Brant v. Tri-County Met. Trans.

Decision Date05 August 2009
Docket Number061212831.,A138202.
Citation213 P.3d 869,230 Or. App. 97
PartiesBolek BRANT, guardian ad litem for Halina Brant-Zawadski, Plaintiff-Appellant, v. TRI-COUNTY METROPOLITAN TRANSIT DISTRICT OF OREGON, dba Tri-Met, Defendant-Respondent.
CourtOregon Court of Appeals

J. Randolph Pickett, Portland, argued the cause for appellant. With him on the briefs were Melissa A. Bobadilla and Pickett Dummigan Aguilar LLP.

Keith M. Garza, Salem, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and NORBY, Judge pro tempore.


Plaintiff,1 a passenger on a bus owned and operated by Tri-County Metropolitan Transportation District of Oregon (Tri-Met), brought this negligence action against Tri-Met, alleging that she fell from her seat because of the bus driver's negligent operation of the bus. Tri-Met moved for summary judgment under ORCP 47 on plaintiff's claim, and the trial court granted the motion, reasoning that, although plaintiff presented evidence that the driver had braked suddenly and caused her to fall, she had not presented any evidence that the sudden braking was unreasonable under the circumstances. On appeal, plaintiff contends that a jury could infer that the driver was negligent based solely on the fact that she fell from her seat when the driver suddenly applied his brakes. We affirm.

On January 19, 2006, plaintiff was riding a Tri-Met bus in southwest Portland. During the trip, plaintiff fell from her seat and was injured. After she fell, the driver pulled the bus to the side of the road and obtained from plaintiff a signed "Driver's Exoneration Form" that stated that the driver and Tri-Met "were not at fault in connection with [the] accident."2 However, a few days after the incident, plaintiff wrote a note in which she indicated that she had fallen because of the "jerky" drive on the bus. She subsequently filed this action, alleging that the bus driver's negligence caused her fall and resulting injuries.

Tri-Met, in turn, took plaintiff's deposition. During the deposition, plaintiff testified that she "was holding on to the handlebar, sitting in the senior seat on the opposite side of the bus where I fell. Suddenly the bus driver hit the brakes. I lost my grip and fell down on the floor." When asked whether the driver caused her to fall, plaintiff responded, "I think so, because he stopped so suddenly and so strong." When asked whether the driver "came to a complete stop and that's when you fell," plaintiff responded, "I think so." Plaintiff did not testify as to why the driver braked or the circumstances surrounding the braking.3

Tri-Met then moved for summary judgment on the ground that plaintiff was unable to prove that her fall was the result of the driver's negligence, as distinguished from the ordinary operation of the bus. In the absence of any evidence of the circumstances of the "braking," Tri-Met argued, the jury would be left to speculate whether the actions of the bus driver were "heroic, normal, negligent, or grossly negligent." In that regard, Tri-Met submitted, the facts were indistinguishable from O'Dee v. Tri-County Metropolitan Trans. Dist., 212 Or.App. 456, 157 P.3d 1272 (2007), a case in which we affirmed a grant of summary judgment against a plaintiff who was injured when a bus driver swerved and braked to avoid a bicyclist. In O'Dee, we concluded that the "[p]laintiff was unable to present any facts that by themselves or by their reasonable inferences could cause a reasonable juror to find the bus driver failed to meet the applicable standard of care." Id. at 463, 157 P.3d 1272.

In response to the summary judgment motion, plaintiff offered her own deposition testimony, the deposition testimony of the driver (who recalled that the bus was traveling "at a pretty constant speed, but I don't recall what that was"), and the video of plaintiff's fall that was captured by Tri-Met cameras onboard the bus. According to plaintiff, the video (which we discuss in detail later in this opinion), shows "that the bus was traveling in a relatively straight direction with no obstacles encountered, that plaintiff was holding onto the railing in the senior seat as she described, and that she suddenly was thrown towards the aisle, and fell." In plaintiff's view, that evidence distinguishes this case from O'Dee, in which the driver swerved to avoid a bicyclist, because nothing in the bus driver's testimony or in the onboard video "would explain and justify the operator's sudden movement of the bus."

