Kilgore v. People's Sav. & Loan Ass'n

• Decision Date: 02 October 1991
• Citation: 814 P.2d 163,107 Or.App. 743
• Parties: Kenneth A. KILGORE, Personal Representative of the Estate of Jodi Lynn Kilgore, Respondent, v. PEOPLE'S SAVINGS & LOAN ASSOCIATION; and Lester Real Estate, Inc., an Oregon corporation, Appellants. 8803-31741; CA A61609.
• Court: Oregon Court of Appeals

Page 163

814 P.2d 163

107 Or.App. 743

Kenneth A. KILGORE, Personal Representative of the Estate of Jodi Lynn Kilgore, Respondent, v. PEOPLE'S SAVINGS & LOAN ASSOCIATION; and Lester Real

Estate, Inc., an Oregon corporation, Appellants.

8803-31741; CA A61609.

Court of Appeals of Oregon.

Argued and Submitted March 13, 1991.

Decided June 19, 1991.

Reconsideration Denied Oct. 2, 1991.

Ralph C. Spooner, Salem, argued the cause for appellants. With him on the briefs were Ken L. Ammann and Spooner & Much, P.C., Salem.

John Paul Graff, Portland, argued the cause for respondent. With him on the brief were Charles Merten, Graff & O'Neil and Merten & Associates, Portland.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Plaintiff brought this wrongful death action alleging violations of Oregon's Residential Landlord and Tenant Act (RLTA), ORS 90.100 et seq., ¹ and common law negligence. Defendants appeal the judgment in plaintiff's favor entered on a jury verdict. We affirm.

Plaintiff's decedent died in a fire on November 25, 1986, at a house owned by defendant People's Savings and Loan Association and managed by defendant Lester Real Estate, Inc. The house was leased on a month to month basis to four Eastern Oregon State College students. It had a wood stove. On the evening of the fire, decedent attended a party at the home and the stove was used. While the occupants were asleep, a stuffed chair, which had been left close to the stove, ignited. At the time the fire occurred, decedent was asleep in a bed on the second floor. The occupant of the room in which decedent was sleeping was awakened by the heat on the floor. He awakened decedent and, when he left the room to awaken the others, she was up and putting on her Levis. After he left the house, decedent's screams were heard. She died in the bedroom of smoke inhalation. None of the occupants heard a smoke detector go off.

Defendants first argue that the trial court abused its discretion in allowing plaintiff to introduce in evidence photographs of decedent's burned body. They argue that the photographs were not related to any issue in the case, because decedent died from smoke inhalation, not burning, and that the pictures were highly prejudicial.

Plaintiff claimed damages for the pain and emotional distress that decedent experienced before she died. The pathologist who testified formed his opinion by relying on the pictures, which show the position of, and clothing on, decedent's body. He testified that decedent had regained consciousness, stood up, put on her Levis and zipped them. She then became confused and disoriented from inhaling carbon monoxide from the fire, lost consciousness and died. He testified that the burns occurred after decedent lost consciousness. The pictures were relevant to show that she did not die in her sleep and that, contrary to defendants' contention, it was the effects of carbon monoxide and not her consumption of alcohol that impaired her ability to escape from the bedroom. The pictures were relevant to the issues of whether decedent suffered pain and emotional distress and the extent of damages on that claim. Their prejudicial effect did not outweigh their probative value, and the trial court did not abuse its discretion in admitting them. See Carter v. Moberly, 263 Or. 193, 501 P.2d 1276 (1972).

Defendants next assign error to the trial court's denial of their motion for partial directed verdict at the close of plaintiff's case, arguing that there was insufficient evidence to support plaintiff's allegations that defendants were negligent or in violation of RLTA because the house did not have electrical smoke detectors. ² After denial of their motion, defendants proceeded to present their case and, at the close of trial, renewed their motion. They do not assign error to the denial of the second motion. However, if a defendant proceeds after the denial of a motion for a directed verdict at the close of a plaintiff's case, our review is not limited to the evidence produced by the plaintiff. We consider all the evidence and review it in the light most favorable to the plaintiff. See Brown v. J.C. Penney Co., 297 Or. 695, 688 P.2d 811 (1984); Roach v. Kelley Health Care, 87 Or.App. 495, 501 n. 7, 742 P.2d 1190, rev. den. 304 Or. 437, 746 P.2d 1166 (1987).

