Scott v. Mercer Steel Co., Inc.

• Decision Date: 16 November 1972
• Citation: 263 Or. 464,503 P.2d 1242
• Parties: Ann B. SCOTT (Bensel), Respondent, v. MERCER STEEL CO., INC., et al., Defendants, Allen C. Edwards Realty Co., Appellant.
• Court: Oregon Supreme Court

Page 1242

503 P.2d 1242

263 Or. 464

Ann B. SCOTT (Bensel), Respondent, v. MERCER STEEL CO., INC., et al., Defendants Allen C. Edwards Realty Co., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 11, 1972.

Decided Nov. 16, 1972.

Austin W. Crowe, Jr., Portland, argued the cause for appellant. With him on the briefs were Cosgrave & Kester, Portland.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were McColloch, Dezendorf, Spears & Lubersky and Robert E. Maloney, Jr., Portland.

TONGUE, Justice.

This is an action for damages for personal injuries sustained in walking through a glass panel adjacent to a glass door in defendant's realty office. Defendant appeals from a verdict and judgment in favor of plaintiff.

Defendant's principal assignments of error arise from the denial of motions for an involuntary nonsuit and for a directed verdict. It thus becomes necessary to review the evidence, bearing in mind the rule that in such cases the evidence must be viewed in the light most favorable to the plaintiff and that plaintiff is entitled to the benefit of every reasonable inference which may be drawn from the evidence. Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 218, 358 P.2d 1062, 368 P.2d 737 (1962).

Defendant is a corporation engaged in the realty business. One of its offices is located in the garage area of one of the model homes in the Somerset West residential subdivision in Washington county in space leased by defendant from the owner of that building. The office was in a room with a desk and tripods used for the display of maps of the area. The front of the office, originally designed as the front of a double garage, had been remodeled so as to include two large glass panels in the space originally designed for one garage door and a glass door, as well as an adjoining glass panel, in the space originally designed for the other garage door. The three glass panels and the glass door were all approximately the same height, but there was a low 'ledge' of two or three inches at the bottom of the glass panels.

Plaintiff had purchased a house from defendant in Somerset West two months prior to the accident and had been in the office 'quite a few times.' Her last previous visit, however, had been about a month and a half before the accident. According to her testimony (although not without some contradiction by prior statements on deposition), on all of her prior visits the glass door to the office had been closed and had to be opened by her, while on the day of the accident it had been 'propped' open. Also, at the time of her prior visits, a desk had been located in the interior of the office in front of the glass panel adjacent to the door, and the weather had been cloudy and rainy. In addition, at the time of her prior visits plaintiff had left the office from a position near the desk and 'in front' of the door and had never been in the 'back' of the room before so as to have an occasion to leave the room starting from a position 'at an angle' with the door.

On July 17, 1969, the day of the accident, plaintiff went to defendant's office to report that her hot water heater was leaking. According to her testimony, it was a beautiful sunny day and the office door had been 'propped' in an open position, 'swinging to the outside.' Upon entering the open door she found no one in the office. She waited for a time, looking at the maps exhibited of the area and diagrams of the schools which were scheduled to be built.

Plaintiff then turned to leave and saw her mother-in-law and child in her car parked in the driveway outside. According to her testimony, the glass panel was clear and was without drapes or 'markings' of any kind. She could see the open door (in its 'propped out' position) adjacent to the glass panel and assumed that it was the open area of the doorway.

She was then standing six or seven feet from the doorway, apparently at some 'angle' from the doorway, but directly in front of the glass panel. From that position she started toward what she believed to be the open doorway, but what was actually the adjacent glass panel. That panel, made of 3/16 inch crystal glass, rather than tempered or safety glass, shattered on impact, causing severe injuries to plaintiff's leg.

Plaintiff's outlook through the clear glass panel adjacent to the 'propped open' door is shown by the following photographic exhibit, except that this exhibit does not show the narrow 'ledge' at the bottom of the glass panel. Plaintiff admitted prior knowledge of the existence of that 'ledge' at the bottom of the glass panel, but on the day of the accident believed the glass panel to be the open doorway.

