Karoblis v. Liebert

• Decision Date: 28 September 1972
• Citation: 501 P.2d 315,263 Or. 64
• Parties: Kim R. KAROBLIS, by her guardian ad litem, Eva Karoblis, Appellant, v. Elmer R. LIEBERT et al., Respondents.
• Court: Oregon Supreme Court

Page 315

501 P.2d 315

263 Or. 64

Kim R. KAROBLIS, by her guardian ad litem, Eva Karoblis, Appellant, v. Elmer R. LIEBERT et al., Respondents.

Supreme Court of Oregon.

Argued and Submitted April 5, 1972.

Decided Sept. 28, 1972.

Fred A. Granata, Portland, argued the cause for appellant. With him on the brief was Phil H. Ringle, Jr., of Ringle & Herndon, Gladstone.

James F. Spiekerman, Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, ^* HOWELL and BRYSON, JJ.

McALLISTER, Justice.

This is an action for damages for injuries sustained by Kim Karoblis, a four and one-half-year-old girl when she fell from a fire escape at defendants' apartment complex where Kim lived with her parents. The case was tried to the court without a jury. When plaintiff rested, defendants moved the court 'to dismiss the case on the grounds that the plaintiff has failed to present sufficient evidence to entitle them to a judgment in their favor without any further evidence on my part that their evidence is insufficient to establish a case to which they would be entitled to a judgment.'

After arguments on the motion, including a colloquy between court and counsel, the court said:

'And certainly, without any criticism intended, I doubt that there's any more--any more evidence that could have been produced on the part of the plaintiff--I just don't feel that they have established any negligence on the part of the defendants in this particular set of circumstances.

'Accordingly, I feel constrained to grant the motion for nonsuit. I feel that's what I must do in this case.'

Thereafter the court entered a judgment of involuntary nonsuit against the plaintiff, which contained the following recital:

'It appearing to the court that plaintiff failed to produce sufficient evidence to establish any negligence on the defendants' part or to constitute a prima facie case against the defendants and it appearing therefore that the motion of the defendants should be allowed'.

The plaintiff appealed from the judgment.

It seems obvious that the trial court, in passing on defendants' motion, which defendants did not designate as a motion for a nonsuit, was weighing the evidence and deciding that the evidence would not support a judgment for plaintiff or that the evidence preponderated in favor of defendant. The plaintiff did not object to the weighing of the evidence by the trial court and did not contend that the trial court could only decide whether the plaintiff had proved a case sufficient to be submitted to a jury if there had been a jury. On the contrary, it is apparent from the colloquy between court and counsel that plaintiff knew that the trial court, in passing on defendants' motion, intended to weigh the evidence and decide whether plaintiff was entitled to recover.

Nevertheless, the plaintiff contends in this court that the only issue before the trial court was 'whether plaintiff had proved a case sufficient to be submitted to a jury.' Plaintiff relies on In re Herdman's Estate, 167 Or. 527, 119 P.2d 277 (1941), which so held. Plaintiff's contention finds support in the form of the judgment and by a concession in defendants' brief that 'a judge in a trial to the court in ruling on a motion for involuntary nonsuit is supposed to determine whether plaintiff has proved a cause sufficient to submit to a jury had there been one'. Although we may be engaging in an academic exercise, we feel obliged, in view of defendants' concession, to decide the question as it has been stated and argued in the briefs, but will have more to say later in this opinion about the procedure which should be followed in future cases.

A motion for a nonsuit admits not only all that the evidence proves, but all that it tends to prove. Plaintiff's evidence must be taken as true together with every inference of fact which a jury might legally draw from it. In re Herdman's Estate, supra at 530, 119 P.2d 277. There was evidence from which the jury could have found the facts hereinafter recited.

Kim was injured when she fell from the fire escape on a two-story multi-unit apartment house adjacent to the unit in which she lived. The fire escape consisted of a 'balcony walkway' constructed along the back of the building at the second story level. The balcony was 31 1/2 wide and 121 feet long. The occupants of the second story apartments could climb onto the balcony only through their apartment windows. There was a railing along the outer edge of the balcony 35 1/2 high, supported by vertical 2 4's spaced four feet apart. At the end of the balcony there was a counterbalanced stairway, which provided access to the ground. Although the stairs were counterbalanced and when pushed into an up position would stay there, they would not return to that position automatically.

