Hagler v. Coastal Farm Holdings, Inc.

• Decision Date: 12 September 2013
• Docket Number: (CC 0807–10811,CA A142965,SC S059895).
• Citation: 354 Or. 132,309 P.3d 1073
• Parties: Keri HAGLER, Petitioner on Review, v. COASTAL FARM HOLDINGS, INC., a Delaware corporation, Respondent on Review.
• Court: Oregon Supreme Court

354 Or. 132

309 P.3d 1073

Keri HAGLER, Petitioner on Review,

v.COASTAL FARM HOLDINGS, INC., a Delaware corporation, Respondent on Review.

(CC 0807–10811; CA A142965; SC S059895).

Supreme Court of Oregon, En Banc.

Argued and submitted Nov. 5, 2012.

Resubmitted Jan. 7, 2013.

Decided Sept. 12, 2013.

On review from the Court of Appeals.^*

Thomas C. Patton, Portland, argued the cause and filed the brief for petitioner on review.

Janet M. Schroer of Hart Wagner, LLP, Portland, argued the cause and filed the brief for respondent on review. With her on the brief was Marjorie A. Speirs.

Travis Eiva of The Corson & Johnson Law Firm, Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association.

LANDAU, J.

In this personal injury action, plaintiff alleges that she was injured as she walked down the aisle of defendant's store and a heavy item of merchandise fell on her foot. She did not see the item fall, nor did she see how it was shelved before it fell. She nevertheless contends that the store was negligent, because the item would not have fallen had it been properly shelved. The trial court entered summary judgment for defendant, concluding that plaintiff had produced no evidence that defendant knew or reasonably should have known of any danger in the shelving of its product. The Court of Appeals affirmed. For the reasons that follow, we also affirm.

The relevant facts are not in dispute. Plaintiff and three friends shopped in defendant's store. They walked down an aisle where post pounders were shelved. A post pounder is a roughly 15–pound metal tool consisting of a long steel pipe that is closed at one end and has two handles, one welded to each side of the pipe. The tool is used for driving fence posts into the ground. As plaintiff walked down the aisle, she felt a sudden pain in her foot and heard the clatter of a post pounder as it hit the floor. Neither plaintiff nor her friends observed the post pounder fall, how that particular post pounder had been shelved before the fall, or which shelf it had fallen from.

Defendant's assistant store manager, Dutton, took a photograph of the shelved post pounders approximately five to 10 minutes after the accident. The photograph shows post pounders set on three levels of shelving, at heights of about eight inches, two feet, and three and a half to four feet, respectively. The first and lowest level contains a row of five large post pounders arranged flat on the shelf and perpendicular to the shelf wall so that the ends point out from the shelf. The post pounders are all slightly longer than the depth of the shelf, so they protrude a few inches past the edge. Further down the first shelf sit about eight smaller post pounders oriented the same way but stacked two high. The second shelf contains five post pounders laid flat and perpendicular to the wall, with one stacked on top of two others. On the third and highest shelf, additional post pounders lie flat but parallel to the wall, guarded at the shelf front by a protective wire grate.

Plaintiff initiated this action for negligence against defendant. Plaintiff alleged that defendant breached its duty of care that it owed to her as a business invitee in four particulars:

“a. In negligently hiring, training, [and] supervising employees and operations at the store, so as to prevent the improper placement of post pounders;

“b. In failing to properly place the post pounder, creating an unreasonably unsafe condition;

“c. In failing to properly warn customers of the dangerous condition created by improperly placed post pounders; and,

“d. In placing a post pounder on a high shelf such that [defendant] knew, or should have known in the exercise of reasonable care, that it constituted a hazard.”

During discovery, defendant's assistant store manager, Dutton, explained in his deposition that the photo that he had taken shortly after the accident accurately represented the regular condition of the post pounder display. Dutton also explained that, although the store had adopted no safety procedures specific to the display of post pounders, it did have general safety policies, including walking the aisles each morning and periodically throughout the day to check for safety hazards, conducting monthly safety meetings, and discussing emerging safety issues as needed in its weekly advertising meetings.

