Glorioso v. Ness

• Decision Date: 28 January 2004
• Citation: 191 Or. App. 637,83 P.3d 914
• Parties: Eleanor GLORIOSO, Appellant, v. Greg NESS and Terry Ness, Respondents.
• Court: Oregon Court of Appeals

83 P.3d 914

191 Or. App. 637

Eleanor GLORIOSO, Appellant, v. Greg NESS and Terry Ness, Respondents.

C010834CV; A118516.

Court of Appeals of Oregon.

Argued and Submitted July 30, 2003.

Decided January 28, 2004.

J. Randolph Pickett, Portland, argued the cause and filed the briefs for appellant.

Michael A. Lehner, Portland, argued the cause for respondents. With him on the brief was Lehner & Rodrigues, PC.

Before EDMONDS, Presiding Judge, and SCHUMAN and ORTEGA,¹ Judges.

ORTEGA, J.

Plaintiff appeals after the entry of summary judgment in favor of defendants in this "trip-and-fall" case. We conclude that the evidence is legally insufficient to impose premises liability against defendant property owners, even viewing that evidence most favorably to plaintiff and assuming that defendants are held to the standard of care owed to an invitee. Accordingly, we affirm.

Plaintiff, a professional photographer, was hired to photograph a wedding at the home of defendants, the groom's mother and her husband. Plaintiff arrived at defendants' residence before the ceremony and began to explore the area where the wedding was to take place, which included defendants' back deck. The deck extended straight out from the rear of the house and was accessible from a door placed approximately at the center of the deck. Plaintiff first walked the full length of the deck along the house, observing steps leading downward on the left side of the deck as well as chairs on a lower level deck on the left side. She then retrieved her camera from inside the house and walked out on the deck toward an arch that was set up for the ceremony. On her way to the arch, plaintiff fell on a step and was injured.

Defendants' deck had two levels, separated by a step of five to six inches in height that ran most of the length of the deck, parallel to the house. The deck was constructed of two-by-four decking material. At the point where plaintiff fell, the deck boards ran parallel to the step on both the upper and lower levels. Along the step ran a facing board, or "riser." It was a board of the same appearance and dimensions as the deck boards but was turned on its side. Its top edge was flush with the top of the step, giving an appearance of a narrower board running along the edge of the step. The decking material was of the same color and appearance on both the upper and lower levels.

The arch that plaintiff was attempting to reach was located on the lower level, though plaintiff testified that the arch did not appear to be on a lower level. Before falling, plaintiff was "looking down, but * * * looking at where [she was] walking to, towards the arch." The incident occurred around 3:00 p.m. and, although the weather may have been overcast, plaintiff testified that she could see the decking surface and that the lighting had "nothing to do with" her fall. The deck did not appear to be wet, nor was plaintiff aware of anything slippery on the surface. The deck had no other flaws but rather was, in plaintiff's words, in "gorgeous" condition. Although the deck was cluttered with decorations and other items related to the wedding, plaintiff testified that her visibility was unobstructed.

Plaintiff's operative complaint alleged, in pertinent part, that defendants were negligent in the following ways:

"(a) In failing to maintain reasonably safe premises in that the deck had a step downward, at the area where plaintiff fell, that was difficult to see because of the similarity of appearance of both the upper and lower portions of the step;

"* * * * *

"(c) In failing to warn * * * plaintiff * * * about the aforementioned dangerous condition at a time when defendants knew, or in the exercise of reasonable care should have known of the presence of the hazard * * *;

"[ (d) ] In failing to provide a handrail to enable * * * plaintiff * * * the ability to negotiate the aforementioned step in safety * * *."²

