Kirby v. Sonville

• Decision Date: 08 May 1979
• Citation: 286 Or. 339,594 P.2d 818
• Parties: William KIRBY, Appellant, v. Fern SONVILLE, Respondent. TC 94450; SC 25459. . *
• Court: Oregon Supreme Court

Page 818

594 P.2d 818

286 Or. 339

William KIRBY, Appellant, v. Fern SONVILLE, Respondent.

TC 94450; SC 25459.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Nov. 1, 1978.

Decided May 8, 1979.

[286 Or. 340-A] Michael J. Gentry, of Tooze, Kerr, Peterson, Marshall & Shenker, Portland, argued the cause and filed a brief for appellant.

Walter H. Sweek, Portland, argued the cause for respondent. On the brief were Jay D. Enloe, and Vergeer, Roehr & Sweek, Portland.

LENT, Justice.

This is an action for damages for personal injuries suffered by plaintiff as the result of a fall which occurred while he was helping defendant disconnect a pipe from a water pump. Plaintiff contends that his injuries were caused by negligence of the defendant. The trial court entered a judgment of involuntary nonsuit, and upon plaintiff's appeal we reverse and remand for trial.

Plaintiff alleges that he was "employed" by defendant to assist defendant in detaching certain plastic pipe from an irrigation pump located on a steep river bank on defendant's property. He alleges that while defendant and he were performing this work the pipe suddenly became uncoupled from the pump as a result of negligence of the defendant. The specific charges of negligence are as follows:

"1. In directing and requiring plaintiff to pull the pipe from the pump connection;

"2. In refusing to allow plaintiff to sever the pipe rather than to pull it loose;

"3. In directing plaintiff to stand with his back toward the drop-off while removing the pipe;

"4. In failing to provide plaintiff with a rope, support, or other safety device while removing the pipe;

"5. In pouring hot water over the pipe joint while directing plaintiff to pull on the pipe."

By her answer defendant admitted that while on defendant's premises, and in the process of detaching a plastic pipe from a pump located on the premises, plaintiff fell over the river bank. She denied, however, that plaintiff was "employed" to do the work and all other affirmative allegations of plaintiff's complaint. The defendant alleged that plaintiff had volunteered to assist defendant in removing the pipe as a favor to defendant and that in the process of removing the pipe, plaintiff himself was guilty of negligence in certain particulars including, among others, "In voluntarily assuming the risk involved in the operation." For a second affirmative defense, defendant charged that plaintiff "voluntarily assumed the risk involved in said operation." Defendant's affirmative allegations were put in issue by plaintiff's reply.

In an appeal from a judgment of involuntary nonsuit, we view the evidence in the light most favorable to plaintiff. Viewed in that light, the following facts are established by the evidence. Plaintiff was a handyman performing odd jobs when requested. He obtained jobs by performing tasks for people for whom he had performed similar tasks in the past and by word-of-mouth recommendation from such persons.

In August or September, 1974, defendant asked plaintiff to help her disconnect her irrigation pump and store it for the winter. Plaintiff had performed that work for defendant in the preceding year and had been paid for his work. Plaintiff expected to be paid on the same basis for assisting defendant in 1974; however, there was no specific discussion regarding price or payment for the work in 1974. Plaintiff had done other work for defendant on earlier occasions and sometimes when the jobs were small, there had been no discussion of price or payment until the job was completed. In such instances, plaintiff had charged defendant a "reasonable amount" when the work was completed.

The irrigation pump sat approximately four to five feet from the edge of a drop-off to the Molalla River. The pump was connected to a plastic intake pipe coming from the river and to a plastic outflow pipe leading to defendant's garden and lawn. Both pipes were clamped onto the pump with ring clamps.

In the prior year plaintiff had merely loosened the clamps and both hoses came off without difficulty. In the 1974 incident, however, both hoses were stuck tightly onto the nipples of the pump. Plaintiff first loosened the clamps and tried to pry each pipe loose with his screwdriver. Plaintiff also attempted to turn the pump sideways to do the work but the intake and outflow pipes were rigid and prevented plaintiff from turning the pump.

Plaintiff suggested to defendant that plaintiff cut two or three inches from each plastic pipe and put a metal union on each pipe, explaining to defendant that this would make the work possible for her to do herself in ensuing years. Defendant rejected this suggestion, however.

Defendant then suggested that she would go to her house, procure hot water and bring it back to use in loosening the pipe. Defendant brought hot water to the scene of the work. Defendant then directed plaintiff to position himself on the river side of the pump to face the pump and to pull on the intake pipe while defendant poured hot water over the connection. The river bank had been partially eaten away since the prior year when plaintiff had dismantled the pump, making the pump sit closer to the edge than had been the case in 1973. Also, the bushes had grown up so as to somewhat obscure the ground between the pump and the river bank.

As plaintiff was kneeling facing the pump and positioned between the pump and the river bank, defendant poured hot water onto the pipe connection. Meanwhile, plaintiff was attempting to work the pipe loose from the pump. The pipe suddenly released and plaintiff fell backward over the drop-off and onto a rock ledge, suffering the injuries with which this case is concerned.

In defending the trial court's judgment, the defendant argues (1) that the law of "employer-employee" does not apply under this evidence; (2) that if the evidence does disclose an employment relationship the allegations of plaintiff's complaint give rise to no duty on the part of defendant in this situation; and (3) that even if there was a duty owed by defendant to plaintiff, there was no evidence of negligence on the part of defendant. As an independent argument, defendant "suggests" that plaintiff is barred by implied assumption of the risk.

We turn first to the last point. The trial judge in part granted the nonsuit for the express reason that he found that plaintiff had assumed whatever risk was involved. By Oregon Laws 1975, ch. 599, § 4(2), the doctrine of implied assumption of the risk was abolished. This section is now codified as ORS 18.475(2). Defendant has attempted to plead implied assumption of the risk, both as an allegation of contributory negligence on the part of the plaintiff and as an independent defense presumably urging in the latter instance that assumption of risk is used in its primary sense of a want of duty on the part of the defendant. See Ritter v. Beals, 225 Or. 504, 358 P.2d 1080 (1961); Thompson v. Weaver, 277 Or. 299, 303, 560 P.2d 620 (1977). The incident with which we are concerned in this case occurred in September, 1974, and the trial was held in 1977. The 1975 statute expressly provided that it governed all actions tried subsequent to its effective date, which was September 13, 1975. We held this provision to be valid in Hall v. Northwest Outward Bound School, 280 Or. 655, 572 P.2d 1007 (1977). We hold that implied assumption of the risk is not a proper basis for defeat of this plaintiff's claim, whether contemplated in the primary or secondary sense.

It is usually helpful to analyze cases of this kind by determining what relationship exists between the parties, for the common law has established the nature and scope of duties owed by one person to another when they stand in certain recognized relationships to each other. That is not always the case, however, for in general one owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury. ¹ For example, if the actor, while walking along the beach, finds one of those long strings of kelp which resembles a bullwhip, picks it up and in play cracks it like a whip, he will most certainly be found to have been negligent toward the bystander whose eye is plucked from his head by the act even though no special relationship exists between the two.

In this case plaintiff's theory of the case, as set forth in his complaint, is that an "employment" relationship existed between himself and the defendant. One or more of the charges of negligence he has made against defendant in his complaint are cognizable in the eyes of the law with respect to that...