Johnson v. Short

JurisdictionOregon
PartiesMelvis JOHNSON, Plaintiff-Appellant, v. Robert SHORT and Saundra Short, Defendants-Respondents.
Citation213 Or. App. 255,160 P.3d 1004
Docket Number04P1489.,A128011.
CourtOregon Court of Appeals
Decision Date06 June 2007

Aaron Clingerman argued the cause and filed the brief for appellant.

Michael T. Stone, Hillsboro, argued the cause and filed the brief for respondents.

Before HASELTON, Presiding Judge, and ORTEGA and ROSENBLUM, Judges.

HASELTON, P.J.

Plaintiff appeals, assigning error to the trial court's allowance of summary judgment for defendant property owners in this action based on premises liability. Plaintiff argues that the trial court erred in determining that, regardless of whether plaintiff was an invitee or licensee, defendants were entitled to prevail because plaintiff was aware of the dangerous condition and, thus, defendants had no duty to warn of, or remedy, that condition. We conclude that (1) the uncontroverted facts establish that plaintiff was an invitee, not a licensee, and (2) there are disputed issues of material fact as to whether defendants eliminated the danger posed by steps on defendants' premises and whether plaintiff adequately appreciated the hazard posed by those steps. Consequently, we reverse and remand.

Summary judgment is proper if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact." ORCP 47 C. "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In reviewing the allowance of summary judgment, we view the evidence in the light most favorable to the nonmoving party, here plaintiff, drawing all reasonable inferences in his favor. Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004). Except where specifically noted, the following facts were undisputed.

Plaintiff has worked as a delivery person for United Parcel Service (UPS) since 1977. Defendants have a home in Independence, Oregon, which they use as a residence and not to conduct business. Before October 30, 2001, plaintiff had delivered packages to defendants' home, on average, every month or two for five or six years.

On October 30, 2001, plaintiff went to deliver a package — a birthday present from a third party — to defendants' home. The weather was "yucky," "dewy, drizzly, [and] gray." Plaintiff approached defendants' home from the side, where a set of gray steps led up to the porch. As plaintiff was about to go up the steps, he noticed that they looked "very slick" because they were completely covered in wet moss or algae. Plaintiff was "exceedingly cautious" as he went up the steps. There was another set of steps — a few feet to the left of the first set — that also led to the porch. As addressed more fully below, there is no direct evidence that plaintiff was aware of the second set of steps at the time of his injury, and there is no evidence regarding the condition of those steps at that time.

Upon reaching the porch, plaintiff dropped off the package on defendants' doorstep (defendants were not home at the time) and then went back down by the same route, on the same mossy steps. As he did so, plaintiff held onto the side of the house, in an attempt to keep his balance. Nevertheless, plaintiff slipped and fell, injuring himself.

Plaintiff brought this action, alleging one count of negligence. Specifically, he alleged that he was an invitee on defendants' property and that defendants failed to maintain a reasonably safe premises and warn him of the potential risk of harm.

Defendants moved for summary judgment, raising two alternative arguments. First, defendants asserted that plaintiff was a licensee and, consequently, because the danger presented by the slippery steps "was open and obvious," they owed him no duty either to correct that condition or to warn him of that condition. Second, defendants contended that, even if plaintiff was an invitee, they could not be held liable because (1) by providing an alternative route of "safe" steps, they had, effectively, eliminated or remedied the "unreasonably dangerous" condition of the slippery set of steps and (2) because plaintiff recognized the hazards posed by the slippery steps and used them anyway, any failure to warn of that condition could not have contributed to plaintiff's injuries. Plaintiff responded that the determination of whether he was a licensee or an invitee implicated disputed issues of fact and that, regardless of his status at the time of the injury, defendants were not entitled to summary judgment because there were disputed issues of fact as to whether they had failed to maintain their premises in a reasonably safe condition and to warn him of potential hazards.

The trial court granted the motion for summary judgment. The court determined that it need not address plaintiff's status because, regardless of whether plaintiff had been a licensee or an invitee, defendants were not liable because they had "eliminated" the dangerous condition by providing the alternative set of steps and because plaintiff recognized the danger and proceeded anyway:

"If Johnson came upon the premises as a mere licensee, the only duty owed to him was to warn him of any concealed, dangerous conditions of which the owners had knowledge. It is undisputed that Johnson saw, and fully appreciated the dangerous nature of the steps. As such, the danger was not concealed, and no duty was breached.

