Moorehead v. Tri-County Metro. Transp. Dist. of Or.

• Decision Date: 19 August 2015
• Docket Number: 110404566, A151775.
• Parties: Tina MOOREHEAD, Plaintiff–Appellant, v. TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

273 Or.App. 54

359 P.3d 314

Tina MOOREHEAD, Plaintiff–Appellant

v.TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, Defendant–Respondent.

110404566, A151775.

Court of Appeals of Oregon.

Argued and Submitted March 14, 2014.

Decided Aug. 19, 2015.

Willard E. Merkel argued the cause for appellant. With him on the briefs was Merkel & Associates.

Keith M. Garza argued the cause for respondent. With him on the brief was Kimberly Sewell.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

NAKAMOTO, J.

Plaintiff appeals a judgment in a negligence action against defendant, Tri–County Metropolitan Transportation District of Oregon (TriMet), for personal injuries arising from her slip and fall on a MAX train one rainy evening in Portland. In her complaint, plaintiff alleged that TriMet had been negligent in allowing water tracked in by passengers to gather and remain on the floor of its train without warning passengers or blocking off the areas with water on the floor. At trial, TriMet defended by arguing that, by installing special flooring on the train, TriMet had made the train reasonably safe, and, therefore, it had no duty to act. Alternatively, TriMet contended that plaintiff also was at fault by failing to exercise reasonable care to avoid harm. The jury found that TriMet had not been negligent as alleged by plaintiff and, therefore, did not reach the issue of comparative negligence. On appeal, plaintiff argues that the trial court erred in instructing the jury regarding TriMet's standard of care.¹ As explained below, given the parties' competing theories at trial, the trial court did not err in instructing the jury. Accordingly, we affirm.

FACTS

On a rainy evening in November 2010, plaintiff boarded a TriMet MAX train in Portland to travel home from work. It had been raining all day and the floor of the train was wet from tracked-in rainwater. There was an event at the Rose Garden arena that evening, so the train was crowded. When plaintiff boarded the train, she noticed that the floor of the train was wet from rainwater, though she and others testified at trial that there were no puddles of standing water on the floor. When the train reached her stop, plaintiff got up from her seat and made her way to the exit. While the train was stopped, as she approached the open doors to disembark the train, she slipped and fell, sustaining substantial injuries to her ankle.

TriMet used a material called Tungsten™ on the floor of the MAX train that plaintiff was on at the time of her fall. TriMet presented evidence that Tungsten™ is a highly slip-resistant material that TriMet had selected, in part, for its safety and slip resistance, even when wet. The train also had handrails for passengers to use. Lindner, who was operating the train in which plaintiff fell, testified that he knew that the floor of the train was wet from rainwater and that he had not warned the passengers or attempted to remove the water from the train floor that evening.

Following her accident, plaintiff filed this action for damages against TriMet. At the time of trial, plaintiff had narrowed her specifications of negligence to four, alleging that TriMet had been negligent in:

“(a) Allowing water to gather on its train floor when Defendant knew, or should have known, that the public, including Plaintiff, would be walking in the area;

“(b) Permitting water to remain on its train floor when Defendant knew, or should have known, that the public, including Plaintiff, would be walking in the area;

“(c) Failing to warn the public, including Plaintiff, of the slippery condition of its train floor created by the water it allowed to gather there; and

“(d) Failing to block off, rope off or barricade the area of the train floor on which water had gathered when Defendant knew, or should have known, that the public, including Plaintiff, would walk in the area.”

Thus, plaintiffs negligence theory was that TriMet was required but failed to keep foreign substances off the floors of its trains, to warn passengers that the train floor was slippery, and to block off, rope off, or barricade areas of the train floor that were wet.

TriMet denied that it had been negligent in the ways alleged by plaintiff. TriMet's theory of defense was that it had made its trains reasonably safe, which was all that the law required. Specifically, it contended that the rainwater on the floor of the train did not create an unreasonable risk of harm triggering a duty on its part to warn or eliminate that risk. TriMet also asserted an affirmative defense of comparative fault at trial, arguing that some or all of plaintiffs injuries were caused in whole or in part by her own negligent conduct.

