Eberle v. Benedictine Sisters of Mt. Angel

• Decision Date: 17 October 1963
• Parties: Robert G. EBERLE, Jr., a minor, acting by and through his guardian ad litem, Rita M. Eberle, Appellant, v. BENEDICTINE SISTERS OF MT. ANGEL, a corporation, and Archdiocese of Portland in Oregon, a corporation, Respondents.
• Court: Oregon Supreme Court

Page 765

385 P.2d 765

235 Or. 496

Robert G. EBERLE, Jr., a minor, acting by and through his guardian ad litem, Rita M. Eberle, Appellant, v. BENEDICTINE SISTERS OF MT. ANGEL, a corporation, and Archdiocese of Portland in Oregon, a corporation,

Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 4, 1963.

Reargued June 4, 1963.

Decided Oct. 17, 1963.

Edward L. Clark, Jr., and Cecil H. Quesseth, Salem, argued the cause for appellant. On the briefs were Goodenough, Clark & Marsh, Salem.

Asa L. Lewelling, Salem, argued the cause for respondent Archdiocese of Portland in Oregon. On the brief were Lewelling & Gies, Salem.

Bruce W. Williams, Salem, argued the cause for respondent Benedictine Sisters of Mt. Angel. On the brief were Williams & Skopil and Alfred J. Laue, Salem.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, GOODWIN, DENECKE and LUSK, JJ.

DENECKE, Justice.

This is an action for damages against the owners and operators of a private school. The 13-year-old plaintiff-student received a hand injury when he attempted to hold open a door and his hand slipped off the bar, against a glass panel in the door and broke it. The trial court directed a verdict for the defendants.

The accident occurred in 1960 at the front exit doors of St. Paul's School. The exit consists of a double wooden door which opens outward at the center. The doors contain several glass panels with a panic bar running across the middle part of the door, four and one-half inches below the lowest panel of glass. To open the door the panic bar is pushed downward.

The injury occurred when the plaintiff and his classmates were leaving at the end of the day. Plaintiff was carrying books in his left hand and was following another student through the left door. According to the plaintiff, the student ahead of him had gone out the door and it was starting to swing back shut. Plaintiff testified he reached out with his right hand to push against the panic bar to halt the swing of the door and reopen it. His hand slipped off the bar, hit the glass panel, broke it and cut his hand.

The defendant Archdiocese owns the school. It is operated by the defendant Benedictine Sisters.

The principal issue concerns the following allegation of negligence:

'3. In failing to install plate glass in the front doors being used by pupils or otherwise properly keeping the glass from breaking in said doors; * * *.'

The glass panel that was broken was constructed of 'double strength' glass, not plate glass.

It is concluded that the trial court was in error in directing a verdict for the defendants.

We conclude that there was testimony from which the jury could find that reasonably prudent school administrators would know that double-strength glass door panels were unsafe.

The plaintiff has the status of an invitee or business visitor. Briggs v. John Yeon Co., 168 Or. 239, 122 P.2d 444; 2 Restatement 897, Torts § 332. As such, the defendants owe him a duty of reasonable care in the construction and maintenance of the building. Gow v. Multnomah Hotel, Inc., 191 Or. 45, 49, 224 P.2d 552, 228 P.2d 791.

2 Restatement 939, Torts § 343, Comment a, states the distinction between the duty owed a licensee and business visitor as follows:

'* * * a licensee is entitled to expect nothing more than an honest disclosure of the dangers which are known to the possessor. * * * Such a [business] visitor is entitled to expect that the possessor will take reasonable care to discover the actual condition of the premises and either make them safe or warn him of dangerous conditions. * * *'

Comment f states:

'A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons. * * * This is so because the boarding house keeper, even though a man of the same class as his boarders, is required to have a superior knowledge of the dangers incident to the facilities which he furnishes to them.'

