Eck v. Market Basket

• Decision Date: 01 February 1973
• Citation: 505 P.2d 1156,264 Or. 400
• Parties: Katie M. ECK, Respondent, v. MARKET BASKET et al., Appellants.
• Court: Oregon Supreme Court

Page 1156

505 P.2d 1156

264 Or. 400

Katie M. ECK, Respondent, v. MARKET BASKET et al., Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 11, 1973.

Decided Feb. 1, 1973.

J. Anthony Giacomini, Klamath Falls, argued the cause for appellant Harry R. Waggoner. With him on the brief was Stanley C. Jones, Jr., Klamath Falls.

Mel Kosta, Klamath Falls, argued the cause for appellants Market Basket, Norman J. Duffy dba Market Basket. With him on the brief were Kosta & Brant, P.C., Klamath Falls.

Robert S. Hamilton, Klamath Falls, argued the cause for respondent. With him on the briefs were Beddoe, Henderson & Hamilton, Klamath Falls.

TONGUE, Justice.

This is an action for personal injuries sustained by plaintiff when she fell upon leaving the exit door of a grocery store. The store was owned by defendant Waggoner and leased to defendant Duffy, dba 'Market Basket.' The jury returned a verdict for plaintiff. Both defendants appeal from the resulting judgment. We affirm.

1. The evidence was sufficient to support the verdict.

The first assignment of error by both defendant is that the trial court erred in denying their motions for involuntary nonsuits and directed verdicts upon the ground that there was a failure of proof that plaintiff either fell in the area she alleged to be defective or that the fall was caused by the effective area and that the evidence established that plaintiff was contributorily negligent as a matter of law.

The grocery store had separate entrance and exit doors, about six feet apart, each with handrails and rubber matting extending about four feet outside the store and ending on a concrete sidewalk along the front of the store. When the store was built indoor-outdoor carpeting was installed on the sidewalk. That carpeting became worn and hazardous and was removed by the owner of the store some three days before the accident. Upon its removal it was discovered that the concrete surface of the sidewalk underneath the carpeting had 'flaked.' After clearing away the loose bits of concrete, a 'ridge' of some three-fourths of an inch was exposed and was located between the end of the rubber mat at the exit door and the curb edge of the sidewalk, about three feet away. This was the condition existing at the time of plaintiff's fall.

Upon removal of the carpeting a sign was placed between the two doors on the outside of the store with the following words in large letters: 'Please Watch Your Step.' Plaintiff and her son testified that this sign was not present at the time of her fall. All witnesses agreed, however, that there was no warning sign inside the store near the exit door to warn customers upon leaving the store.

Plaintiff testified that although she had previously visited the store, she had not done so within the previous three or four weeks. Plaintiff admitted that when she entered the store she observed the rough surface outside the entrance door, on the 'right hand side going in * * * as if somebody had been working.' There was no direct testimony that she observed this rough surface outside the exit door, either upon entering or leaving the store. She also testified that upon leaving the store and upon stepping off the rubber mat, her heel hit a 'rough spot' or 'rise' in the concrete, causing her to fall.

Plaintiff also testified, over objection, that the assistant manager of the store then came to her and said 'They told Waggoner not to leave that this way, somebody would get hurt.' That employee had previously testified, when called as a witness by plaintiff, over objection by defendant Waggoner only, that probably he said 'something to the effect that the sidewalk was a little rough there, and that it needed fixing.' Defendant Duffy then offered in evidence a signed statement by the same witness, which, among other things, stated that 'Bob Waggoner was supposed to repair this area.' Although that portion of the statement was also objected to by defendant Waggoner, both defendants Duffy and Waggoner testified to the same effect.

Based upon this testimony, and despite some testimony to the contrary, we hold that there was sufficient evidence to support the finding by the jury that plaintiff fell in the area alleged in the complaint; that her fall was caused by the defective area and that she was not contributorily negligent as a matter of law. See Dawson v. Payless for Drugs, 248 Or. 334, 337--339, 433 P.2d 1019 (1967); Scott v. Mercer Steel/Edwards Realty, 95 Or.Adv.Sh. 1785, 503 P.2d 1242 (1972); Stocking v. Sunset Square, Inc., 96 Or.Adv.Sh. 167, 504 P.2d 100 (1972); See also 2 Restatement 215--16, Torts 2d § 343.

Defendants contend that Dawson is 'clearly distinguishable' upon the ground that '(t)he holding in Dawson applies only in those cases where the condition of premises is Unreasonably dangerous and where the possessor of the premises has reason to expect that the invitee will nevertheless suffer physical harm despite his knowledge of the condition.' We are unable to distinguish Dawson on that basis and believe that there was sufficient evidence from which the jury could properly find in this case that the condition was unreasonably dangerous and that defendants were aware of the dangerous condition, but that plaintiff was not.

2. No prejudicial error resulted from instructions with deletions which were 'legible.'

In support of alternative motions for new trial both defendants also assign as error the submission to the jury of written instructions with portions 'crossed out' in such a manner that the deleted portions were 'legible.' It is contended that these instructions were confusing and misleading, contrary to the requirement that each party has the right to have the jury instructed in 'plain, clear and simple language' and that instructions which 'mislead or confuse' are ground for reversal.

This contention necessarily assumes that members of the jury not only read, but considered, the portions of the instructions which were deleted despite the fact that those portions were not included when, as required, the instructions were read by the court to the jury. See ORS 17.255(2) and Hollis v. Ferguson, 244 Or. 415, 423, 417 P.2d 989 (1966). In addition, this contention must assume that, as a result, the jury was not only 'confused,' but was prejudiced against the defendants.

After examining both the oral instructions and the written instructions, including these deletions, we do not believe that there is a substantial basis for these assumptions in this case.

It must also be recognized that when, as in this case, the parties request that written instructions be delivered to the jury, the trial court may be faced with practical problems. These may include some difficulty, considering the time and stenographic assistance that may then be available, in preparing written instructions which are not only in perfect form, but which have no changes or additions by interlineation and in which any deletions are not 'legible.'

It is important, of course, insofar as possible, to avoid interlineations and deletions in written instructions to the jury. It is possible that interlineations or deletions may be made in such a manner as to provide sufficient grounds for reversal. For reasons previously stated, however, we do not reach that result in this case.

3. The trial court did not abuse its discretion in granting leave to amend the complaint.

Defendant Waggoner assigns as error the allowance of plaintiff's motion for leave to amend the allegations of her complaint. He contends that plaintiff's original complaint charged him, as owner of the building, with negligence in leasing it in a defective condition to defendant Duffy, whereas the amendment permitted by the court, and at the conclusion of plaintiff's case, charged that he negligently repaired the entryway and left it in a dangerous condition by removing the carpet and a portion of the concrete surface and by 'leaving it in a rough, choppy, pitted and depressed condition.'

It is contended that this amendment substantially changed the cause of action and that the evidence on which the motion to amend was based was not received without objection, but over objection, all contrary to the requirements of ORS 16.390, and the rule as stated in Tracy and Baker v. City of Astoria, 193 Or. 118, 237 P.2d 954 (1951), and Smith v. Jacobsen, 224 Or. 627, 356 P.2d 421 (1960). It is also contended that defendant Waggoner suffered substantial prejudice by the allowance of that amendment at the conclusion of plaintiff's case and immediately before defendant Waggoner was required to proceed with his defense.

In those cases we held that the...