Hinchman v. UC Mkt., LLC

• Decision Date: 22 April 2015
• Docket Number: 120404915,A153970.
• Citation: 348 P.3d 328,270 Or.App. 561
• Parties: Karen S. HINCHMAN, Plaintiff–Appellant, v. UC MARKET, LLC, an Oregon limited liability company, Defendant–Respondent.
• Court: Oregon Court of Appeals

270 Or.App. 561

348 P.3d 328

Karen S. HINCHMAN, Plaintiff–Appellant

v.UC MARKET, LLC, an Oregon limited liability company, Defendant–Respondent.

120404915

A153970.

Court of Appeals of Oregon.

Submitted Jan. 9, 2015.

Decided April 22, 2015.

Timothy J. Vanagas filed the brief for appellant.

Kathryn Reynolds Morton filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

Opinion

LAGESEN, J.

Plaintiff visited a convenience store, defendant UC Market, LLC, to purchase a newspaper and lottery ticket. While plaintiff was inside, high winds caused the floor mat located at the exterior doorway of the business to fold over on itself. As plaintiff was leaving the premises, she tripped over the mat and sustained an elbow fracture and other injuries. Plaintiff sued defendant, alleging that defendant was negligent in failing to ensure that the store was safe for reasonable use by business invitees and, in particular, in failing to secure the floor mat to the ground. The trial court granted summary judgment in favor of defendant, concluding that plaintiffs ORCP 47 E affidavit was insufficient to create a genuine issue of fact with respect to whether defendant “knew or should have known” of the hazard posed by the floor mat. We reverse and remand, concluding that, in the light of plaintiff's specific theory of the case, the summary judgment record was sufficient to preclude summary judgment.

I. FACTS

Consistent with our standard of review, discussed below, we state the facts in the light most favorable to plaintiff, the nonmoving party. Plaintiff was a frequent customer of defendant, a convenience store located in east Multnomah County. On a morning in early February 2012, plaintiff visited the store to make her regular purchase of a newspaper and a Megabucks lottery ticket. As usual, plaintiff entered the premises by stepping on and over a floor mat located at the exterior doorway of the store. A surveillance video indicates that the mat, which was positioned at an angle in front of the door, was of lightweight design and was not taped, glued, or otherwise secured to the ground.

The east wind was blowing quite hard that day. While plaintiff was inside the store, the wind lifted the edge of the mat, causing it to fold in half, doubling over on itself. After making her purchases, plaintiff turned to leave the store. As she was exiting, plaintiff tripped over the folded-over mat and sustained injuries. A surveillance camera captured the incident.

Plaintiff sued defendant for negligence. She alleged that defendant was negligent in “failing to ensure the store entrance was free of obstructions and hazards for reasonable use by business invitees” and, in particular, “failing to ensure the floor mat stayed flat on the floor by use of glue or otherwise.” Plaintiff requested economic damages in the sum of $50,000 and noneconomic damages in an amount not to exceed $160,000.

Defendant moved for summary judgment on the ground that any unreasonable danger posed by the mat was limited to the period during which the fabric folded over on itself, and, because plaintiff could present no evidence that defendant knew or should have known that the mat was prone to folding, or did fold, in that manner, plaintiff could not prove that defendant's conduct had deviated from the standard of care. In particular, defendant emphasized the undisputed facts that (1) defendant had no actual knowledge of any prior instances in which the mat had folded over, due to heavy wind or otherwise; and (2) the mat was lying flat when plaintiff entered the store, and it did not fold over until sometime during the very short period that plaintiff was inside. In the alternative, defendant asserted that it was entitled to summary judgment because the condition of the floor mat was not unreasonably dangerous as a matter of law.

Plaintiff relied on the following evidence in opposition to defendant's motion: (1) the surveillance video recording of her fall; (2) records reflecting wind speeds on and around the date of the incident; and (3) an ORCP 47 E affidavit from plaintiff's attorney.¹ The ORCP 47 E affidavit averred generally that plaintiff “ha[d] retained herein an unnamed expert who is available and willing to testify to admissible facts and/or opinions creating a question of fact in this matter.” In response, defendant argued that plaintiffs submission of an ORCP 47 E affidavit was insufficient to avoid summary judgment, because expert opinion testimony would be neither necessary nor helpful to prove negligence under the circumstances.