"Even if Johnson is regarded as an invitee, the Shorts' only duty was to protect him from `an unreasonable risk of harm' by either `eliminat[ing] the condition that created the risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.' It was obvious that the steps that Johnson chose to use were dangerously slick. There was another set of steps leading to the porch a few feet away. There is no contention that those steps were slippery or in any way dangerous. By providing a safe route, the Shorts had, in effect, eliminated the condition creating the risk. Further, defendants can discharge their duty either by eliminating the condition or by giving adequate warning. Johnson was very familiar with these premises, and was fully aware of the dangerous condition of the steps. Aware of the risks, Johnson chose to ascend the steps. Then he chose to go down the same route."

(Footnote omitted; brackets and boldface in original.)

On appeal, the parties essentially reiterate their arguments before the trial court. As amplified below, we conclude that the uncontroverted evidence establishes, as a matter of law, that plaintiff was an invitee at the time that he slipped on the steps and injured himself. We further determine that there are disputed issues of material fact pertaining to whether defendants breached their duty of care owed to plaintiff as an invitee. Accordingly, we reverse the allowance of summary judgment and remand.

We begin with the question of plaintiff's status. In general, a business invitee is a "person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement (Second) of Torts § 332(3) (1965); see also Cassidy v. Bonham, 196 Or.App. 481, 486, 102 P.3d 748 (2004) (applying that formulation). The requisite invitation can be express or implied by the landowner. Id. Conversely, a licensee is a person who, "with the [possessor's] permission, comes upon a premises for the licensee's own purposes, often social." Nelsen v. Nelsen, 174 Or.App. 252, 256, 23 P.3d 424 (2001).

The distinction is significant because of the differences in the duty of care the possessor of the property owes the visitor, depending on the visitor's status. The possessor's duty to an invitee is to "warn of latent dangers" and to "protect the invitee against dangers in the condition of the premises about which the [possessor] knows or should reasonably have known." Cassidy, 196 Or.App. at 486, 102 P.3d 748 (citation omitted). In contrast, a possessor of land is liable to a licensee for harm resulting from a condition on the land only if

"`(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

"`(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

"`(c) the licensees do not know or have reason to know of the condition and the risk involved.'"

Nelsen, 174 Or.App. at 258, 23 P.3d 424 (quoting with approval Restatement at § 342).

The distinction between "invitation" and "permission" to come upon land can be ephemeral. Nevertheless, in Cassidy, we invoked, as instructive, the Restatement's discussion of that distinction:

"`Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation.'"

Cassidy, 196 Or.App. at 486, 102 P.3d 748 (quoting Restatement at § 332 comment b) (emphasis in original).

Finally, in this context, even if the injured visitor can prove an express or implied invitation to enter, he or she must also establish that the entry was for purposes pertaining to the possessor's "economic...

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7 cases
  • Towe v. Sacagawea Inc.
    • United States
    • Oregon Court of Appeals
    • October 12, 2011
    ...dangers in the condition of the premises about which the [possessor] knows or reasonably should have known.’ ” Johnson v. Short, 213 Or.App. 255, 260, 160 P.3d 1004 (2007) (quoting Cassidy v. Bonham, 196 Or.App. 481, 486, 102 P.3d 748 (2004) (brackets in Johnson )). With respect to a licens......
  • Zumbusch v. Wal-Mart Stores, Inc.
    • United States
    • U.S. District Court — District of Oregon
    • April 17, 2013
    ...Invitee Whether Zumbusch was a licensee or invitee is relevant to the standard of care applicable to Wal–Mart. Johnson v. Short, 213 Or.App. 255, 260, 160 P.3d 1004, 1008 (2007) (the duty of care that a landowner owes to a visitor entering its property depends on the visitor's status). A “l......
  • Pierce v. Atrium TRS V, LLC
    • United States
    • U.S. District Court — District of Oregon
    • June 13, 2018
    ...and appreciated, subjects anowner or occupier to a heightened standard of care. Ault, 281 Or. App. at 850; see also Johnson v. Short, 213 Or. App. 255, 258, (2007) (finding genuine issues of material fact as to whether slippery steps covered by wet moss and algae created unreasonably danger......
  • Voigt v. United States
    • United States
    • U.S. District Court — District of Oregon
    • June 11, 2012
    ...the [possessor] knows or reasonably should have known.'" Towe v. Sacagawea, Inc., 246 Or. App. 26, 34 (2011) (citing Johnson v. Short, 213 Or. App. 255, 260 (2007)). "With respect to a licensee, a possessor of land may be liable for injury resulting from a condition on the land only if(a) t......
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1 books & journal articles
  • §10.1 Premises Liability Generally
    • United States
    • Torts (OSBar) Chapter 10 Premises Liability
    • Invalid date
    ...business invitee but status changed when he stepped away from work area and onto ice rink). In Johnson v. Short, 213 Or App 255, 262-263, 160 P3d 1004 (2007), the court elaborated on the definition of business invitee by quoting the Restatement (Second) of Torts §332, comment e (1965): Busi......

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