Landolt v. Flame, Inc.

• Decision Date: 08 February 1972
• Citation: Landolt v. Flame, Inc., 492 P.2d 785, 261 Or. 243, 93 Or.Adv.Sh. 1826 (Or. 1972)
• Parties: Bruce LANDOLT, Appellant, v. The FLAME, INC., an Oregon corporation, et al., Respondents.
• Court: Oregon Supreme Court

Page 785

492 P.2d 785

261 Or. 243

Bruce LANDOLT, Appellant, v. The FLAME, INC., an Oregon corporation, et al., Respondents.

Supreme Court of Oregon.

Argued and Submitted Dec. 8, 1971.

Decided Jan. 12, 1972.

Rehearing Denied Feb. 8, 1972.

Thomas O. Carter, Portland, argued the cause for appellant. With him on the briefs were Rask & Hefferin, Portland.

Walter J. Cosgrave, Portland, argued the cause for respondents. With him on the brief were Maguire, Kester & Cosgrave, Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

This is an action for personal injuries sustained by plaintiff when he went through a glass door in a hasty exit from a bar after a fistic altercation. The primary negligence alleged is that the glass exit door would not open 'out' with 'exit travel' in violation of the county building code.

Plaintiff appeals from an order setting aside a jury verdict of $6,098.75 and granting defendants' alternative motion for a new trial 'on all grounds set forth in the motion.' ¹ Those grounds may be summarized as follows:

1. Error in submitting to the jury the issue of building alterations in violation of the building code when (a) they were not pleaded and (b) there was no 'proper evidence' that such alterations were made by defendants.

2. Error in admitting as evidence the county building code, the application for a building permit, and the plans for alterations of the building, including the door in question, which was shown as opening 'out.'

3. Error in the giving of instructions on (a) violation of a statute as negligence, (b) negligence per se, and (c) emergency.

4. Error and 'irregularity in the proceedings' in denying defendants' motion for mistrial for plaintiff's 'repeated references' to one of defendants' witnesses as defendants' 'bouncer.'

Because the order granting a new trial must be affirmed if any one of these grounds is well taken, it is necessary to consider each of them. Before considering these various contentions, however, the facts may be briefly summarized.

Plaintiff and another man visited defendants' bar. Plaintiff testified that he objected to certain language used by another man, who was also sitting at the bar, because of the presence of a lady, also seated at the bar. He and his friend testified that the other man then started a fight in the bar and that they then decided to 'get out of there.'

Plaintiff then ran out of the bar, put his hands on the metal 'push bar' across the glass exit door, bending the 'push bar' badly, and went on through the exit door, which did not open 'out' with 'exit travel,' as required by the county building code.

Defendants' witness testified, on the contrary, that plaintiff started the fight. Defendants admitted that the glass exit door did not open 'out,' but did not admit that this was in violation of the building code.

Defendants did not, however, deny plaintiff's medical testimony, which was to the effect that plaintiff's hands, fingers and wrist were badly cut, requiring the removal of many small pieces of glass and resulting in some permanent injury.

1. The trial court did not err in submitting to the jury 'the issue of the building alterations.'

a. Under the allegations of plaintiff's complaint it was not error to submit that issue to the jury.

After alleging that 'at all times mentioned herein' defendant The Flame, Inc. was the operator of the restaurant and lounge and that defendants Ratoza and Maras were the owners of the building, plaintiff's complaint alleges:

'That it was the duty of the defendants, and each of them, to provide exits from the premises at 12125--12133 NE. Halsey Street, with exit doors which would open with the exiting traffic. Defendants, and each of them, did not perform said duties but wholly neglected the same.'

and also:

'That on or about the 7th day of October, 1969, the plaintiff was a business invitee on the premises of 12125--12133 NE. Halsey Street, known as The Flame Restaurant and Lounge and in attempting to exit from said premises, collided with a Glass exit door installed in violation of Section 3303(b) of the Multnomah County Building Code, which said door, instead of opening with the exiting traffic, opened against the exiting traffic and shattered on contact, causing this plaintiff serious and permanent injuries as hereinafter set forth.' (Emphasis added)

Defendants contend in their brief that:

'It is well-established that in order to show negligence per se for violation of a statute or ordinance, Plaintiff must show: (a) that a statute applied, (b) that the statute was violated, (c) that the defendant was responsible for the violation, and (d) that the violation of the statute was the proximate cause of his injury. Smith v. Portland Traction Co., 226 Or. 221, 225, 359 P.2d 899 (1961).

