Bidiman v. Gehrts

JurisdictionOregon
PartiesLynda M. BIDIMAN, Appellant, v. Duffy GEHRTS, Respondent. 92; CA A82221.
Citation890 P.2d 436,133 Or.App. 145
Docket NumberC-10208
CourtOregon Court of Appeals
Decision Date22 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.

EDMONDS, Judge.

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:

"A visitor such as plaintiff who comes upon the possessor's land with his business with defendant, whether or not connected with any purpose for which the possessor uses the land, could be invited to come upon the possessor's land to discuss business dealings between them after the visitor has disclosed the purpose of the visit. If so invited after the purpose of the visit is disclosed, such a person is a business visitor. Persons invited into the residence of another to transact business should be permitted to expect that the portion of the house into which they have been invited has been made reasonably safe for them. Nothing compels a possessor of land to allow such persons entry into his or her residence and if he denies them entry, their status never rises above that of a licensee."

Restatement (Second) Torts § 332, comment b at 176 (1965), further explains:

"Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so."

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:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but the failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended when the presentation of the merits of the action...

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8 cases
  • Cantua v. Creager
    • United States
    • Oregon Court of Appeals
    • July 12, 2000
    ...evaluating the entry of a directed verdict, we view the facts in the light most favorable to the nonmoving party. See Bidiman v. Gehrts, 133 Or.App. 145, 147, 890 P.2d 436, rev. den. 321 Or. 512, 900 P.2d 509 King began to work as a make-up tattooist in a room in defendant's salon after she......
  • Jones v. General Motors Corp.
    • United States
    • Oregon Court of Appeals
    • February 21, 1996
    ...could draw but one inference from the facts" and that inference supports a finding for the moving party. See, e.g., Bidiman v. Gehrts, 133 Or.App. 145, 147, 890 P.2d 436, rev. den. 321 Or. 512, 900 P.2d 509 (1995); Kohler v. Alspaw, 132 Or.App. 67, 69, 887 P.2d 832 (1994), rev. den. 321 Or.......
  • OTECC v. Co-Gen Co.
    • United States
    • Oregon Court of Appeals
    • June 21, 2000
    ...explicitly or implicitly tried by consent, or otherwise to conclude that the trial court abused its discretion. See Bidiman v. Gehrts, 133 Or.App. 145, 151, 890 P.2d 436, rev. den. 321 Or. 512, 900 P.2d 509 (1995) ("A party's assertion of a `fall back' argument in the event that the court r......
  • Fraker v. Benton County Sheriff's Office
    • United States
    • Oregon Court of Appeals
    • August 22, 2007
    ...citing ORCP 23 B in connection with conclusion that the unpleaded theory was tried by consent of the parties); Bidiman v. Gehrts, 133 Or.App. 145, 151, 890 P.2d 436, rev. den., 321 Or. 512, 900 P.2d 509 (1995) ("The thrust of ORCP 23 B is to permit the parties to try an issue not pled witho......
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