An architect was called as a witness by plaintiff. He testified he was familiar with school construction in the Willamette Valley since 1952. He stated that the 'standard or usage of glass in doors of public buildings, as distinguished from private homes generally in this area' was quarter-inch plate glass. He further testified that quarter-inch plate glass was four times as strong as double-strength glass. He gave the opinion that the minimum safe glass thickness in the St. Paul School doors would be one-quarter-inch plate and this was for safety 'from a breakage standpoint.'

Ordinarily, when there is any testimony that a material is unsafe and not up to the standard used in the community it is a jury question whether or not the persons using such material, as reasonably prudent persons, should know that the material is unsafe. See cases collected in 2 Harper and James, The Law of Torts, 907, § 16.5, and the text at 916.

However, as defendants point out, this general proposition was found inapplicable in Doherty v. Arcade Hotel, 170 Or. 374, 134 P.2d 118. In that case the plaintiff hotel guest attempted to shut off the water in a wash basin and the porcelain handle broke in the plaintiff's hand, cutting him. There was no testimony of the cause of the breaking of this particular porcelain handle. Plumbers called by the plaintiff testified that porcelain handles were unsafe and had a tendency to break. There was testimony that 60 to 70 per cent of the fixtures in the area had metal, as distinguished from porcelain, handles. The statement of the plumber witness was that porcelain handles were not of 'standard make * * * [or] in general use in the plumbers' trade.' (170 Or. at 377, 134 P.2d at 119.) This testimony is very similar to that in the present case and this court in the Doherty case held there was no evidence of negligence on the hotel operator's part.

However, the court referred to facts in the Doherty case which are materially different than those here. At page 380 of 170 Or., at page 120 of 134 P.2d the court observed: 'The testimony of the four plumbing contractors indicates that porcelain handles were in general, if not universal, use until several years ago' and 'porcelain handles are [now] in common use.' (170 Or. at 388, 134 P.2d at 123.) 'None of the witnesses claimed that porcelain handles which remained in satisfactory condition were replaced with metal handles.' (170 Or. at 381, 134 P.2d at 121.)

At 391 of 170 Or., at 124 of 134 P.2d the court summarized: 'Hence, the fact that most of the buildings possess metal handles is nothing more than a repetition of the industry's practice as distinguished from the voice of common experience. As we have already pointed out, even the industry had not formed a practice adverse to porcelain handles until a few years before the plaintiff's injury occurred. Further, the mere fact that metal handles had gained wide favor does not necessarily indicate that those who chose them condemned porcelain handles as unsafe. Price, appearance, availability and the desire for something new may have been the impelling motives.'

Here, there is specific testimony that the standard for glass in the doors of public buildings is glass at least four times as strong as that used in the door of St. Paul's School and insertion of this glass is common usage. The reason for this was not price, appearance, etc., but safety.

Apart from the testimony about the respective use of porcelain and metal handles there was evidence in the Doherty case that porcelain handles which were apt to break could be identified before they broke. A plumber testified: 'If the handle is not checked or cracked, I would say there was no danger to it.' (170 Or. at 379, 134 P.2d at 120.) The maids who cleaned the room and used the handle daily observed no defect in it. Neither did the plaintiff who had occupied the room one month and 14 days before the accident. No comparable evidence is present in this case.

The Doherty case is not controlling. There was evidence here that defendants were negligent.

The defendant Benedictine Sisters contend that as they are not the owners of the buildings, they are not responsible for the condition of the door panels. The superintendent of schools for the Archdiocese testified that the Benedictine Sisters operated the school for the Archdiocese. He stated that repairs to the physical plant were a joint responsibility of the Archdiocese and the Benedictine Sisters. This evidence makes the responsibility of the Benedictine Sisters a question for the jury.

The other actions of the trial court which plaintiff charges were incorrect are found to be not in error.

Judgment reversed and remanded.

PERRY, Justice (dissenting).

I am unable to agree with my associates' interpretation of the evidence and the law applicable thereto as set out in the majority opinion.

At the time of the injury plaintiff was 13 years old. He was attending as a student St....