Emerson v. Western Photo-Mount Co.

• Jurisdiction: Oregon
• Citation: Emerson v. Western Photo-Mount Co., 518 P.2d 171, 267 Or. 562 (Or. 1974)
• Docket Number: PHOTO-MOUNT
• Parties: Mildred EMERSON, Appellant, v. WESTERNCO., an Oregon corporation, and John L. Dailey, Respondents.
• Court: Oregon Supreme Court
• Decision Date: 24 January 1974

Page 171

518 P.2d 171

267 Or. 562

Mildred EMERSON, Appellant, v.WESTERN PHOTO-MOUNT CO., an Oregon corporation, and John L Dailey, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 11, 1973.

Decided Jan. 24, 1974.

John J. Haugh, Portland, argued the cause for appellant.With him on the briefs were O'Connell, Goyak & Haugh, P.C., Portland, Donald A. Buss and Buss, Leichner, Lindstedt, Barker & Buono, Portland.

Nathan J. Heath, Portland, argued the cause for respondents.With him on the brief were White, Sutherland, Parks & Heath, Portland.

BRYSON, Justice.

Plaintiff brought this action to recover damages for personal injuries sustained when she fell on the deck of defendant's boat.¹Defendant Dailey permitted plaintiff's 15-year-old son, Martin Emerson, to operate defendant's 35-foot Chris Craft power boat.When Martin abruptly turned the boat to avoid a log, plaintiff lost her balance, fell, and was injured.The trial court, sitting without a jury, found for the defendant and entered judgment accordingly.The plaintiff appeals.

The sole assignment of error is, 'The trial court erred in holding that the defendant was not negligent and that the defendant's negligence was not a proximate cause of plaintiff's injury.'

The trial court reached its conclusions on the basis of conflicting evidence.We review the evidence in the light most favorable to the defendant, who is entitled to the benefit of all favorable evidence and inferences which may be reasonably drawn from such evidence.Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276, 280(1966);Krause v. Eugene Dodge, Inc., 265 Or. 486, 490, 509 P.2d 1199(1973).

On April 15, 1970, defendant Dailey invited six people, including plaintiff and her son Martin, for a cruise on his 35-foot cabin cruiser.The party boarded the vessel at 1 p.m. and headed down the Willamette River near Portland.The weather was clear, the water was calm, and there was very little traffic on the river.After a time, Dailey turned the boat around to return to the dock.

During the trip Martin Emerson had been inquisitive about the operation of the boat.On the way back to the dock, defendant Dailey asked Martin if he would like to operate the boat and Martin replied that he would.Dailey explained the operation of the boat controls to Martin and told him to watch out for logs.Dailey then turned the wheel over to Martin and supervised his operation of the boat for a short time.The boat speed was approximately 10 knots per hour.Dailey then stepped into the cabin, leaving Martin to operate the boat.

Shortly thereafter Martin observed what appeared to be a log in front of the boat and immediately turned the wheel to avoid the log.Martin's mother, plaintiff in this action, was walking on the aft boat deck and she lost her balance when Martin turned the wheel, and she suffered injuries when she fell to the deck.

The trial court made the following relevant findings:

'II

'That on April 15, 1970, defendant Dailey turned the wheel of said power boat over to one Martin W. Emerson, age 15; that Martin W. Emerson turned said vessel to the left, suddenly and abruptly, and the plaintiff fell to the deck of the vessel as a proximate result of the turn and that said turn was made without warning to the plaintiff; that plaintiff sustained injuries as a result of the fall.

'V

'Plaintiff failed to prove by a preponderance of the evidence that defendantJohn L. Dailey was guilty of any negligence which proximately caused plaintiff's accident.'

Plaintiff contends that 'Marty's (Martin's) conduct, as described by the findings of the trial, court, clearly constituted negligence.Marty (Martin), as the operator of the boat, owed a duty to others to avoid injury.This duty was breached by Marty's (Martin's) turning suddenly, abruptly, and without warning,' and therefore defendant Dailey was responsible for plaintiff's injuries.We do not agree.The court did not find that Martin's abrupt turning of the vessel to the left was negligence under the circumstances.

The rule setting forth the standard of care to be observed by one who supplies a chattel to a youthful user is stated in Restatement (Second) of Torts§ 390(1965):

'One who supplies * * * a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, To use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.'(Emphasis supplied.)

Implicit in the imposition of liability on one who supplies a chattel to an inexperienced or youthful user is the element of fault on the part of the user of the chattel.The plaintiff's brief agrees with this proposition and states, '(i)f the operator was not negligent in his operation of the vessel, the owner is generally absolved from liability.'The injury must be proximately caused by the negligence of the person to whom the chattel has been entrusted.This principle of vicarious liability,...