Jensen v. Kacy's Markets, Inc.

• Jurisdiction: Oregon
• Parties: Elizabeth JENSEN and Daniel S. Ferguson, Personal Representative of the Estate of Isak J. Jensen, deceased, Appellants, v. KACY'S MARKETS, INC., a California corporation, doing business as Kacy's Markets, Northrop Industries of California, a California corporation, Northrop Architectural Systems, Inc., and Douglas N. Thomas, doing business as Automatic & Manual Door Closers, Respondents. Douglas N. THOMAS, Third Party Plaintiff, v. NORTHROP INDUSTRIES OF CALIFORNIA, a California corporation, and Northrop Architectural Systems, Inc., Third Party Defendants. 85-2317-; CA A44204.
• Citation: 91 Or.App. 285,754 P.2d 624
• Docket Number: J-1
• Court: Oregon Court of Appeals
• Decision Date: 01 July 1988

Page 624

754 P.2d 624

91 Or.App. 285

Elizabeth JENSEN and Daniel S. Ferguson, Personal Representative of the Estate of Isak J. Jensen, deceased, Appellants, v. KACY'S MARKETS, INC., a California corporation, doing

business as Kacy's Markets, Northrop Industries of

California, a California corporation, Northrop Architectural

Systems, Inc., and Douglas N. Thomas, doing business as

Automatic & Manual Door Closers, Respondents.

Douglas N. THOMAS, Third Party Plaintiff, v. NORTHROP INDUSTRIES OF CALIFORNIA, a California corporation, and Northrop Architectural Systems, Inc., Third

Party Defendants.

85-2317-J-1; CA A44204.

Court of Appeals of Oregon.

Argued and Submitted March 16, 1988.

Decided May 18, 1988.

Reconsideration Denied July 1, 1988.

William H. Ferguson, Medford, argued the cause for appellants. With him on the briefs was Grant, Ferguson, Carter, P.C., Medford.

Larry B. Workman, Medford, argued the cause for respondent Kacy's Markets, Inc. With him on the brief were Steven H. Pratt and Frohnmayer, Deatherage, deSchweinitz, Pratt & Jamieson, P.C., Medford.

GRABER, Judge.

Elizabeth Jensen (Jensen) was entering Kacy's Market when an automatic sliding door unexpectedly closed on her cane. She fell and was injured. She and the personal representative of her husband's estate brought this action against the store, the manufacturer of the door, and the vendor/installer of the door. Plaintiffs claimed, among other things, that each defendant was negligent; defendants alleged that Jensen was contributorily negligent. The jury found that none of the defendants was negligent. ¹ Plaintiffs appeal, and we affirm.

Plaintiffs claim that the trial court erred in giving this instruction: ²

"If there are conditions on premises which you find to be unreasonably dangerous as that expression is defined in these instructions, the possessor of the premises must exercise reasonable care to protect invitees from such condition, whether they are created by the possessor or by an independent contractor.

"I have just instructed you about the general duty of care owed by possessors of premises to invitees. However, that duty applies only to conditions on the premises that create an unreasonable risk of harm to an invitee. If the condition complained of by Plaintiff is a condition that people would encounter and would be expected to take care of themselves without further precaution by the possessor of the premises, the condition is not considered unreasonably dangerous because the likelihood of harm is slight. A condition is only considered unreasonably dangerous when it cannot be encountered with reasonable safety, even if the danger is known and appreciated.

"A condition is not unreasonably dangerous if the hazard arising from it would be known and understood by reasonable persons expected to encounter the condition."

Plaintiffs specifically excepted to only two portions of the instruction. Their explanation to the trial court made clear that they in fact objected to the entire passage because, as a whole, it impliedly raised "assumption of the risk" as a defense. Therefore, plaintiffs' exceptions preserved the assigned error. ORCP 59 H; Mariman v. Hultberg, 82 Or.App. 535, 539, 728 P.2d 919 (1986).

Plaintiffs first contend that the instruction erroneously made occupiers of business premises liable to invitees only for conditions that create an unreasonable risk of harm to the invitee. That is a correct statement of the law and was not error. Woolston v. Wells, 297 Or. 548, 558, 687 P.2d 144 (1984).

Plaintiffs then argue that the instruction raised assumption of risk as a defense by defining defendant's duty in terms of Jensen's actions. Oregon has abolished assumption of risk and has adopted comparative fault. If the instruction implied to the jury what plaintiffs claim that it did, it was reversible error.

"Instructing the jury that defendant has no liability because of actions of the plaintiff, or that defendant is liable only if a reasonable person entering the land would not realize a danger or would not protect himself against it, frustrates the purpose of instituting a system of comparative fault. The comparison of the parties' fault will only be meaningful if each party's fault is determined without reference to the other party or to a class or group which includes the other party." Woolston v. Wells, supra, 297 Or. at 556, 687 P.2d 144.

See also Nylander v. State of Oregon, 292 Or. 254, 260, 637 P.2d 1286 (1981).

Instructing the jury in a case such as this is difficult, because the question of whether a condition creates an ...