At a hearing on the motion, plaintiff clarified her theory of the case. She explained that her position was not, as defendant presumed, that, “once the mat flipped over, [defendant] should have known of that occurring.” Rather, plaintiff asserted that the analysis should “preced[e] the flipping over of the mat” and should instead ask “whether it was negligent on the part of [defendant] to have placed a mat outside the store, the size that it was, the weight that it was,” in the light of the local wind conditions. In view of that theory, plaintiff argued that her ORCP 47 E affidavit was sufficient to create a genuine issue of material fact with respect to whether defendant had deviated from the relevant standard of care. Plaintiff told the court:

“And that's the issue, Your Honor, that my expert speaks to. It was simply negligent. Reasonable minds could differ whether it was negligent to place a lightweight mat outside a store without gluing it down, without taping it down, without doing anything else in an area where the winds are such that it's going to lift it up and flip it over. And—and that—that's simply what the analysis, in my mind, should be.

“ * * * * *

“[There will be] testimony that * * * this is an improper application. Should have been glued down, should have been taped down, should have * * * used a different weight mat, could have been put inside the store.

“There are a variety of things that could have been done to avoid a situation happening, and that's what the expert will attest to. And reasonable minds could differ on whether that should have been done in that fashion or not.”

(Emphasis added.)

The court granted summary judgment to defendant, explaining:

“I believe this case is controlled by Deberry [v. Summers, 255 Or.App. 152, 296 P.3d 610 (2013),] and other cases dealing with the effect of a Rule 47 E affidavit or declaration, and I do not believe that this is a case in which there is an expert issue that could create an issue of fact.

“ * * * I find that [the declaration] is not sufficient to overcome defendant's evidence, which establishes the absence of any facts on which an objectively reasonable juror could find in favor of plaintiff. So for that reason, I'm granting the motion.”

Plaintiff appeals, assigning error to the grant of summary judgment to defendant.

On appeal, plaintiff argues that the trial court erred to the extent that it required her to show that defendant “knew or should have known” that the floor mat had folded over as a result of the wind. Plaintiff's position throughout this litigation has been that defendant was negligent not for failing to discover and take steps to protect her from the hazard posed by the folded-over floor mat but, rather, in creating the hazard by (1) choosing a floor mat of improper weight for the conditions, (2) locating the floor mat at the exterior doorway of the store, and (3) failing to secure the floor mat. Plaintiff next contends that her ORCP 47 E affidavit was sufficient to defeat defendant's motion for summary judgment, because expert testimony was “needed” in this case, given her particular theory of negligence, to show “the wind velocity on the day of the incident and how the wind interacted with the floor mat, given the location of the floor mat, its lightweight design, and the fact it wasn't glued down.”²

Defendant responds that the trial court correctly granted summary judgment in its favor. First, defendant suggests that plaintiff's theory of the case is not cognizable under Oregon law. Defendant further argues that expert testimony on “wind velocity” and “how the wind interacted with [the] floor mat” is neither necessary nor even helpful to that determination. (Internal quotation marks omitted.) Defendant asserts that, under those circumstances, plaintiffs ORCP 47 E affidavit did not preclude the trial court from granting summary judgment to defendant.

II. STANDARD OF REVIEW

We review a trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. That standard is satisfied if, viewing the relevant facts and all reasonable inferences in the light most favorable to the nonmoving party—here, plaintiff—“no objectively reasonable juror could return a verdict for [plaintiff] on the matter that is the subject of the motion for summary judgment.” Id.; Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001) (quoting ORCP 47 C).

III. ANALYSIS

Under Oregon law, storekeepers must “make their property reasonably safe for” their customers or invitees. Hagler v. Coastal Farm Holdings, Inc., 354 Or. 132, 140–41, 309 P.3d 1073 (2013) (quoting Hughes v. Wilson, 345 Or. 491, 497, 199 P.3d 305 (2008) ). To that end, storekeepers have a duty to “exercise due care to discover conditions on the premises that create an unreasonable risk of harm to invitees or warn them of the risk so as to enable them to avoid the harm.” Hagler, 354 Or. at 141, 309 P.3d 1073 ; see Woolston v. Wells, 297 Or. 548, 557–58, 687 P.2d 144 (1984). As framed by plaintiff, the question in this case is whether, viewing the record in her favor, a reasonable trier of fact could find that defendant's use of a lightweight, unsecured floor mat at the exterior doorway of the store posed an unreasonable danger to customers.

As an initial matter, we rej...