The trial court agreed with Tri-Met, concluding that our analysis in O'Dee was controlling:

"Here Plaintiff has not presented any evidence as to why or in what way the alleged braking was unreasonable. In O'Dee the Court of Appeals stated: `The unknown information is whether the bus driver's reaction to the bicyclist was reasonable.' Id. at 463, 157 P.3d 1272. Plaintiff does not ask for the application of any res ipsa loquitur doctrine. That being the case, the unknown information is whether the bus driver's reaction to the situation he faced was reasonable. Plaintiff had the burden of producing evidence on that point and she has not done so."

The trial court then entered judgment against plaintiff, which resulted in this appeal.

On appeal, plaintiff renews the argument that she made below as to why the facts of this case are distinguishable from O'Dee. Specifically, plaintiff argues that, when she is given the benefit of all reasonable inferences that may be drawn from the fact that she was thrown from her seat by an unexplained braking, there is a genuine issue of material fact in this case that was not present in O'Dee.4 Because it is the focus of the parties' arguments, we begin by discussing O'Dee in some detail.

In O'Dee, the plaintiff alleged that she was injured when the Tri-Met bus on which she was riding swerved twice and then braked abruptly. 212 Or.App. at 458, 157 P.3d 1272. The facts, stated in the light most favorable to the plaintiff, were as follows:

"On August 15, 2002, plaintiff boarded one of defendant's busses at 74th Avenue and Glisan in Portland, heading toward the city center. Plaintiff recognized the driver because she was a regular passenger and he was the regular driver. As the bus approached plaintiff's stop traveling approximately 10 to 15 miles per hour—a speed that the parties agree was appropriate in the circumstances—plaintiff rose in anticipation of deboarding. The bus suddenly swerved to the left toward oncoming traffic to avoid what was probably a bicyclist entering the street from the sidewalk; as a result, plaintiff was thrown to the floor. As she was picking herself up, the bus swerved again, this time to the right, and came to an abrupt stop. Plaintiff avoided a second fall, but stated that, when the bus swerved the second time, `I felt like I was separated at the waist, and I felt like something tore in my thigh. And it really hurt.'"

Id. The trial court granted summary judgment on the ground that the plaintiff had failed to produce any evidence from which a jury could have concluded that the bus driver's reaction to someone "rolling" into his path (likely a bicyclist) was unreasonable under the circumstances. We agreed, explaining:

"[T]he bare fact that a bus driver who was approaching an intersection in a busy part of Portland did not anticipate a bicyclist early enough to avoid having to swerve does not mean that the driver was negligent. * * *

"Moreover, because there is no evidence about the location of the bicyclist, his or her speed, the existence of other distractions, the driver's condition, or any other relevant facts, a jury would have no way of knowing whether any reasonable driver would have been able to react in a manner that would not have caused plaintiff to fall. Without any such evidence, a finding that the driver failed to exercise the requisite degree of care would be pure speculation, and, as the Supreme Court has stated, `[i]t is * * * fundamental that negligence cannot be predicated upon mere conjecture, guesswork, or speculation.' Simpson v. Hillman, 163 Or. 357, 363, 97 P.2d 527 (1940)."

Id. at 461-62, 157 P.3d 1272 (second omission in O'Dee). We further rejected the plaintiff's contention that the bus driver breached the applicable duty of care when he swerved "back to the right after the initial swerve to the left." Id. at 462, 157 P.3d 1272. "Given the complete lack of evidence of where other vehicles were located, a juror would have no reason to believe that the driver acted negligently in swerving back to the right to return the bus to the lane in which it had been traveling." Id.

Central to our holding in O'Dee is the applicable legal standard under ORCP 47 C. We explained that, "since the summary judgment standard was amended in 1999, the nonmovant has the burden of offering admissible evidence to create a genuine issue of material fact `on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial.'" 212 Or.App. at 463, 157 P.3d 1272 (quoting ORCP 47 C). "The onus of evidentiary default in this case therefore falls on plaintiff." Id. at 463, 157 P.3d 1272. In other words,

"[t]he unknown information is whether the bus driver's reaction to the bicyclist was reasonable. Plaintiff was unable to present any facts that by themselves or by their reasonable inferences could cause a reasonable juror to find the bus driver failed to meet the applicable standard of care. Under the current rules of civil procedure, plaintiff failed to defeat defendant's summary judgment motion."

Id. (emphasis added).

With that background, we...

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