Jennewein v. McImetro Access Transmission Servs., LLC

• Citation: 481 P.3d 939,308 Or.App. 396
• Decision Date: 06 January 2021
• Docket Number: A166142
• Parties: Amanda JENNEWEIN, Plaintiff-Appellant, v. MCIMETRO ACCESS TRANSMISSION SERVICES, LLC, et al., Defendants, and Verizon Enterprise Solutions, LLC and Verizon Long Distance, LLC, Defendants-Respondents.
• Court: Court of Appeals of Oregon

308 Or.App. 396

481 P.3d 939

Amanda JENNEWEIN, Plaintiff-Appellant,

v.MCIMETRO ACCESS TRANSMISSION SERVICES, LLC, et al., Defendants,andVerizon Enterprise Solutions, LLC and Verizon Long Distance, LLC, Defendants-Respondents.

A166142

Court of Appeals of Oregon.

Argued and submitted February 26, 2019.

January 6, 2021

Mark McDougal argued the cause for appellant. Also on the opening brief were Gregory Kafoury and Kafoury & McDougal. Also on the reply brief was Natalie McDougal.

Elizabeth D. MacGregor argued the cause for respondents. Also on the brief were Karlek S. Johnson and Lorber, Greenfield, & Polito, LLC.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

JAMES, J.

Plaintiff appeals from a grant of summary judgment in favor of defendants on her single claim for negligence arising from her walking into a utility cabinet in a hallway. The trial court determined that the type of harm suffered in the collision—a head injury—was not foreseeable from defendant's conduct in installing the cabinet at knee level in the walkway. As we will explain, the trial court construed the type of foreseeable harm too narrowly, and we accordingly reverse.

The material facts are not in dispute. Plaintiff collided with a data cabinet that had been affixed to the wall where a hallway turned a corner in the backroom of the Apple Store in which she worked. Despite a work order that specified that the cabinet was to be installed nine feet above the floor, defendants installed the cabinet one or two feet off the floor—at knee height to an average-size adult rounding the corner. However, the cabinet was later relocated by a third party, Hoffman Construction, unbeknownst to defendants, to five to six feet above the floor—at head height to someone of that size rounding the corner.

Sometime after Hoffman moved the cabinet, plaintiff struck her head on it. Plaintiff brought suit, alleging that defendants had been negligent:

"a. In installing and maintaining a wall-mounted metal box such that the box obstructs an area where people walk; b. In installing and maintaining a wall-mounted box such that the corner of the box hangs where it might contact the head of a person; c. In installing and maintaining a wall mounted metal box near a corner of a wall; d. In failing to place adequate safeguards on or around the box; e. In failing to adequately warn Plaintiff of the danger posed by the box."

Defendants moved for summary judgment arguing that the harm suffered by plaintiff—a head injury—was not foreseeable from their conduct of placing the cabinet at knee height. The trial court agreed:

"[R]easonable jurors could find that defendants were negligent in placing the cabinet at shin level rather than at 9 feet above the floor, as specified in the work order. But they could not also find that defendants' negligence exposed plaintiff to risk of harm that befell her, a bump on the head.

"Perhaps defendants knew or should have known the cabinet would have to be re-positioned to avoid bruised shins. But there is no evidence that they knew or should have known it would be re-positioned to head height, thus creating new risks, including the one that resulted in plaintiff's injury."

The trial court further stated that defendants' initial mis-installation caused Hoffman's later re-installation in a but for sense, but that was "not enough * * * to hold defendants liable for plaintiff's injury."

Plaintiff appeals from the trial court's grant of summary judgment in favor of defendants. On appeal, the parties largely renew the arguments made before the trial court. Their arguments are divided into two parts—causation and foreseeability of harm—a division that, as we will explain, overlaps. Plaintiff assigns error to the trial court's conclusion that defendants' conduct was not a cause of plaintiff's injuries, arguing that "[t]o reach that conclusion, one must narrowly construe and define causation." Plaintiff argues that defendants are a "but for" cause of plaintiff's injuries, and that suffices:

"[A] jury could find that defendants' initial negligent installation was simply improperly fixed by others. No harm would have occurred to plaintiff if defendants had not been negligent to start with."

Further, plaintiff argues that "[w]hether the injuries to the plaintiff in this case were foreseeable as a result of defendants' initial installation of the cabinet, and whether the installation was a cause of harm to the plaintiff, are both classic jury issues."

