Taylor v. Baker

• Decision Date: 12 July 1977
• Citation: 566 P.2d 884,279 Or. 139
• Parties: C. O. TAYLOR, Appellant, v. Larry BAKER and Judith Baker, Respondents. Lillian C. TAYLOR, Appellant, v. Larry BAKER and Judith Baker, Respondents.
• Court: Oregon Supreme Court

Page 884

566 P.2d 884

279 Or. 139

C. O. TAYLOR, Appellant, v. Larry BAKER and Judith Baker, Respondents.

Lillian C. TAYLOR, Appellant, v. Larry BAKER and Judith Baker, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 5, 1977.

Decided July 12, 1977.

Darrell F. Bewley, Portland, argued the cause for appellants. With him on the briefs were James C. Niedermeyer and Niedermeyer & Bewley, Portland.

James C. Tait, Oregon City, argued the cause for respondents. With him on the brief were Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City.

BRYSON, Justice.

Plaintiff, Lillian Taylor, brought this action ¹ to recover damages for injuries sustained as a result of a fall from a second-story window of defendants' residence. The first of plaintiff's two counts alleges that plaintiff was upon defendants' premises "for a business purpose of interest and benefit to defendants and each of them" and "(t)hat defendants and each of them knew, or in the exercise of reasonable diligence should have known, that the manner of construction and maintenance of said premises were likely to cause injury, but defendants, and each of them, failed and neglected to give plaintiff any warning of said conditions."

The second count alleges that "plaintiff was upon the said premises at defendants request and invitations" and "(t)hat the aforesaid conditions were concealed from this plaintiff and defendants and each of them knew that plaintiff could not discover them, but they failed and neglected to give plaintiff any warning thereof."

Defendants moved, pursuant to ORS 18.105, for partial summary judgment on plaintiff's first count and offered in support of their motion the depositions of Lillian and C. O. Taylor, the only evidence in this case.

The trial court found "there is no genuine issue as to the plaintiff not being at the defendants' premises for a business purpose of interest and benefit to defendants and each of them" and granted partial summary judgment as to plaintiff's count 1. ² The trial court's order also gave plaintiff 15 days within which to plead further.

Plaintiff chose not to plead further and, determining that no case could be proven under the second count, moved the trial court to enter an order of voluntary nonsuit. The motion was allowed, and plaintiff now seeks review of the trial court's order allowing partial summary judgment.

Plaintiff's sole assignment of error is as follows:

"The court erred in granting the motion for summary judgment on the ground and for the reason that it was a jury question whether defendants had exercised the proper degree of care."

Defendants first contend that "judgments of voluntary non-suit are not appealable judgments" and that this appeal must be dismissed. In Steenson v. Robinson, 236 Or. 414, 416-17, 385 P.2d 738, 739 (1964), we acknowledged that "(i)t is the general rule that a party may not appeal from a judgment which he voluntarily requested." (Annotations omitted.) The right to appeal is denied to a plaintiff requesting voluntary nonsuit as a matter of judicial policy and not because of statutory prohibition. However, the fact that the final order was entered to plaintiff's request for nonsuit does not necessarily preclude review in this case. In Farris v. U. S. Fidelity & Guaranty, 273 Or. 628, 630-31, 542 P.2d 1031 (1975), we noted that an order of nonsuit may "determine" a case for purposes of ORS 19.010(2)(a) even though plaintiff may refile his lawsuit, and allowed appeal from a final order of voluntary nonsuit. In that case it was held that a request for voluntary nonsuit which is necessitated by a prior trial court ruling precluding recovery is not in fact voluntarily requested and should not bar appeal.

As a policy matter, the difficulty in determining whether or not appeal should be allowed lies in separating those cases where the summary judgment determines the action from those where the plaintiff merely seeks premature appellate review of an interlocutory partial summary judgment order.

We have consistently followed a policy of not allowing piecemeal appeals. ³ This policy would be defeated if litigants were permitted to seek appellate review of one portion of their claim while holding other theories in abeyance, to be refiled in the event of an adverse appellate ruling.

We believe that appeal of partial summary judgments should be generally allowed after entry of an order of nonsuit under the circumstances of this case. The doctrine of res judicata should prevent the problems of piecemeal appeal that would argue against allowing such appeal.

