Ragnone v. Portland School Dist. No. 1J

• Decision Date: 22 September 1981
• Docket Number: No. A7809-14371,A7809-14371
• Citation: 291 Or. 617,633 P.2d 1287
• Parties: Rose RAGNONE, Petitioner, v. PORTLAND SCHOOL DISTRICT NO. 1J, Respondent. ; CA 17974; SC 27257.
• Court: Oregon Supreme Court

Page 1287

633 P.2d 1287

291 Or. 617

Rose RAGNONE, Petitioner, v. PORTLAND SCHOOL DISTRICT NO. 1J, Respondent.

No. A7809-14371; CA 17974; SC 27257.

Supreme Court of Oregon.

Argued June 3, 1980.

Submitted Aug. 29, 1980.

Decided Sept. 22, 1981.

Elden M. Rosenthal, P. C., Portland, argued and filed the briefs for petitioner.

James N. Westwood, Portland, argued and filed a brief for respondent. With him on the brief were William B. Crow, and Miller, Anderson, Nash, Yerke & Wiener, Portland.

Before DENECKE, C. J., and TONGUE, HOWELL, ^* LENT, LINDE and PETERSON, JJ.

PETERSON, Justice.

This case concerns the liability of a school district, as an occupier of premises, for injuries to a licensee arising from the activities of school children engaged in a game in the defendant's gymnasium. Plaintiff had verdict and judgment, but upon motion of the defendant, the trial court eventually entered judgment for the defendant notwithstanding the verdict. ¹ The Court of Appeals affirmed, Ragnone v. Portland Sch. Dist. No. 1J, 44 Or.App. 347, 605 P.2d 1217 (1980). We allowed review, ORS 2.520, primarily to consider whether the nature of the duty of a land occupier should continue to depend upon the status of the entrant as invitee or licensee.

1. The facts

Plaintiff, a 61-year-old woman, had been employed as a cafeteria worker at Sellwood Middle School in Portland for several years and was on a medical leave of absence following major surgery. She was invited to attend, and did attend, a birthday party for the cafeteria manager at the school. After the party, the cafeteria manager was summoned to the school office. Plaintiff accompanied her, taking the route "we always took" across a gymnasium floor adjacent to the kitchen.

When the cafeteria manager had finished her business in the school office, the two women started to return to the kitchen to pick up their coats and purses. They used the same route they had taken previously, but on the return trip the gymnasium was being used by a group of students playing bench ball, a game of elimination where students try to hit one another below the shoulders with the ball. The participants were seventh and eighth graders. The teacher responsible for supervision of the students was not present.

Before traversing the gym floor on the return trip, the cafeteria manager called out to the students asking that they stand still and discontinue the game until the women reached the kitchen. When they were approximately two-thirds of the way across the gymnasium, one or two of the students bumped into the plaintiff, knocking her to the floor whereupon her hip was broken.

Evidence was presented at trial that teachers were instructed not to leave classes unsupervised. The defendant's gym instructor testified that it was not appropriate for an adult supervising the gym class to leave the gym floor during the progress of a game. In addition, the defendant's regulations provided that students were not to be left unsupervised. The evidence is uncontroverted that plaintiff's injury occurred when she was knocked down by a student in an unsupervised class. Evidence was introduced that such occasions as the one attended by plaintiff were common at the school and condoned by the school administration, and that plaintiff was specifically invited to attend the event. From this evidence it was permissible for the jury to conclude that failure to supervise a physically active gym class was conduct creating an unreasonable risk of injury to plaintiff. Even so, both the trial court and the Court of Appeals held, as a matter of law, that the plaintiff was not entitled to recover. We therefore turn to an analysis of the reasoning of the trial court and Court of Appeals.

2. The reasoning of the trial court and the Court of Appeals

The plaintiff's second amended complaint contained several allegations of negligence, only two of which were submitted to the jury. Those charges of negligence were:

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

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

The trial court, in granting the defendant's motion for judgment notwithstanding the verdict, stated, "There was no active negligence committed by the defendant or its agents in this case. * * * " The Court of Appeals affirmed for essentially the same reason, saying:

"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 provide proper supervision,' are allegations of passive negligence as opposed to affirmative negligence. They allege omissions by the defendant.

