or. 1, 8, 488 P.2d 454 (1971). An invitation can be express or implied. Rich v. Tite-Knot Pine Mill, 245 Or. 185, 421 P.2d 370 (1966). In Taylor v. Baker, 279 Or. 139, 147-48, 566 P.2d 884 (1977), the court said:
Restatement (Second) Torts § 332, comment b at 176 (1965), further explains:
In the past, defendant had been contacted only at his business when it came time to renew the policy, and never at his residence. There is nothing in the history of the prior contacts regarding the renewing of the policy that gave an implied invitation to plaintiff to enter his residential premises. At best, plaintiff may have had permission to come to defendant's home to renew the policy, but not an invitation in the legal sense of what is required for a business invitee relationship. For the latter relationship to have existed under the facts of this case, defendant would have had to know of plaintiff's presence at his residential premises, and would have had to manifest a desire for plaintiff to enter. The dissent believes that, because the policy affords coverage for hospital expenses for injuries incurred while defendant was at home, the terms of the policy constitutes an invitation. The short answer to the dissent's assertion is that the policy contemplates a face-to-face contact with the insured as a predicate to renewal. That contact could result in an invitation if it occurs. Here, the contact never took place. For an invitation to exist, it must arise from the insured's action in some manner. Moreover, the policy is not a premises liability policy. It is an accident disability policy that provides coverage for expenses from injuries wherever they occur. Consequently, it implies nothing about where plaintiff was invited to meet with defendant and there is no evidence to support plaintiff's claim that she was a business invitee.
Plaintiff also argues that the trial court erred in directing a verdict for defendant, because it should have considered her claim as if she was a licensee and that there was sufficient evidence to preclude a directed verdict on that basis. Defendant contends that plaintiff's complaint alleged only that she was an invitee, that plaintiff's argument is based on a theory not pled, and that the theory that she was a licensee is raised for the first time on appeal. Plaintiff counters that, although she did not plead that she was a licensee, nevertheless, that issue was tried pursuant to ORCP 23 B.
ORCP 23 B states:
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