Johnson v. Short
Jurisdiction | Oregon |
Parties | Melvis JOHNSON, Plaintiff-Appellant, v. Robert SHORT and Saundra Short, Defendants-Respondents. |
Citation | 213 Or. App. 255,160 P.3d 1004 |
Docket Number | 04P1489.,A128011. |
Court | Oregon Court of Appeals |
Decision Date | 06 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.
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:
(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).
Nelsen, 174 Or.App. at 258, 23 P.3d 424 ( ).
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:
""
Cassidy, 196 Or.App. at 486, 102 P.3d 748 ( )(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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