" * * *.

"In this case the seventh or eighth grade boys who 'bumped' into the plaintiff may have engaged in affirmative activity, but those are not the acts of negligence alleged in the second amended complaint.

"The plaintiff's proof in support of specifications #2 and #4 did not tend to prove any negligence beyond failure to maintain proper control and failure to provide proper supervision." (Emphasis added.) Ragnone v. Portland School District No. 1J, 44 Or.App. 347, 352, 605 P.2d 1217 (1980).

3. "Active" versus "passive" negligence a misnomer when

applied to the activities of an occupier

The rule in Oregon, long established and fairly well understood and applied (with one exception, which is discussed below), is that an occupier of land has these duties to licensees:

1. As to conditions of the land, the occupier is liable for injuries arising from the occupier's willful or wanton act, and for that gross negligence "which is equivalent to willfulness or wantonness." Elliott v. Rogers Construction, 257 Or. 421, 431, 479 P.2d 753 (1971). In addition, the occupier must warn of any pitfall or trap known ² 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 P.2d 262 (1967). ³

2. As to activities on the land, the occupier has a duty to exercise reasonable care for the protection of a licensee. Blystone v. Kiesel, supra, 247 Or. at 531, 431 P.2d 262.

Our prior decisions often have stated the duty of the occupier in terms of "active," "affirmative" or "passive" negligence. For example, in Elliott v. Rogers Construction, supra, the rule is stated that the occupier " * * * also owes a duty to a licensee not to injure the licensee through active or affirmative negligence. * * * " 257 Or. at 431-432, n. 1, 479 P.2d 753. Blystone v. Kiesel, supra, states that the occupier had a duty " * * * not to injure (the licensee) through active or affirmative negligence * * *." 247 Or. at 530-531, 431 P.2d 262.

Stating the duty in terms of active or passive negligence has led to confusion. This case is illustrative. Both the trial court and the Court of Appeals erroneously equated active negligence with commission, passive negligence with omission. The term "active negligence" or "affirmative negligence," as used in our previous decisions, refers to the negligent conduct of activities upon the land, and the term "passive negligence," as used in our previous decisions, refers to hazards arising from the physical condition of the land, the existence of which normally does not create liability in favor of an injured person. ⁴ "Active negligence" does not equate with commission; "passive negligence" does not equate with omission. See Elliott v. Rogers Construction, 257 Or. 421, 479 P.2d 753 (1971) (highway contractor not liable to licensee injured because of condition of an unopened highway); Blystone v. Kiesel, 247 Or. 528, 532, 431 P.2d 262 (1967) (homeowner liable to licensee when homeowner was running down the hallway and collided with the licensee); Burch v. Peterson, 207 Or. 232, 234, 295 P.2d 868 (1956) (homeowner not liable to social guest who was injured when a step gave way). It would be better if we cease to refer to "active" or "passive" negligence, and state the rule in terms of conditions upon or within the premises as contrasted with activities carried on upon the premises.

Whether a school district is conducting activities at a public park not owned or controlled by the district or in a school gymnasium owned and controlled by it, the risk of injury from such activities to persons whose presence is known may be similar, even identical. The fortuitous circumstance that the plaintiff was standing on land belonging to the defendant is largely irrelevant in a case where injury arises from an activity, Blystone v. Kiesel, supra, 247 Or. at 532, 431 P.2d 262. ⁵ While there may be cases in which it may be difficult to say, as a matter of law, whether the injury arose from a "condition" of the premises, as distinct from an "activity" carried on upon the premises, no such difficulty exists here.

The plaintiff alleged that the defendant was negligent in conducting an activity without adequate supervision and without maintaining proper control. Although these allegations, in a sense, allege omissions to act, the carrying on of the activity without maintaining "proper control" is no more an omission to act than is the driving of an automobile on a highway without maintaining "proper control." In view of the fact that the plaintiff was lawfully on the premises, whether she was an invitee or a licensee, under the authorities cited above, the defendant had an obligation to...