Foster v. Schnell Refrigeration Co.

• Decision Date: 22 November 1977
• Parties: Ilyne T. FOSTER, Appellant, v. SCHNELL REFRIGERATION CO., an Oregon Corporation, Respondent.
• Court: Oregon Supreme Court

Page 497

571 P.2d 497

280 Or. 411

Ilyne T. FOSTER, Appellant, v. SCHNELL REFRIGERATION CO., an Oregon Corporation, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 8, 1977.

Decided Nov. 22, 1977.

William G. Whitney, Portland, argued the cause and submitted a brief for appellant.

Gerald R. Hayes, Portland, argued the cause and submitted a brief for respondent.

Before HOLMAN, P. J., HOWELL and LENT, JJ., and GILLETTE, J. Pro Tem.

LENT, Justice.

This is an action for damages for personal injuries allegedly resulting from negligence of defendant. After plaintiff rested, defendant, without adducing further evidence, rested and moved for a directed verdict "on insufficiency of proof." The motion was allowed, and plaintiff appeals from the resulting judgment for defendant. ¹ We affirm.

In her complaint plaintiff alleged four specifications of negligence. In her written argument in her brief and upon oral argument she did not discuss any evidence to support submission to the jury of any of the first three charges. Her counsel declined, however, to concede her abandonment of those specifications. Suffice it to say, we have examined the record and can find no evidence to require submission of any of the three to the jury. Her fourth specification is:

"In failing to warn the plaintiff of the dangerous conditions existing in Bale's Thriftway Store's refrigerated meat unit."

We note a threshold question as to whether either under the complaint or the evidence defendant was under any duty to give plaintiff any warning. Plaintiff does not urge that defendant should have warned her personally. Rather, she contends that defendant failed to warn the operator of the store of the condition which she asserts produced the smoke mentioned hereafter. We need not decide the threshold question, however, for the defendant's position is that the evidence is insufficient, as a matter of law, to establish either a failure to warn or an inadequate warning to Bale's.

The sole issue on appeal, therefore, is whether there was sufficient evidence to submit to the jury the issue of adequate warning by defendant to Bale's.

The pleadings establish that on September 7, 1972, defendant's employe did repair work upon a refrigerated meat case in Bale's store, that plaintiff was a "business invitee" ² of Bale's later that day, and that while leaning over the meat case she was "enveloped by a white, hot fog of smoke escaping from" the meat case.

It is elementary that in determining whether the trial court erred in directing the verdict for defendant, we must view the evidence in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference which may be drawn from the evidence. In that light there is evidence to establish the following facts.

The operator of the store called defendant on the day in question to repair the refrigeration unit for the case in which meat was displayed to the customers of the store. It appeared that the drain had become clogged, causing water to accumulate and thereby short out the wiring to electric fan motors which circulated air in the refrigeration process. Defendant's employe unclogged the drain and repaired the motors for the electric fans. During normal use of the refrigeration unit the coils would become iced up, requiring de-icing. This was accomplished by a heating rod being turned on. Hot air produced by this rod would then be blown against the refrigeration coils to accomplish the de-icing. The heating rod would attain temperatures sufficient to cause material such as animal fat to smoke.

Defendant's employe was...