Although the parties agreed that a premises liability instruction would be appropriate, the parties disagreed over how the jury should be instructed concerning TriMet's standard of care. The parties submitted competing proposed instructions before trial. Plaintiff contended that, because she was pursuing a negligence claim against TriMet based only on a theory that it was responsible for keeping foreign substances off the floors of its trains, the court should give the jury her proposed instruction, which was a modified form of Uniform Civil Jury Instruction (UCJI) 46.12,² pertaining to foreign substances on the floor of businesses. Plaintiffs proposed instruction provided:

“Tri–Met is a common carrier, and as such owes certain duties to its passengers.

A common carrier has a duty to provide its passengers with the highest degree of care for their safety. This duty includes protecting passengers from injuries caused by foreign substances on the floor of its train. Oregon law provides that tracked-in rainwater is a foreign substance. Oregon law provides that a common carrier operating a train is liable for passenger injury caused by a foreign substance on the floor of its train if the operator knows that the substance is on the floor and fails to use reasonable diligence to remove it, or that the foreign substance had been there so long that the train operator, in the exercise of reasonable diligence, should have discovered and removed it. Rex v. Albertson's, Inc., 102 Or.App. 178, 181, 792 P.2d 1248 (1990) ; Pribble v. Safeway Stores, 249 Or. 184, 187, 437 P.2d 745 (1968). You are instructed that the scope of Defendant's responsibility for tracked-in rainwater on its train floor does not depend on whether Plaintiff knew the train floor was wet from tracked-in rainwater or reasonably should have known of that fact. Nylander v. State of Oregon, 292 Or. 252 [254], 260–[61], 637 P.2d 1286 (1981).”

(Underscoring in original.)

In keeping with its defense theory, TriMet submitted the following two proposed instructions:

“POSSESSOR'S DUTY TO INVITEE (modified)

“A possessor of premises is not an insurer or guarantor of the safety of an invitee upon the premises; rather, the possessor's duty is one of reasonable care under the circumstances, which I will now define for you.

“A possessor of premises has a duty to make the premises reasonably safe for an invitee's visit. The possessor must exercise reasonable care to discover any condition that is unreasonably dangerous to the invitee and either eliminate the condition or warn any foreseeable invitee of the risk so the invitee can avoid the harm.

“A condition is unreasonably dangerous when the condition cannot be encountered with reasonable safety, even if the danger is known and appreciated. A condition is not unreasonably dangerous when the hazard arising from it would be known and appreciated by reasonable persons expected to encounter the condition.

“INVITEE–FOREIGN SUBSTANCE–BUSINESS PROPERTY (modified)

“The plaintiff claims she was injured by slipping on a foreign substance on the defendant's floor. To recover, the plaintiff must prove that the foreign substance caused the floor to be unreasonably dangerous and the defendant knew, or should have known, the substance was there and failed to use reasonable care to remove it or eliminate the unreasonable danger that the substance presented.”

The first instruction was based on UCJI 46.09,³ pertaining to the duty a possessor of premises has to its invitees; the second was based on UCJI 46.12. Through its second instruction, TriMet would have placed a burden on plaintiff to prove that “the foreign substance caused the floor to be unreasonably dangerous,” which TriMet's first instruction defined as a condition that “cannot be encountered with reasonable safety, even if the danger is known and appreciated.”

Before the trial was first scheduled to begin, the trial court addressed, among other things, the parties' dispute concerning TriMet's standard of care in the jury instructions. Plaintiff objected to TriMet's proposed instructions. She contended that TriMet's instruction concerning duties to invitees based on UCJI 46.09 was inapplicable and should not be given at all, because she was only alleging that TriMet was negligent with regard to foreign substances on the floor of its train—a theory that she argued was exclusively covered by UCJI 46.12:

“Your Honor, I should make clear what plaintiff's complaint is. We are alleging only that TriMet was responsible for keeping foreign substances off its train floor.

“If you look at premises liability law you will find that a premises possessor has five different duties that it owes to a claimant or an invitee. [The first is] to maintain a reasonably safe premises. We're not claiming that one is applicable.

“The second is to protect from defective conditions. We're not claiming that's applicable. The third is to protect from unreasonably dangerous conditions. We're not claiming that's applicable. The fourth is to protect from injuries caused by foreign substances on the floor. That's the one we're claiming. And the fifth is to protect from acts of third parties. We're not claiming that either.

“So in Paragraph 6 of our complaint where we set

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