EXHIBIT 4

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to the final report in June 1970 of the National Commission on Product Safety:

'Every year, about 150,000 victims of broken windows, doors, or glass walls discover that what they can't see can hurt them. About 100,000 walked through glass doors last year, probably believing the space to be open. If the doors had been safety glazed, most of the serious injuries would not have occurred. But the fragile, brittle panels of ordinary glass shatter even under a light blow from a child. The crystal knives and daggers slice through the hand or wrist, cut vital organs, and cause permanent disfigurement, paralysis, or death. * * *' S.Rep. No. 225, 90th Cong., 1st Sess. 12 (1970).

In response to public hearings on this problem, several states, including Oregon, adopted legislation to require safety glazing in glass doors and adjacent glass panels. ¹ See ORS 447.150. ²

However, the building in which defendant's office was located and in which this accident occurred was constructed in 1964 and was occupied by defendant in 1965, prior to the effective date of that statute on July 1, 1970. ³ The accident also occurred prior to that date. ⁴ Accordingly, plaintiff's rights and defendant's liability in this case must be considered and determined based upon Oregon law as it existed as of the date of this accident on July 17, 1969. ⁵

Defendant has summarized its contentions on this question as follows:

'A. The presence of a glass window and doorway on premises does not, as a matter of law, constitute a dangerous condition (Restatement of Torts 2d § 343), and there is no duty to warn an invitee of their presence Where the conditions and the danger of injury are open and obvious under circumstances where the possessor has no reason to anticipate the harm (Restatement of Torts 2d § 343A).

'B. An invitee who has previously entered premises on eight occasions through a glass doorway with glass panels on either side, who has also departed through the same doorway on eight occasions, and who has again entered the premises through the doorway shortly before the incident, has knowledge of The conditions which are open and obvious and of the risk of injury, and is contributorily negligent as a matter of law for failing to maintain a proper lookout and failing to exercise her senses and faculties for her own safety, Where there was no distraction or excuse for her failure to see the window.' ⁶ (Emphasis added)

Defendant also says that:

'* * * It is common knowledge that store fronts of solid clear glass paneling are commonly accepted as sound and safe building construction, and it is not considered a type of construction that is dangerous in itself.'

It is at least tacitly recognized by defendant, however, that the result may be otherwise in cases in which there is a 'deceptive appearance' about the glass door or glass panel, in view of defendant's further contentions that '(t) here was no evidence that defendant knew that the glass panel and door created a deceptive appearance or a dangerous condition'; that '(t)he duty to keep premises safe for invitees applies only to conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care'; that the only dangerous condition claimed by plaintiff was the deceptive appearance of the glass, and that plaintiff's contention that the glass in the window panel was deceptive and appeared to be a doorway was 'no excuse,' particularly in view of plaintiff's previous visits and awareness of the glass window panel.

Plaintiff contends, to the contrary, that '(t)his is not the case of an open and notorious condition on the premises, but rather of a deceptive (and therefore hidden) condition which was dangerous to any invitee such as plaintiff who might be misled by it'; that the unmarked glass panel adjacent to the open door presented a deceptive illusion of open space which deceived this plaintiff; and that in such cases the courts have held that a plaintiff who walks into or through such a glass door or panel is entitled to recover damages for his injuries against the possessor of the building. ⁷

Although some of the cases cited by plaintiff may be distinguishable on their facts, they support this proposition, which is consistent with prior decisions of this court, although we have not had occasion to previously decide this particular question. ⁸ We have also examined the case cited by defendant. ⁹ Most of them may be distinguished on their facts. To the extent, however, that they are inconsistent with our decision in this case we do not find them to be persuasive.

The question remains, however, whether there was evidence in this case from which the jury could properly find that this unmarked glass panel presented a deceptive appearance of open space to persons leaving defendant's office involving an unreasonable risk of harm to invitees of which defendant was or should have been aware, so as to impose liability upon plaintiff. Similarly, the question remains whether, under such evidence, the jury could properly find that this...