Defendants moved for summary judgment, contending that the undisputed facts established that (a) plaintiff was a licensee (i.e., one who comes on the premises for her own purposes with the consent of the possessor³), rather than an invitee (i.e., one who comes on the premises on business that concerns the occupier, with the occupier's express or implied invitation⁴), with the consequence that defendants' only duty was to warn plaintiff of concealed dangers of which they had knowledge;⁵ and (b) defendants had met the applicable standard of care as a matter of law because the step was not a concealed danger. Plaintiff then filed a cross-motion for partial summary judgment, contending that the undisputed facts established that she came on the property with the status of an invitee and was thereby entitled to be warned not merely of concealed dangers but of any unreasonable risks of harm.⁶ She also maintained that the step was a concealed danger in any event so that, in failing to warn her of it, defendants had failed to meet the lower standard of care owed to a licensee. In their reply and response to plaintiff's cross-motion, defendants contended for the first time that, even assuming plaintiff had the status of an invitee, defendants nevertheless were entitled to summary judgment. The trial court agreed and, though it explicitly found that issues of fact existed as to plaintiff's status, it ruled that defendants had met the higher standard of care owed to an invitee as a matter of law and were therefore entitled to summary judgment. We agree.

Before reaching the merits, we address two preliminary matters that, according to plaintiff, require reversal of the trial court's ruling. Plaintiff first contends that issues of fact regarding her status as an invitee or licensee preclude an award of summary judgment to defendants. However, such issues of fact, if they exist, are not material here unless there is a triable issue regarding defendants' compliance with the higher standard of care owed to an invitee. If we (like the trial court) assume the view most favorable to plaintiff on the issue of her status (thereby viewing the facts in the light most favorable to the nonmoving party as required by ORCP 47 C) and conclude that there are no issues of fact regarding defendants' compliance with that higher standard of care, any factual disputes regarding plaintiff's status are not material and therefore do not prevent summary judgment.

Plaintiff also contends that the trial court based its ruling on a summary judgment motion that was never filed. In their original summary judgment motion, defendants argued only that they met the standard of care owed a licensee. It was not until their reply brief and response to plaintiff's cross-motion for summary judgment that defendants argued they were entitled to judgment even if plaintiff was an invitee. Plaintiff contends that the trial court's ruling on that basis was prohibited by our prior cases.

The trial court's ruling here did not arise in a manner analogous to the cases on which plaintiff relies. In Hendgen v. Forest Grove Community Hospital, 98 Or.App. 675, 677, 780 P.2d 779 (1989), we held that the trial court could not grant summary judgment sua sponte on an emotional distress claim when the defendant had only moved for summary judgment on a negligence claim. In Industrial Underwriters v. JKS, Inc., 90 Or.App. 189, 190, 750 P.2d 1216 (1988), we held that a trial court could not indicate just before trial that it would grant summary judgment to one of the parties, allow that party to move orally for summary judgment, and then grant the motion, allowing the nonmoving party no opportunity to prepare a response.

The circumstances here are materially different from those and other cases in which we have held that summary judgment was improperly granted sua sponte.⁷ Defendants here moved for summary judgment on the only claim at issue, negligence based on premises liability; the court merely based its grant of summary judgment on a variation of defendants' original argument that they had met the standard of care owed to plaintiff as a matter of law—a variation that defendants explicitly asserted in their reply. Indeed, the trial court, consistently with ORCP 47 C, was viewing the facts in the light most favorable to plaintiff by assuming that she was entitled to the higher standard of care owed to an invitee. Unlike our prior cases reversing sua sponte awards of summary judgment, notice was not a problem: Plaintiff argued in response to defendants' summary judgment motion that she was an invitee and that defendants had failed to meet even the lower standard of care owed to a licensee (thereby necessarily arguing that defendants had failed to meet the higher standard of care if it applied). All parties, then, addressed plaintiff's status and defendants' compliance with the concomitant standard of care; both of those issues were squarely before the trial court.

Accordingly, we turn to the standard of care owed to an invitee and address whether defendants complied with that standard as a matter of law.⁸ Woolston v. Wells, 297 Or. 548, 557-58, 687 P.2d 144 (1984), generally describes the applicable standard:

"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise [due care] to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm."

Accordingly, property owners are "`liable to invitees only for conditions that create an unreasonable risk of harm to the invitee.'" Andrews v. R.W. Hays Co., 166 Or.App. 494, 503, 998 P.2d 774 (2000) (quoting Jensen v. Kacy's Markets, Inc., 91 Or.App. 285, 288, 754 P.2d 624, rev. den., 306 Or. 413, 761 P.2d 531 (1988)). This matter turns on whether, viewing the record...