Mounts v. Knodel

• Decision Date: 17 December 1986
• Citation: 83 Or.App. 90,730 P.2d 594
• Parties: Dennis MOUNTS, Respondent, v. Larry KNODEL, Appellant. 84-0956; CA A36834.
• Court: Oregon Court of Appeals

Page 594

730 P.2d 594

83 Or.App. 90

Dennis MOUNTS, Respondent, v. Larry KNODEL, Appellant.

84-0956; CA A36834.

Court of Appeals of Oregon.

Argued and Submitted July 15, 1986.

Decided Dec. 17, 1986.

L.E. Ashcroft, Salem, argued the cause, for appellant. On brief were Sam F. Speerstra, Salem, Frank O. Diarmit, Salem, and Rhoten, Rhoten, Speerstra, Rinehart & Ashcroft, Salem.

Thomas M. Christ, Eugene, argued the cause, for respondent. With him on brief were Louis L. Kurtz, Eugene, and Luvaas, Cobb, Richards & Fraser, P.C., Eugene.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ. VAN HOOMISSEN, Judge.

This is a civil action for damages for personal injury. The jury returned a verdict in favor of plaintiff. Defendant contends that the trial court erred in excluding evidence of plaintiff's intoxication, in instructing the jury and in striking his allegation of contributory negligence and his affirmative defense that there were "particular and inherent" risks involved in riding a horse. We affirm.

Plaintiff worked for defendant in his construction business. Defendant also owned a ranch. Barton and Martin worked for defendant on his ranch. Barton was responsible for the horses, and Martin was a ranch hand who did clean-up work. Defendant invited plaintiff and his family to visit his ranch. Plaintiff testified that defendant told him that he could ride the horses. Defendant testified that he could not remember whether he gave plaintiff permission to ride but that he could think of no reason why he would not have given permission.

While plaintiff was at the ranch, Martin saddled a horse for him. Barton had not given plaintiff permission to ride. The right stirrup leather on plaintiff's saddle broke, causing him to fall off his horse. He suffered a broken wrist, bruises and lacerations. Sometime before plaintiff's ride, the left stirrup leather on the same saddle had broken. Barton had repaired it, but he did not check the condition of the right stirrup before permitting the saddle to be used again. The saddle had been used without incident until plaintiff's fall.

Defendant first contends that the trial court erred in excluding evidence of plaintiff's intoxication and its effect on his ability to ride. The court sustained plaintiff's objection to defendant's questions about beer purchased by plaintiff's wife. It also excluded portions of Martin's deposition testimony about plaintiff's consumption of beer. Defendant argues that there was evidence of negligence on plaintiff's part and that the jury should have been permitted to consider it. See Lynch v. Clark et al., 183 Or. 431, 194 P.2d 416 (1948). Barton testified at trial that he would not have given plaintiff permission to ride a horse, because plaintiff had been drinking.

The record does not show what evidence defendant would have presented. He did not make an offer of proof regarding either the wife's purchase of beer or the deleted portions of Martin's deposition testimony. Martin's deposition is not part of the record. Therefore, the assignment of error cannot be considered. See Hall v. Banta, 283 Or. 387, 389, 583 P.2d 1139 (1978).

Defendant next contends that the trial court erred in failing to give Uniform Jury Instruction No. 12.01:

"The care required of a person who has become intoxicated is the same as that required of one who is sober. Failure by a person to use that degree of care which an ordinary prudent sober person would use under the same or similar circumstances would constitute negligence."

Plaintiff argues that there was no error, because the instruction is an abstract statement of law that would not have informed the jury about any relationship between plaintiff's alleged intoxication and defendant's defense that plaintiff had failed to control his horse.

