McNamara v. Night Deposit Inc.

• Decision Date: 14 April 1983
• Docket Number: No. 36568,36568
• Citation: 62 Or.App. 19,659 P.2d 440
• Parties: Kaye Lynn McNAMARA, Appellant, v. The NIGHT DEPOSIT, INC., Respondent. The NIGHT DEPOSIT, INC., Cross-Appellant, v. H.P. SAABYE, individually and dba Saabye and Gribskov, AIA Architects; Larry Mattson; and Larry Mattson Construction, Cross-Respondents. ; CA A24273.
• Court: Oregon Court of Appeals

Page 440

659 P.2d 440

62 Or.App. 19

Kaye Lynn McNAMARA, Appellant, v. The NIGHT DEPOSIT, INC., Respondent.

The NIGHT DEPOSIT, INC., Cross-Appellant, v. H.P. SAABYE, individually and dba Saabye and Gribskov, AIA

Architects; Larry Mattson; and Larry Mattson

Construction, Cross-Respondents.

No. 36568; CA A24273.

Court of Appeals of Oregon.

Argued and Submitted Jan. 14, 1983.

Decided March 2, 1983.

Reconsideration Denied April 14, 1983.

J.W. Walton, Corvallis, argued the cause for appellant. On the brief were Robert G. Ringo and Ringo, Walton & Eves, P.C., Corvallis.

Gerald K. Peterson, Corvallis, argued the cause and filed the briefs for respondent and cross-appellant.

Robert D. Newell, Portland, argued the cause and filed the brief for cross-respondents Larry Mattson and Larry Mattson Const.

M. Chapin Milbank, Salem, waived appearance for cross-respondents H.P. Saabye and Saabye and Gribskov, AIA Architects.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Plaintiff brought this action for injuries she sustained when she fell on a stair at defendant's restaurant. She appeals from a judgment for defendant, entered on a jury verdict. We affirm.

Plaintiff's injury occurred when she was descending from the dining and lounge area of the restaurant to the floor below. That required her to walk down a flight of four steps that led to a 54-inch long landing which in turn led to a two-step flight at a right angle to the landing. Plaintiff fell while attempting to descend the two-step flight. There was a handrail on the four-step flight, but there was no handrail on the two-step flight where the injury took place. Plaintiff alleged, inter alia, that defendant was required by the Uniform Building Code of the City of Corvallis to have a handrail at the place where she fell and that defendant's failure to do so constituted negligence per se.

The parties agree that the code requires handrails on "stairways," that it defines a "stairway" as a flight with "two or more risers," and that it excepts "stairways having less than four risers" from the handrail requirement. At trial, plaintiff contended that the two-step flight was part of a six-step stairway. Defendant contended that the two steps were a separate stairway and therefore came within the code's exception from the handrail requirement.

The trial court construed the code and concluded as a matter of law that the two-step flight was a separate stairway that was not required to have a handrail. Plaintiff assigns error to that ruling, to the trial court's striking of the negligence per se allegation, and to the exclusion of expert testimony proffered to support plaintiff's contention that the divided flights and the landing constituted a single stairway and were therefore required to have handrails. Plaintiff argues that the code provisions are ambiguous and that, accordingly, it was a fact question for the jury whether the area was a single stairway and was subject to the code's handrail requirement.

Defendant argues that the trial court correctly treated the meaning of "stairway" as a question of law for the court to decide. We agree. In Bogue v. McKibben, 278 Or. 483, 564 P.2d 1031 (1977), the defendant claimed that the trial court erred in submitting to the jury the question of whether the area where an accident occurred was a "residence district" within the meaning of of former ORS 483.104(2)(a). The Supreme Court stated:

"The question of whether or not the vicinity of the accident was a residence district should not, in the instant case, have been sent to the jury as a fact-law question over defendant's timely objection. Staples v. Senders, 164 Or. 244, 96 P.2d 215, 101 P.2d 232 (1940), involved the applicability of an ordinance and aptly describes the rationale of the rule, stating at page 260 [96 P.2d 215, 101 P.2d 232]:

" 'It was the duty of the court to construe the ordinance, and it was error so to charge the jury as to permit them to determine whether or not its provisions governed the rights of the parties. The question, for example, whether the opening in the floor was a wellhole within the meaning of the ordinance was a question of law and not of fact. Were it to be held otherwise, then in another case presenting...