Nelson v. Tworoger
| Decision Date | 22 July 1970 |
| Parties | Bonnie N. NELSON, Respondent, v. Sidney A. TWOROGER and Virginia B. Tworoger dba Surftides Resort, Hotel and Motel-Restaurant and Lounge, On-The-Beach, Appellants. |
| Court | Oregon Supreme Court |
Sam F. Speerstra, Salem, argued the cause for appellants. On the brief were Rhoten, Rhoten & Speerstra, Salem.
James E. Redman, Milwaukie, argued the cause for respondent. On the brief were Redman & Carskadon and James R. Carskadon, Jr., Milwaukie.
Before PERRY, C.J.,* and McALLISTER, SLOAN, O'CONNELL, GOODWIN,** DENECKE and HOLMAN, JJ.
Defendants are the owners and operators of the Surftides Resort and Hotel in Lincoln city. At about 3 a.m. on December 11, 1966, plaintiff and her new husband arrived at the Surftides for their honeymoon. The room they were assigned opened onto a small patio. Next to the patio there was a small area of Welch grass. The top of a seawall bordered the grass. The seawall was about 10 feet in height. The top of the wall, which was level with the ground and patio, was about one foot in width.
The next morning, plaintiff walked out on the patio, stood on the seawall and turned to wave to her husband, who was inside the room. She testified that a sudden gust of wind caused her to fall from the seawall to the sandy beach below. The injuries she alleges she received from the fall form the basis of this action. She prevailed by a jury verdict and judgment. Defendant appeals.
The first assignment of error claims that there was no evidence to sustain any of the specifications of negligence in the complaint. The first specification is that defendant failed to provide a safe place to walk and stand. The second is a failure to warn of the likelihood of gusts of wind and the third is the failure to have a guardrail on the top of the seawall.
It appears to us that the evidence does support the theory that a guardrail would have prevented the accident. It would seem very reasonable for the jury to infer that the situation required a guardrail and that failure to provide one was the cause of the fall.
Defendants, in part, counter this argument with evidence indicating that at this time of the year (December), they had placed plywood barriers about two and one-half feet in height along the edge of the patrio. They said the purpose of this barrier was to break the force of the sea water coming over the seawall in winter storms. Defendants' witness testified that this barrier was in place when plaintiff occupied the room and that plaintiff would have been obliged to climb over this barrier to reach the spot from which she fell. Plaintiff testified that the barrier was not there and that she could walk freely from the door of the...
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