In Abel v. Cone, 268 Or. 339, 520 P.2d 899 (1974), the Supreme Court held that the trial court did not err in refusing to give the same instruction that was requested here. In Abel, the party requesting the instruction did not request an instruction that informed the jury about the relationship between the consumption of alcohol and the consumer's ability to keep a vehicle under control. The Supreme Court explained that it was not reversible error to refuse to give an abstract instruction, even though it was a correct statement of the law. 268 Or. at 341-42, 520 P.2d 899. Here, defendant did not seek an instruction informing the jury about the connection between plaintiff's alleged intoxication and the allegation that plaintiff had failed to control the horse. Therefore, the trial court did not err in refusing to give defendant's requested instruction. ¹

Defendant next contends that the trial court erred in refusing to give both his requested jury instruction regarding the definition of a licensee and Uniform Jury Instruction No. 120.66. The requested definition instruction provided:

"I instruct you that a social guest upon the premises of another has the status of a licensee not an invitee.

"There is no duty on the part of the host to make the premises safe for his guest as the host merely offers his premises for the enjoyment of his guests with the same security that the host and members of his family have. A licensee must take his chances as to any defective condition unknown to the possessor."

Uniform Jury Instruction 120.06 provides:

"The possessor has no duty to a licensee with respect to the condition of the premises except to inform him of any concealed, dangerous conditions on the premises known to the possessor."

Defendant argues that the court's failure to give those instructions prevented the jury from knowing the distinction between a licensee and an invitee. Plaintiff argues that the court did not err, because the instructions apply only to "conditions" of the land and not to "activities" engaged in on the land.

In Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 621, 633 P.2d 1287 (1981), the Supreme Court defined the duties an occupier of land owes to a licensee.

"1. As to conditions of the land, the occupier is liable for injuries arising from the occupier's willful [sic] or wanton act, and for that gross negligence which is equivalent to willfulness [sic] or wantonness. Elliott v. Rogers Construction, 257 Or. 421, 431, 479 P2d 753 (1971). In addition, the occupier must warn of any pitfall or trap known to the occupier which might cause injury to the licensee notwithstanding the use of reasonable care by the licensee. Blystone v. Kiesel, 247 Or 528, 431 P2d 262 (1967).

"2. As to activities on the land, the occupier has the duty to exercise reasonable care for the protection of a licensee. Blystone v. Kiesel, supra, 247 Or at 531." (Footnotes omitted.)

Here, plaintiff was not injured by a condition of the land, but while he engaged in an activity, i.e., riding a horse. A jury could have found that defendant had failed to exercise reasonable care in maintaining the saddle and, therefore, could be held liable for plaintiff's resulting injuries. Defendant argues that, even if the standard is that for activities, he may not be held liable, because he was not conducting an activity; rather, it was plaintiff who was conducting the activity. The cases cited by defendant do not recognize such a distinction. We find no error.

Defendant next contends that the trial court erred in failing to give a requested jury instruction involving the duty of a sports participant to recognize and watch out for dangers inherent in the sport. The requested instruction reads:

"A licensee must exercise reasonable care in undertaking sports activities which have normal risks inherent in them. In such a case, a licensee must keep a proper lookout and not unreasonably expose himself to hazards or otherwise fail to recognize the risk of harm which would be known to a reasonably prudent licensee."

Defendant argues that Woolston v. Wells, 297 Or. 548, 687 P.2d 144 (1984), Blair v. Mount Hood Meadows Development Corp., 291 Or. 293, 630 P.2d 827, mod. on other grounds 291 Or. 703, 634 P.2d 241 (1981), and Nylander v. State of Oregon, 292 Or. 254, 637 P.2d 1286 (1981), support the proposition that, although assumption of risk has been abolished in Oregon, ORS 18.475(2), ² a sports participant using equipment has a duty to recognize the risks inherent in the use of that equipment. Plaintiff argues that the court did not err, because the requested instruction improperly focuses on assumption of risk.

Oregon cases recognize that there are risks inherent in sports activities. See, e.g., Blair v. Mt. Hood Meadows Development Corp., supra. However, the issue is one of duty, not assumption of risk. The Supreme Court has held that the legislature

"intended to abolish all use of the concept of plaintiff's assumption of risk in negligence cases (other than in its 'express' sense) whether as a defense to defendant's prior 'tortious' conduct or as a short hand phrase for defendant's lack of duty under the circumstances for breach of duty." Blair v. Mount Hood Meadows Development Corp., supra, 291 Or. at 300, 630 P.2d 827. (Footnote omitted.)

After reviewing the...