Ragnone v. Portland School Dist. No. 1J

• Jurisdiction: Oregon
• Citation: Ragnone v. Portland School Dist. No. 1J, 605 P.2d 1217, 44 Or.App. 347 (Or. App. 1980)
• Docket Number: No. A7809,A7809
• Parties: Rose RAGNONE, Appellant-Cross-Respondent, v. PORTLAND SCHOOL DISTRICT NO. 1J, Respondent-Cross-Appellant. 14371; CA 14807.
• Court: Oregon Court of Appeals
• Decision Date: 05 February 1980

Page 1217

605 P.2d 1217

44 Or.App. 347

Rose RAGNONE, Appellant-Cross-Respondent, v. PORTLAND SCHOOL DISTRICT NO. 1J, Respondent-Cross-Appellant.

No. A7809 14371; CA 14807.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 1979.

Decided Feb. 5, 1980.

Elden M. Rosenthal, Portland, argued the cause and filed the briefs for appellant-cross-respondent.

James B. Westwood, Portland, argued the cause for respondent-cross-appellant. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, and William B. Crow, Portland.

Before TANZER, P. J., and THORNTON and CAMPBELL, JJ.

CAMPBELL, Judge.

The plaintiff sought to recover damages for personal injury sustained by her while on the premises of one of the defendant's schools. A judgment was entered for the plaintiff on a jury verdict. The trial court granted the defendant's motion for a judgment notwithstanding the verdict, from which the plaintiff has appealed. We affirm. ¹

The plaintiff was 61 years of age at the time of the trial. She had been employed as a cafeteria worker by the defendant at the Sellwood Middle School for several years. In the fall of 1977 the plaintiff took a leave of absence for medical reasons and on October 12, 1977, had major surgery performed. While recuperating, the plaintiff was asked by a fellow cafeteria worker to attend a small noontime birthday party for the cafeteria manager, Laura Adamoski, in the school cafeteria on November 18, 1977. The plaintiff was driven to the school by her son to attend the party. After the party was finished, the plaintiff remained because Mrs. Adamoski had promised to give her a ride home. About the time they were ready to leave, Mrs. Adamoski was summoned to the school office to answer a telephone call.

The plaintiff accompanied Mrs. Adamoski to the school office. They used the route "we always took" from the kitchen, across the adjoining gymnasium floor to a stairwell, and then up two flights of stairs to the school office. ² While Mrs. Adamoski used the telephone the plaintiff "just sat there, talked to the two secretaries." The plaintiff and Mrs. Adamoski undertook to return to the kitchen to pick up their coats and purses by the same route. On the trip to the office the gymnasium was vacant, but on the return trip it was being used by a class of students playing ball. ³

Prior to walking across the gym floor, Mrs. Adamoski "shouted at the children and asked them to please stand still until we reached the kitchen door and not to throw the ball * * *." The game did not stop. The gym teacher and the physical education aide were not present. The plaintiff and Mrs. Adamoski commenced walking across the gym floor. Mrs. Adamoski was walking behind and was watching the area to the rear of the plaintiff. When they were approximately two-thirds of the way to the kitchen, either one or two of the student boys bumped the plaintiff, who fell to the floor and broke her hip.

The plaintiff's second amended complaint alleged that the defendant was negligent in one or more of the following particulars:

"1. In directing plaintiff, and walking with plaintiff, across said cafeteria/gymnasium floor while a gym class was in session;

"2. In failing to maintain proper control and order over the students in said gym class; and

"4. In failing to provide proper supervision of said gym class."

At the conclusion of the presentation of the evidence, the trial court granted the defendant's motion to strike the plaintiff's first allegation or specification of negligence.

The case was submitted to the jury on the plaintiff's second and fourth specifications of negligence. The jury returned a verdict assessing the plaintiff's total damages at $33,000 and finding the defendant 60 percent at fault. Judgment was entered on the verdict for the sum of $19,800. The defendant moved for a judgment notwithstanding the verdict. The trial court allowed the motion, ruling, "There was no active negligence committed by the defendant or its agents in this case. * * *"

The plaintiff has appealed and contends that the trial court erred (1) "in ruling there was no active negligence committed by the defendant, and in granting defendant's motion for judgment NOV upon said ground" and (2) "in striking plaintiff's first allegation of negligence at the conclusion of the case."

In support of her first assignment of error the plaintiff argues that she was an invitee and the defendant owed her a duty of reasonable care, but if it should be determined that the plaintiff was a licensee, the defendant was guilty of active or affirmative negligence in its failure to adequately supervise the students. The plaintiff further argues that the licensee/invitee distinction should be abolished in Oregon.

The distinction between a licensee and an invitee is pointed out by Rich v. Tite Knot Pine Mill, 245 Or. 185, 421 P.2d 370 (1966), at 191, 421 P.2d at 373:

"A licensee is one who comes upon the premises for his own purposes with the consent of the possessor. * * * An invitee is one who comes upon the premises upon business which concerns the occupier, with the occupier's invitation, expressed or implied."

See also Restatement of Torts (Second) §§ 330, 332 (1965).

The undisputed facts and all favorable inferences therefrom show that the plaintiff's sole purpose in being at the school was to attend the birthday party for Mrs. Adamoski, and that the side trip to the school office was to visit with the secretaries. The plaintiff was a social guest. She was at the school for her own pleasure. Her visit had no connection with the education or feeding of the students.

A social guest is a licensee. The defendant had a duty not to injure the plaintiff by affirmative or active negligence. Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967) (mother-in-law visiting on Mother's Day); Fleck v. Nickerson, 239 Or. 641, 399 P.2d 353 (1965) (mother visiting on son's birthday; Baer v. Van Huffell, 225 Or. 30, 356 P.2d 1069 (1960); Burch v. Peterson, 207 Or. 232, 295 P.2d 868 (1956) (friend to play bridge); McHenry v. Howells, 201 Or. 697, 272 P.2d 210 (1954) (mother visiting daughter).

The allegations of negligence in the above quoted specifications # 2 and # 4 of the plaintiff's second amended complaint, "failing to maintain proper control", and "failing to...