Defendants argue their initial installation, operating alone, would not have caused plaintiff's injuries; thus, it was not a substantial factor in causing plaintiff's injuries. Defendants further argue that the type of injuries suffered by plaintiff were not a foreseeable type of harm from their actions. At oral argument before this court defendants argued that here, foreseeability requires particularity as to the location on the body where a collision might occur. Thus, according to defendants, it is not enough to foresee a bodily collision generally; it must have been foreseeable from defendants' conduct that someone would hit their head and suffer injury.

When reviewing a grant of summary judgment, we consider that the nonmoving party has the burden of producing evidence on any issue raised in the motion as to which that party would have the burden of persuasion at trial. ORCP 47 C. We review the record in the light most favorable to the nonmoving party, giving them the benefit of all reasonable inferences. ORCP 47 C; Jones v. General Motors Corp. , 325 Or. 404, 420, 939 P.2d 608 (1997). Ultimately, we will affirm a grant of summary judgment only if the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lewis v. Carson Oil Co. , 204 Or. App. 99, 101, 127 P.3d 1207, rev. den. , 341 Or. 245, 142 P.3d 73 (2006) (citing Swisher v. Albertson's, Inc. , 186 Or. App. 734, 736, 64 P.3d 1212 (2003) (holding same)).

The parties' arguments present two interrelated questions regarding plaintiff's claims. The first concerns factual causation. Defendant argues that it was entitled to summary judgment because, as a factual matter, the harm that befell plaintiff did not result from the initial placement of the cabinet but, rather, the move to a height where plaintiff would bump her head. For that reason, defendant argues that its initial installation cannot be said to be a substantial factor in plaintiff's injuries.

In Lasley v. Combined Transp., Inc. , the court reiterated that it had

"abolished not only the terms but also the concepts of ‘proximate’ and ‘legal’ cause. * * * When a defendant's negligence is a factual cause of harm to the plaintiff, the defendant is subject to liability to the plaintiff as long as the harm that the plaintiff suffered was a reasonably foreseeable result of the defendant's negligence."

351 Or. 1, 6-7, 261 P.3d 1215 (2011). Therefore, "the concept of causation (determined as a purely factual matter) is a separate concept from that of liability (determined by foreseeability and not by ‘proximate’ or ‘legal’ cause)." Id .

The "substantial factor" test is one of factual cause, which is "whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence." Id . (quoting Sandford v. Chev. Div. of Gen. Motors , 292 Or. 590, 606, 642 P.2d 624 (1982) ). On this record, a reasonable juror could conclude that defendants' role in the initial installation of the cabinet in fact played a role in the injury. If not for the negligent installation in the walkway, the cabinet would not have been relocated to the place where plaintiff was injured. In Lasley , the court left open the possibility of a

"circumstance in which one defendant's act is a factual cause of a plaintiff's harm in the sense that the harm would not have occurred absent the defendant's conduct, but in which that defendant's conduct is so insignificant, when contrasted with the conduct of a second defendant, that the first defendant's conduct should not be deemed a cause of the plaintiff's harm."

Id. at 10, 261 P.3d 1215. This is not that case. A reasonable juror would not be compelled, on this record, to conclude that defendant's conduct was so insignificant, when contrasted with that of Hoffman, that it was not a substantial factor in the injury that befell plaintiff.¹ See Mason v. BCK Corp. , 292 Or. App. 580, 591, 426 P.3d 206, 216, rev. den. , 363 Or. 817, 431 P.3d 420 (2018) (explaining that the "substantial factor" test has been used in tort law to describe "the degree of participation that would subject any single tortfeasor to liability," and that "[t]he term substantial * * * is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable [people] to regard it as a cause, using the word in the popular sense, in which there always lurks the idea of responsibility" (internal quotation marks and citations omitted)).

Next, we turn to the central question in this case—foreseeability of the harm that befell plaintiff. In addressing that question, we observe that Oregon appellate courts have consistently noted that some issues are ill-suited for resolution on summary judgment—foreseeability chief among them. We have emphasized that "[o]rdinarily, foreseeability is a fact question for the jury." McPherson v. Oregon Dept. of Corrections , 210 Or. App. 602, 613, 152 P.3d 918 (2007). "Foreseeability, as an ‘empirical question[ ],’ must be submitted to a jury, except ‘in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable.’ " Id. at 614, 152 P.3d 918 (quoting Donaca v. Curry Co. , 303 Or. 30, 38, 734 P.2d 1339 (1987) ). Foreseeability is case specific; "[n]o bright line rules exist. Fact-matching is of limited utility. Unforeseeability as a matter of law...