'The precise issue here, then, is whether the phrase 'installed in violation of Section 3303(b) of the Multnomah County Building Code,' in a paragraph of the complaint setting forth another theory of liability--that of the possessor of real property to a business invitee for defects in the land--is to be elevated by any rules of favorable construction into the status of a full and sufficient exposition of an independent basis of recovery.

'* * *

'But the issue is not the sufficiency of the complaint to state a cause of action but the question of the sufficiency of the complaint to sustain the relevance of certain proffered evidence which arises on appeal from an order granting a new trial.

'Plaintiff contended during the trial that the complaint set forth an additional basis of liability, one not readily apparent from the face of the complaint. This contention was made at a time when defendants would be forced to bear alone liability with respect to which they might have been entitled to indemnity through timely tender.'

From an examination of the complaint, however (as quoted above), as well as from an examination of the transcript of the trial, it appears that plaintiff did not contend that the allegations relating to the building code 'set forth an additional basis of liability,' but that plaintiff's theory of liability was that defendants, as the operators of the bar and the owners of the building, were negligent in owning and operating a place of public assembly with an exit door which would not open 'out' with the exit travel. The allegation that the door had been installed in violation of the building code did not set forth 'an additional basis of liability.' On the contrary, that allegation was part and parcel of the same theory of liability.

As for the suggestion that under such 'an additional basis of liability' there might be a difference in the liability of the defendants and that they 'might have been entitled to indemnity through timely tender,' the answer is that: () for the reasons just stated, these allegations did not state 'an additional basis of liability'; (2) an examination of the record, including the instructions, shows that the case was not submitted to the jury on the theory that plaintiff was relying upon any such 'additional basis of liability'; (3) at the beginning of the trial defendants' counsel stipulated that 'if there was any liability, it would be the liability of both defendants' and (4) the possibility of a tender of defense to some third party is not a reason why this plaintiff was not entitled to have his case submitted to the jury under these pleadings, at least under the facts and circumstances of this case.

Defendants also contend that plaintiff's allegations that the glass exit door was installed in violation of the building code was a 'conclusion of law' and was 'insufficient for any purpose.' It will be noted, however, that plaintiff alleged the specific section of the building code involved and also alleged that the exit door violated the code in that '* * * instead of opening with the exiting traffic, (it) opened against the exiting traffic. * * *.' Although such an allegation might have been subject to demurrer or to a motion to make more definite and certain, no such motion or demurrer was filed.

In this connection, it must be kept in mind that once a building code becomes effective, persons who own and operate buildings which have been built since adoption of the code or which have been altered in such a manner as to become subject to the code are responsible for injuries caused by door installed in such a manner as to violate the building code, regardless of whether such a person was the same person who built or altered the building or who installed the particular door. Cf. Annot. 8 A.L.R.2d 218, 224.

Accordingly, we hold that, after the verdict, plaintiff's complaint was sufficient to entitle plaintiff to have submitted to the jury the issue of whether the exit door had been installed in violation of the building code. See also Rohner et ux v. Neville, 230 Or. 31, 33, 365 P.2d 614, 368 P.2d 391 (1961); Western Feed Co. v. Heidloff, 230 Or. 324, 343, 370 P.2d 612 (1962). ²

It follows that the trial court did not err in submitting that issue to the jury.

b. Under plaintiff's evidence it was also not error to submit to the jury the issue of whether the exit door violated the building code.

Defendants contended on trial that provisions of the county building code relating to exit doors applied only to buildings built or altered since the adoption of that code and did not apply to then existing buildings.

Plaintiff offered evidence from which the jury could properly find: (1) that in 1965 the county building code provisions became effective requiring that exit doors of premises 'serving an occupant load of 50 or more' should 'swing in the direction of the exit travel'; (2) that in 1966 defendant The Flame, Inc., secured a building permit for alterations of the building under plans which included the door in question and showed that it would open 'out' with exit travel; (3) that the...