Nelsen v. Nelsen
Decision Date | 09 May 2001 |
Citation | 23 P.3d 424,174 Or. App. 252 |
Parties | Alice J. NELSEN, Appellant, v. Christine NELSEN, Respondent. |
Court | Oregon Court of Appeals |
John S. Sather, Portland, argued the cause for appellant. On the opening brief was Kathryn H. Clarke, Portland.
Wendy M. Margolis, Portland, argued the cause for respondent. With her on the brief were Thomas W. Brown, Portland, and Cosgrave, Vergeer & Kester LLP.
Before HASELTON, Presiding Judge,1 and DEITS, Chief Judge, and WOLLHEIM, Judge.
Plaintiff brought this action against defendant for personal injuries. The trial court granted defendant's summary judgment motion. Plaintiff appeals from the trial court's judgment dismissing her claim. She assigns as error the trial court's granting of defendant's motion for summary judgment. Because an objectively reasonable juror could have returned a verdict for plaintiff, a genuine issue of material fact exists, and defendant was not entitled to summary judgment. ORCP 47 C. Accordingly, we reverse and remand.
We view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to plaintiff. Jones, 325 Or. at 408, 939 P.2d 608.
Plaintiff is defendant's mother. Defendant was remodeling her home with her father's help. On the day plaintiff was injured, defendant informed her father that roof trusses were to be delivered later that day. Her father told defendant that they would need another person to help them move the trusses. Defendant called her son-in-law and asked if he could help. He said he could if someone could watch his children. Defendant replied that she would have plaintiff watch the children in defendant's family room while they moved trusses.
Plaintiff and defendant's father were the first ones to arrive at defendant's house. They entered the house through the garage and, as a result, did not see the part of the house that was being remodeled. Defendant began describing to plaintiff the planting and painting she had done in her courtyard and invited plaintiff to go outside to look at it. Plaintiff agreed. Defendant stepped outside first. There was a short step from the floor level of the house to the ground outside. Defendant held open a heavy glass door and, as plaintiff was stepping through the doorway, defendant said, "Watch your step." Plaintiff was holding onto the doorframe as she stepped out of the house and was looking at the courtyard. When plaintiff stepped down, her foot slipped on some plastic that defendant had spread out on the ground to protect it from paint spills. Plaintiff fell and broke her hip. The plastic was a black plastic that had been rolled up and was described by plaintiff as "not like a tarp" and "smoother than heck." Furthermore, the plastic was wet.
Plaintiff sued defendant in negligence for economic and noneconomic damages. Plaintiff's complaint alleged that defendant created an unreasonable risk of harm to plaintiff by failing to remove the plastic before inviting plaintiff outside, failing to warn plaintiff about the plastic, and otherwise failing to make the plastic safe for walking. Defendant argued that plaintiff was injured as a result of her own negligence, because she failed to keep a proper lookout for her own safety, she failed to properly place her feet to avoid a fall, and she failed to control her body movement so as to avoid injury to herself. Defendant then moved for summary judgment. The trial court found that, at the time of injury, plaintiff held the status of a licensee, not an invitee, and that defendant breached none of the duties owed to plaintiff as a licensee. Consequently, the trial court granted defendant's motion. Plaintiff appeals.
Plaintiff assigns as error the trial court's granting of defendant's motion for summary judgment and makes several arguments. First, plaintiff argues that she was an invitee, not a licensee, because she was at defendant's home for a business purpose. Second, plaintiff argues that, even if she were a licensee at the time of the accident, defendant owed her a duty of care and that defendant's liability was a factual question for a jury to determine. In support of that argument, plaintiff makes two subarguments. Plaintiff argues she was injured as a result of defendant's activity, not a condition of the land, and, therefore, defendant had a duty to exercise reasonable care for her protection. Alternatively, plaintiff argues that the duty to warn runs equally to invitees and licensees and, as a result, defendant had a duty to warn plaintiff of known risks. Third, plaintiff argues that whether plaintiff should have discovered the danger posed by the plastic was a question for a jury to decide. Defendant argues that plaintiff entered and remained on the premises as a licensee and not as an invitee; that even if plaintiff was an invitee at arrival, she was a licensee at the time of injury; and that defendant did not breach any duties owed to plaintiff as a licensee.
The duty an owner or occupier of land owes to a visitor is determined by the visitor's status on the land.3 See Rich v. Tite-Knot Pine Mill, 245 Or. 185, 191-92, 421 P.2d 370 (1966). An invitee is a person who, with the occupier's invitation, comes upon a premises to conduct business that concerns the occupier. Id. By contrast, a licensee is a person who, with the occupier's permission, comes upon a premises for the licensee's own purposes, often social. Id. at 191, 421 P.2d 370. A visitor's status can change while on the premises; thus, one's status in a negligence action is determined at time of the injury, not at the time of entry onto the premises. Taylor v. Baker, 279 Or. 139, 148, 566 P.2d 884 (1977).
In general, an occupier of a premises owes a greater duty to invitees than to licensees. Compare Restatement (Second) of Torts §§ 343, 343A (1965) with Restatement (Second) of Torts § 342.4 However, there is an overlap in the duties an occupier owes to each. See id. at § 343, comment b ("To the invitee, the possessor owes not only this duty [the one owed to a licensee], but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor."). Specifically, if an occupier of a premises "has knowledge of the risk which the condition of the premises creates, his duty to [warn] an invitee or a licensee is the same." Wilsey v. Campbell, 255 Or. 420, 422, 467 P.2d 964 (1970). Consequently, in this instance, we need not resolve whether plaintiff was an invitee or a licensee at the time of the accident in order to resolve the issue of whether the trial court erred when it concluded that defendant did not breach a duty to warn plaintiff of the hazard posed by the plastic. Based upon the facts before us and viewing all reasonable inferences in the light most favorable to plaintiff, we hold that an objectively reasonable juror could find that defendant failed to properly warn plaintiff of the plastic ground cover in the courtyard and, therefore, could return a verdict for plaintiff.
The duty an occupier of a premises owes to a licensee for dangerous conditions known to the occupier is explained in Restatement (Second) of Torts § 342, which provides:
Although courts do not literally adopt the Restatements of the American Law Institute in the same manner that a legislature enacts a law, we often quote from the Restatements when, in our view, "the analysis summarized in the Restatement corresponds to Oregon law applicable to the facts of the case before the court." Brewer v. Erwin, 287 Or. 435, 455 n. 12, 600 P.2d 398 (1979). That is frequently the case in disputes involving issues of premises liability and, consequently, is why we refer to particular sections of Restatement (Second) of Torts here. See, e.g., Woolston v. Wells, 297 Or. 548, 553, 687 P.2d 144 (1984) ( ); Wilsey, 255 Or. at 422-23, 467 P.2d 964 (citing Restatement (Second) of Torts § 342); Rich, 245 Or. at 191, 421 P.2d 370 (citing Restatement (Second) of Torts § 329). However, the courts "do not enact the exact phrasing of the Restatement rule, complete with comments, illustrations and caveats." Brewer, 287 Or. at 455 n. 12, 600 P.2d 398. We refer to specific comments contained in sections of the Restatement (Second) of Torts here because we conclude that they are persuasive and relevant to resolving the case before us. See, e.g., Taylor, 279 Or. at 148, 566 P.2d 884 ( ).
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