Defendant's store manager also explained in his deposition that the store had a total of 15 safety procedures and policies:

“We walked the store in the mornings and evenings and that's every aisle. Anything that needed to be addressed was addressed. If it was something that was out of the norm to where it needed to be put on the shelf, it was done right then and there. If not, then it was put on the work list and we would follow up in the mornings. Normally a couple of hours afterwards. We did short work lists every morning and every evening.

“ * * * * *

“We had specific safety meetings once a month with the safety committee. They write up minutes [at] that. And during mornings, we would have a quick meeting with whoever opened the store and we would address—especially at this location because it was a newer location for us at the time, and we would address anything needed in the morning times, usually. And then we had ad meetings about once a week that the entire store met with in the evening times, most of the time. And we'd go over that and it would [be] an open forum for anybody to discuss anything like that.”

The store manager further explained that all employees were trained to perform “basic housecleaning” as they walked the aisles, including checking for merchandise sticking out from the shelves in an unsafe manner. They were instructed to reshelve any such items. The manager stated that he could not recall whether the subject of post pounder shelving had ever come up at any of those meetings. He also said that, in his 13 years of working for defendant, he did not recall another post pounder ever falling off a shelf.

Plaintiff, in her own deposition, testified that she did not see the post pounder fall. She said that she did not know from which shelf it fell. When asked how the accident happened, she replied that, “[m]aybe there was somebody on the other side of the wall, and it rattled it. Honestly, I'm not really sure. They were sitting kind of weird, I guess.” She said that, just before the post pounder fell, though, she saw, “out of the corner of [her] eye,” the post pounders lying on the shelves. She agreed that the photo that Dutton took accurately portrayed how the post pounders were stacked on those shelves.

Defendant moved for summary judgment. It argued that plaintiff, to prevail, must offer evidence that defendant either knew or should have known that the post pounder that fell on plaintiff's foot had been shelved in a dangerous manner. In this case, defendant argued, plaintiff can offer no such evidence. Plaintiff's response was two-fold: First, she argued that her testimony that the post pounders were “sitting kind of weird, I guess,” coupled with the photograph of the shelves that Dutton took shortly after the accident, sufficed to “create a question of fact as to whether the display was unsafe.” Second, in the alternative, plaintiff asked for a continuance to conduct further discovery.

At the hearing on defendant's motion, the trial court expressed concern that plaintiff had not offered any evidence that defendant knew or should have known that the post pounder that injured her had been placed negligently on the shelving. The court noted that the only evidence in the summary judgment record consisted of plaintiff's testimony and the photograph that Dutton had taken. “It appears,” the court explained, “that simply is not enough.” The court noted that, even assuming for the sake of argument that the photograph could be viewed as illustrating dangerously placed post-pounders,

“there is still a question of who is responsible for placing them in the place where they are. And based on the record in front of me, I think it's all speculation about who was responsible. You know, it's possible that management or the employees stacked them that way. It's possible that another customer had walked by, picked a few of these up, put them back in a haphazard manner or what not. And they are—there just simply is not anything in the record that would tell me who is responsible for that.”

In response to the trial court's remarks, plaintiff argued that she actually did not need to show how the post pounder was shelved or how it fell. According to plaintiff, “I think, you know, it's sort of leaning towards res ipsa loquitur. The way that they are stacked is inherently unsafe. I mean, the way they are stacked speaks for themselves. They are inherently dangerously stacked.”

The trial court rejoined that it was difficult to understand how the doctrine of res ipsa loquitur applied, given that there was no evidence that defendant controlled how the post pounder was stacked on the shelf:

“Here, you know, you never know who the person was who came by and stacked it this way. It could have been a store employee or it could have been a customer—could have been a customer, there a couple of minutes before your client arrived there. And, I mean, that I think takes us out of the res ipsa ball park, because we still have to have—we still have to have a showing that the defendant was responsible for stacking it this way.”

Plaintiff responded that, “[p]erhaps I should not be bringing up—raising the [spector] of res ipsa, but I do think that that is—you know, essentially what my argument is that they are the ones that chose to—chose how to display this.” Defendant asserted that “this whole res ipsa is exactly what he [plaintiff's counsel] is trying to do, and it's exactly what he cannot try to do for the reason that you have identified.”

The trial court ultimately ruled that, although it was inclined to grant defendant's summary...