Najjar v. Safeway, Inc.

• Decision Date: 28 December 2005
• Docket Number: 0104-03817; A121182.
• Citation: 125 P.3d 807,203 Or. App. 486
• Parties: Abderrahim NAJJAR, Respondent, v. SAFEWAY, INC., a Delaware corporation; and Wilson Lee, Appellants.
• Court: Oregon Supreme Court

125 P.3d 807

203 Or. App. 486

Abderrahim NAJJAR, Respondent, v. SAFEWAY, INC., a Delaware corporation; and Wilson Lee, Appellants.

0104-03817; A121182.

Court of Appeals of Oregon.

Argued and submitted December 21, 2004.

Decided December 28, 2005.

Peter R. Chamberlain, Portland, argued the cause for appellants. With him on the opening brief was Bodyfelt Mount Stroup & Chamberlain LLP. On the reply brief was Vicki M. Smith and Bodyfelt Mount Stroup & Chamberlain LLP.

John M. Petshow argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

ARMSTRONG, J.

Defendants appeal from a judgment entered on a jury verdict for plaintiff for personal injuries. We affirm.

Because the jury found in his favor, we present the facts in the light most favorable to plaintiff. Or Const, Art VII (Amended), § 3. On January 11, 2000, plaintiff worked his shift as a maintenance clerk at a grocery store in downtown Portland operated by defendant Safeway, Inc. Plaintiff went home at the end of his shift but returned to the downtown store to purchase some groceries later that evening, accompanied by Johnson, who was plaintiff's roommate and a meatcutter employed by Safeway. After they concluded their shopping, plaintiff and Johnson engaged in a social conversation in front of the store.

At that time, defendant Lee was employed by Safeway as head clerk, a position that included management authority over plaintiff. While plaintiff and Johnson were talking in front of the store, Lee left the store in pursuit of a shoplifter who was absconding with a bottle of wine. Lee called plaintiff and Johnson by their first names and shouted either "that guy's getting away," "help," or "come here." Lee then took off running after the shoplifter.

Plaintiff had his back to the store when Lee hailed him. He turned to see Lee running but did not see the shoplifter. Plaintiff and Johnson answered Lee's call by running after him. When plaintiff caught up to Lee at the edge of the store property, Lee gestured for plaintiff to continue the chase in a particular direction. Plaintiff complied, and the course to which he was directed led him into a dark parking lot. While crossing that parking lot, plaintiff ran off a small ledge and, in the ensuing fall, tore the anterior cruciate ligament in his left knee. The injury required two surgeries to repair and a lengthy period of physical therapy.

After the Workers' Compensation Board concluded that the injury was not compensable because it had not occurred in the course of plaintiff's employment, plaintiff pursued this action, alleging that defendants were negligent by calling him to chase the shoplifter and by not calling for him to stop once the shoplifter had left Safeway's property. Before trial, defendants moved for summary judgment, arguing that the board's order precluded plaintiff from relitigating whether defendants requested plaintiff's help in the pursuit. Defendants argued that the board necessarily found that no such request was made and that plaintiff's negligence theories turned on that factual question. The trial court denied defendants' motion for summary judgment, and the case was tried to a jury.

At the close of evidence, defendants moved for a directed verdict, arguing that plaintiff's evidence was insufficient to support a jury verdict in his favor. The court reserved ruling on that motion. The jury determined that plaintiff's medical bills and lost wages totaled $32,658.80 and that his noneconomic damages totaled $20,000.00. However, the jury concluded that plaintiff's own negligence caused 41 percent of his damages. After the jury returned its verdict, the court denied defendant's motion for a directed verdict, and defendants moved for a judgment notwithstanding the verdict and for a new trial. The court denied those motions, and defendants appeal the judgment that the court entered on the jury verdict.

Defendants assign error to the trial court's denial of their motions for a directed verdict, for judgment notwithstanding the verdict, and for summary judgment. Defendants' arguments on their assignment of error to the denial of their motion for judgment notwithstanding the verdict are subsumed within their assignment of error on the denial of their motion for a directed verdict.¹ We first address those arguments and then turn to defendants' assignment of error to the denial of its motion for summary judgment.

In reviewing the denial of a motion for a directed verdict, we consider the evidence, including any inferences, in the light most favorable to the party that obtained a favorable verdict. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). If, after viewing the facts in that light, the moving party is entitled to judgment as a matter of law, then a directed verdict is appropriate. Rutter v. Neuman, 188 Or.App. 128, 133, 71 P.3d 76 (2003).