There were about 100 apartments in the complex and the families living in the apartments included about 300 children of all ages. Occasionally the fire escape stairways were left in the down position and children played on the fire escape walkways and complaints had been made to the defendants by some of the tenants. There was a fenced-off play area in the apartment house complex, but in June 1968 it was being used for storage of debris and was not available as a playground.

On June 19, 1968, Kim, her younger brother Brent, a six-year-old neighbor girl named Lori, and Lori's younger brother named Donny were playing with a basketball near the end of one of the apartment buildings. The fire escape stairs were down. Kim's brother threw the basketball up on the balcony and the two boys went up the stairs to retrieve it and were followed by Kim and Lori. Kim tripped and fell under the balcony railing onto the pavement some ten feet below. The balcony railing was higher than the top of Kim's head.

There was evidence that for a cost of about $149.33 two boards could have been installed horizontally between the railing and the floor of the balcony from which kim fell so as to leave opening not more than eight inches wide.

The duty of a possessor of land to children, whether invitees or trespassers thereon, has been thoroughly considered in Pocholec v. Giustina, 224 Or. 245, 355 P.2d 1104 (1960), and Bosin v. Oak Lodge San. Dist., 251 Or. 554, 447 P.2d 285 (1968), and need not be further discussed here. It is sufficient to say that we have embraced the rule as stated in 2 Restatement of Torts 2d, § 339, which we will not quote again here. In Pocholec we held that '(i)t is for the jury to decide whether the landowner has met the minimum standard of care required for immunity from liability. In doing so, they are required to weigh the utility of the defendant's use and maintenance of his premises and the burden of eliminating the danger against the risk of harm to children.' 224 Or. at 261, 355 P.2d at 1111. It is clear to us that the evidence in this case, viewed in the light most favorable to the plaintiff, made a question for the trier of fact.

Defendant argues that the balcony walkway was intended for use as a fire escape only, and that whether there was an unreasonably dangerous condition must be determined in light of this intended use. Children frequently make use of conditions or appliances in ways which their owners never intended; the propensity of children to meddle and to misuse is at the heart of many of the cases in this area of the law. It is not the intended use of an area which is determinative under the Restatement test, but whether the owner knows or has reason to know that children will trespass there, and whether he realizes or should realize that the condition involves an unreasonable risk of harm to children.

In order to hold in defendant's favor we would have to hold that the condition described above was not, as a matter of law, unreasonably dangerous. The Pocholec case refused to hold that certain categories of physical hazards will not give rise to liability, describing that approach as unworkable. Instead, the landowner's liability is to be determined by general negligence principles, modified by his special duties to children, and it is ordinarily for the jury to decide whether the landowner has met the minimum standard of care in a particular case. 224 Or. at 260--261, 355 P.2d 1104.

Since plaintiff proved a prima facie case we must reverse the judgment of nonsuit and remand the case for further proceedings not inconsistent with this opinion. The trial court must require defendants to put on their evidence or rest their case and then, as the trier of fact, decide the issues. It is so ordered.

We have concluded that the procedure followed by the trial court in this case should not be used in similar cases in the future. ORS 18.230 provides:

'A judgment of nonsuit may be given against the plaintiff:

'(3) On motion of the defendant, * * * when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury.'

It will be noted that the statute refers specifically to the sufficiency of the evidence to go to the jury. No statute makes this procedure applicable to nonjury cases. Nevertheless, this court has held that the same rule applies in bench trial as in jury trials. We think that holding was a mistake as this case illustrates.

A number of jurisdictions, like this one, have held the nonsuit procedure available in trials to the court under the same rules as apply in jury trials. See 89 C.J.S. Trial § 595d pp. 396--397; 2 Bancroft, Code Practice and Remedies 2076--2077, § 1609. Others, however, have held that the judge in such cases, who will have to weigh the evidence in any event, may do so at the close of plaintiff's case. If he finds that plaintiff has failed to carry his burden of proof, the judge may enter a final judgment for defendant on the merits. Leading cases are Lambuth v. Stetson & Post Mill Co., 14...