In Dean v. Exotic Veneers, Inc., 271 Or. 188, 531 P.2d 266 (1975), we discussed the purpose underlying the doctrine of res judicata as follows:

"The principal purposes of res judicata are prevention of harassment of defendants by successive legal proceedings as well as economy of judicial resources. Its scope is related to the limits upon the various forms of relief which may be requested in one proceeding and the limitations upon amendments to pleadings during trial. As permissible joinder of requests for various forms of relief and amendments during trial become broader and more liberal, the reasons behind res judicata dictate that parties to actions be required to make use of such liberal procedures and not be permitted to protract litigation through a multiplicity of suits or actions which can be disposed of in one proceeding. See Clark on Code Pleading 472-78 (2d ed. 1947); also, Jarvy v. Mowrey, 235 Or. 579, 583, 385 P.2d 336 (1963). * * * " 271 Or. at 192, 531 P.2d at 268.

Res judicata applies not only to every claim included in the pleadings but also to every claim which could have been alleged under the same "aggregate of operative facts which compose a single occasion for judicial relief." Del Monte Meat Co., Inc. v. Hurt, 277 Or. 615, 617, 561 P.2d 627, 628 (1977); Dean v. Exotic Veneers, Inc., supra, 271 Or. at 196, 531 P.2d 266.

A plaintiff's willingness to forego litigation on alternative theories should be sufficient to guarantee that the partial summary judgment had the effect of rendering plaintiff's nonsuit truly involuntary.

ORS 18.250 provides that "(w)hen a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause." However, we do not find this provision to be applicable to cases, such as the one at bar, where the nonsuit is only the formal termination of a case which by plaintiff's own admission has in fact been determined by the trial court's decision to grant partial summary judgment as to one count. Consequently, the doctrine of res judicata should be just as applicable as if it were the summary judgment which had in form as well as in fact been the final order terminating the case.

Plaintiff's appeal is properly before us. We turn now to the merits of the case and plaintiff's assignment of error. In Forest Grove Brick v. Strickland, 277 Or. 81, 87, 559 P.2d 502, 506 (1977), we discussed the duties of an appellate court when reviewing a summary judgment and held:

"To warrant summary judgment the moving party must show that there is no genuine issue of material fact. It is not the function of this court on review to decide issues of fact but solely to determine if there is an issue of fact to be tried. We review the record on summary judgment in the light most favorable to the party opposing the motion." (Footnote omitted.)

When so reviewed, the record reveals plaintiff to have gone unannounced and uninvited to defendants' residence to collect money owed to them for certain antiques purchased by defendants. This was the first time plaintiff had ever been to defendants' home.

Plaintiff was greeted at the door by defendant Larry Baker and at his invitation entered the house and went into the family room. There they were joined by defendant Judith Baker, wife of Larry Baker, and at defendants' invitation plaintiff was taken on a tour of the house. The only explanation for this tour was that given by plaintiff, who stated that it was "just (that) they were just proud of it because they had been working on it so long."

Plaintiff was injured when she fell through the upstairs window while being shown the house by defendants.

Plaintiff first asks this court to overrule the rule long recognized by this court that the duty owed by a possessor of land depends upon the purpose for which the injured party was upon the land at the time of his injury. See Rich v. Tite-Knot Pine Mill, 245 Or. 185, 191-92, 421 P.2d 370 (1966); Lange v. St. Johns Lumber Co., 115 Or. 337, 237 P. 696 (1925). Because of our holding regarding application of Restatement of Torts (Second) 176, § 332, and the posture of this case, without evidence, we do not reach this contention. The trial court's order of partial summary judgment will be affirmed if the evidence shows there to be no factual dispute that plaintiff was not a business invitee at the time of her accident. ⁴

Two tests are currently applied to determine whether plaintiff's status on the premises was that of an invitee: the economic benefit test and the invitation test. ⁵ The rule expressed in Restatement of Torts (Second), § 332, provides as follows:

"(1) An invitee is either a public invitee or a business visitor.

"(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

"(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."

In this case we are only concerned with the application of the economic benefit or business visitor test, Restatement of Torts (Second), § 332(3), as plaintiff chose to take a nonsuit on the count alleging the invitation test.

It is sufficient under the Restatement that the plaintiff...