Defendants moved for a directed verdict on the ground that there was insufficient evidence to support a finding that the harm that plaintiff suffered was foreseeable and that defendant's conduct was unreasonable.² In Oregon,

"unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff. The role of the court is what it ordinarily is in cases involving the evaluation of particular situations under broad and imprecise standards: to determine whether upon the facts alleged or the evidence presented no reasonable factfinder could decide one or more elements of liability for one or the other party."

Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). Defendants argue, and plaintiff does not dispute, that no duty-defining status, relationship, or standard existed between plaintiff and defendants. Thus, the legal question is whether plaintiff produced evidence from which the jury could find that the harm that befell plaintiff was foreseeable and that defendants' conduct was unreasonable in light of that risk. Solberg v. Johnson, 306 Or. 484, 490, 760 P.2d 867 (1988).

We first address whether the harm that befell plaintiff was foreseeable. Although the employment relationship is not a duty-defining relationship in this case, plaintiff's identity as defendant Safeway's off-duty employee is nonetheless relevant in analyzing whether the risk of harm to plaintiff was foreseeable. In Fuhrer v. Gearhart By The Sea, Inc., 306 Or. 434, 437, 760 P.2d 874 (1988), the Supreme Court explained that, "[i]n the absence of a duty arising from a [special relationship], a defendant may be liable for conduct which is unreasonable in the circumstances if that conduct results in harm to a plaintiff and the risk of harm to the plaintiff or the class of persons to whom the plaintiff belongs was foreseeable." Furthermore, in Faverty v. McDonald's Restaurants, 133 Or.App. 514, 538, 892 P.2d 703 (1995), rev. dismissed, 326 Or. 530, 971 P.2d 407 (1998), we explained that Fazzolari stands for the proposition that "the law does not provide a remedy in common law negligence for an injured plaintiff unless the kind of harm that the plaintiff suffered arises from `unreasonable' conduct that creates a foreseeable risk of harm to the particular plaintiff in the case." (Emphasis added.) That is, the plaintiff must be a "foreseeable plaintiff[ ]." Allstate Ins. Co. v. Tenant Screening Services, Inc., 140 Or.App. 41, 50, 914 P.2d 16 (1996) (citing Fuhrer, 306 Or. at 437, 760 P.2d 874).

In this case, the jury could find that it was foreseeable that plaintiff, as an off-duty employee, would be more likely to respond to defendant Lee's exhortation than would a stranger. As we have explained, albeit in a different context, the relationship between an employee and an employer "is not an arm's length one between strangers." Bodewig v. K-Mart, Inc., 54 Or.App. 480, 486, 635 P.2d 657 (1981), rev. den., 292 Or. 450, 644 P.2d 1128 (1982).

Furthermore, plaintiff introduced testimony that it was dark at the time of the incident and that, although the Safeway parking lot was reasonably well lit, the area beyond the Safeway property was not. The testimony also reflected that, as plaintiff chased after Lee, he was running quite quickly.³ From those facts, the jury could infer that a reasonable employer could foresee the risk to its off-duty employee of a fall from running quickly, in response to a call for help from the employer, in a poorly lit environment at night. That defendants could not necessarily foresee the particular mechanism by which plaintiff was injured is of no import. The foreseeability analysis is concerned with the "generalized risk of the types of incidents and injuries that occurred rather than the predictability of the actual sequence of events." Fazzolari, 303 Or. at 13, 734 P.2d 1326. Thus, we cannot say on these facts that evidence of the foreseeability of the risk of harm to plaintiff was insufficient as a matter of law.

Furthermore, there was evidence to support a finding by the jury that defendants' conduct was unreasonable in light of that risk. Viewed in the light most favorable to plaintiff, the evidence showed that Lee called out for plaintiff's help to catch the shoplifter and, in fact, directed him to continue the pursuit after Lee abandoned it. The jury could infer that Lee did so in order to apprehend a shoplifter who had stolen a bottle of wine. The jury could conclude that it was unreasonable for defendants to expose plaintiff, an off-duty employee likely to be inclined to respond to his employer's requests, to a foreseeable risk of harm by involving him in the pursuit simply to prevent the loss of a bottle of wine.

It bears repeating...