Although RLTA itself does not specifically require smoke detectors, it does require that a landlord maintain a dwelling unit in a habitable condition at all times. ORS 90.320(1). A unit is considered uninhabitable if it "substantially lacks * * * [s]afety from the hazards of fire[.]" ORS 90.320(1)(j). Under ORS 479.255(1), every dwelling unit "occupied by a tenant * * * shall contain an approved and properly functioning smoke detector * * * installed in accordance with the rules of the State Fire Marshall * * *." Plaintiff alleged that the house was "uninhabitable," in violation of ORS 90.320, in that it lacked safety from the hazards of fire because, inter alia, it "[d]id not have smoke alarms operated by electrical wiring, although commercial electricity was used in the unit[.]" ³

Plaintiff also alleged that defendants were negligent, because they knew or should have known that the unit was unsafe from the hazards of fire, in that "the unit was without functioning smoke alarms and/or defendants knew or should have known the tenants made them inoperable by removing the batteries," and that "the unit had no smoke alarms directly wired to a source of AC power, although such power was in use in the unit."

Plaintiff's theory was that defendants knew, or should have known, that the house had a wood stove, which the tenants used to provide heat; that the house either had no smoke detectors or that there were battery powered detectors; that there was a strong likelihood that, if there were battery powered detectors, they would not be operable, because tenants frequently took the batteries from them; and that electric powered detectors are available. Therefore, the house was not safe from hazards of fire, because it did not have electric powered detectors.

There was evidence sufficient to present a jury question on plaintiff's theory. The evidence was conflicting as to the existence of detectors in the house. Some tenants did not recall any. The rental agent testified that there were battery powered detectors and that he was aware that tenants removed batteries from smoke alarms about 20 percent of the time. Despite that knowledge, the agent had not tested the alarms between May, 1986, when the house was rented to the students, and November, when the fire occurred. The rental agent relied on tenants to notify him of failed batteries. Lester, broker for defendant Lester Real Estate, Inc., testified that tenant removal of batteries from the alarms was an "extensive problem" and that, in his inspection of vacated units, he "invariably" found that batteries had been removed from the alarms for use in radios and calculators or just to stop the beeping noise when the batteries started to run down. There was additional evidence that electric powered detectors are readily available, commonly used and cost no more than battery detectors, once they are installed. The rental agent testified that he had authority to install electric powered detectors in addition to battery powered ones but preferred battery powered detectors, because they did not go out in case of power failure. There was also evidence that a functioning detector probably would have awakened occupants of the house before the occupant of the room in which decedent slept was awakened by heat.

From that evidence, the jury could infer that the house had no detectors or that, even if the house had detectors, tenants' removal of batteries from detectors was a substantial problem and that defendants were aware of the extent of the problem. The jury could further infer that there was an alternative to battery powered detectors but that defendants chose not to use them because of the installation expense. From that evidence, the jury could conclude that the house had no functioning battery powered detectors; that, given the nature of the difficulties with battery detectors, defendants should have installed electric powered detectors; and that their failure to do so made the house unsafe from the hazards of fire. The trial court did not err in denying defendants' motion for partial directed verdict.

Defendants also contend that the alleged negligent failure to install electric powered detectors was not supported by any evidence establishing that their choice of detectors was causally related to the fire and to decedent's death. ⁴ However, there was testimony from the LaGrande Fire Marshall and the State Deputy Fire Marshall that, if there had been "an operable smoke alarm" on the wall above the landing in the stair well, it would have detected smoke and sounded before any smoke reached the bedroom where decedent was sleeping. The jury was entitled to infer from the evidence that, if there had been an electric powered detector, it would have awakened the occupants in sufficient time to escape and that defendants were negligent in not providing an electric powered detector, given their knowledge of the difficulties with battery powered ones. ⁵

Defendants next challenge three instructions on the duty of care owed by a landlord. They argue that it was error to instruct the jury:

"You are instructed that an owner and landlord of a house rented on a month to month basis must ascertain the condition of his premises and exercise reasonable care to protect renters and their guests from dangers foreseeable from the layout and use of the premises.

"You are instructed that an owner and landlord has a duty to warn his renters of dangers that he knows or with responsible inspection could ascertain with respect to conditions of and on his property.

"You are instructed that the duty of an owner and landlord to make...