Uihlein v. Albertson's, Inc.

CourtSupreme Court of Oregon
Writing for the CourtBefore HOLMAN, P. J., HOWELL and LENT, JJ., and GILLETTE; LENT
Citation580 P.2d 1014,282 Or. 631
Decision Date20 June 1978
PartiesPriscilla M. UIHLEIN, Appellant, v. ALBERTSON'S, INC., Respondent.

Page 1014

580 P.2d 1014
282 Or. 631
Priscilla M. UIHLEIN, Appellant,
v.
ALBERTSON'S, INC., Respondent.
Supreme Court of Oregon,Department 1.
Argued and Submitted Jan. 13, 1978.
Decided June 20, 1978.

[282 Or. 632] Charles Robinowitz, Portland, argued the cause and submitted briefs for appellant.

Elizabeth Reeve and Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With them on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and James F. Spiekerman, Portland.

Before HOLMAN, P. J., HOWELL and LENT, JJ., and GILLETTE, J. Pro Tem.

[282 Or. 633] LENT, Justice.

This is an action by a business visitor for damages for injuries allegedly resulting from negligence of the defendant retail storekeeper. Defendant's motion for summary judgment was granted, and judgment was given for defendant for costs and disbursements. Plaintiff appeals, and we affirm.

The sole issue on appeal is whether the pleadings, depositions and affidavits

Page 1015

presented to the trial judge upon consideration of the motion "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ORS 18.105(3)

Plaintiff particularly alleges:

" * * * * *

"(Plaintiff, while a customer in the store, was struck from the rear by an unknown third party.)

"Plaintiff's injuries were proximately caused by the negligence of the defendant in that defendant knew or should have known that its supermarket on Cully Boulevard is in an area where the commission of violent crimes is reasonably foreseeable and it failed to provide any security forces, warning, alarms, unusual lighting to protect patrons of its supermarket and discourage the commission of crimes therein.

"(The unknown third party, in addition to injuring plaintiff, took money from her.)

" * * * * * "

Defendant's motion for summary judgment was "based upon" the pleadings (plaintiff's amended complaint and defendant's general denial answer), the depositions of plaintiff, Roger Hough (defendant's assistant Cully Boulevard store manager), Donald C. Davis (defendant's Cully Boulevard store director) and Donovan W. Humphreys (plaintiff's investigator), the affidavit of Donald C. Davis, and the affidavit of Joe Maresh (Davis' predecessor at defendant's Cully Boulevard store). It is unclear from the record whether plaintiff's affidavit was before the trial court, but in [282 Or. 634] their briefs the parties have treated it as so, and we do the same.

In considering whether to grant a motion for summary judgment, the court, as a general rule, must draw all inferences of fact from the depositions and affidavits against the moving party and in favor of the party opposing the motion. Forest Grove Brick v. Strickland, 277 Or. 81, 87, 559 P.2d 502 (1977). 1 Assuming that plaintiff will have put her best foot forward in summarizing the evidence, including inferences, 2 we turn to the "Statement of Material Facts" in her brief. 3 We, therefore, with one exception hereinafter noted, adopt as being facts the statement from plaintiff's brief:

"On December 11, 1975, the plaintiff, Mrs. Priscilla Uihlein, was shopping in an Albertson's supermarket on Northeast Cully Boulevard and 60th Street in Portland at between 9:00 and 9:30 p. m., when a young unidentified black man knocked her to the floor from behind, grabbed her pocketbook which was slung over her left shoulder, and ran from the back of the store out the front door. As a result of this theft, the plaintiff, a 53-year-old woman, suffered injuries to her shoulder and neck, and lost thirty dollars in cash from her pocketbook. * * *

"The supermarket is located in a high crime rate area in Northeast Portland, and the manager in charge of the store at the time of the incident, Roger Hough, described it as the roughest store where he has worked, and that he felt uneasy when he was at the store. He had asked for some security protection previously, but Albertson's refused this because it was too expensive. (Humphreys depos., Ex. 2, p. 8) Another manager of that particular store said there were times when he felt 'spooky' at the store, and the store had a substantial amount of shoplifting. * * *

[282 Or. 635] "Other than a policy of prosecuting all shoplifters who are caught and asking customers and employees to be alert for shoplifting, the defendant did not take any security precautions to discourage

Page 1016

commission of any crimes. * * * It had no security guards, photo equipment, alarm systems or unusually bright lighting in the parking lot. * * * Other supermarkets in the general area such as Fred Meyer's at Northeast 70th Street and Sandy Boulevard, Safeway's at Northeast 42nd Street and Killingsworth and Big C at Northeast 33rd Street and Killingsworth had some security protection on December 11, 1975. * * *

"At the time of plaintiff's injury, the store was not crowded, and there were only about six or seven employees on duty, most of whom were behind counters or at the checkout stands at the front of the store. * * * The robbery and assault on the plaintiff took place at the rear of the store." (underscoring added) 4

We direct specific attention to the underscored matter, because plaintiff relies upon it to predicate negligence upon defendant's part on at least five of the thirteen pages of her opening brief and on two of the five pages of her reply brief. Typical of the use of the underscored material is the following from the reply brief:

"Albertson's final argument is that Mrs. Uihlein's injury was not foreseeable because it had no knowledge of prior assaults in the store. * * * But this argument ignores again the statements of Roger Hough that this was the roughest store where he had worked, that he felt uneasy at the store, and he had asked for security protection. Humphreys depos., Ex. 2, p. 8. One permissible inference from these statements is that Roger Hough foresaw the threat of harm to Albertson's patrons and understandably he was concerned. This alone should dispose of this contention." (underscoring added)

[282 Or. 636] It is true that "Humphreys depos., Ex. 2, p. 8" does contain the deponent's testimony that defendant's store manager Hough admitted to deponent Humphrey that this was the roughest store he had ever worked at and, also, that he felt uneasy at times when he was at the store. It is simply not true that the Humphrey deposition Exhibit 2 5 shows that store manager Hough had asked defendant for security protection and that defendant had denied its store manager's request "because it was too expensive"; moreover, the expenditure of a considerable amount of judicial time occurred in a fruitless search of the record 6 to ascertain whether the underscored material appeared elsewhere and the inaccuracy of the source citation was merely inadvertent. Such evidence simply does not exist in the record. We are disappointed in counsel, but we do not decide against his client on that basis; neither, of course, shall we lean...

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84 practice notes
  • Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J
    • United States
    • Supreme Court of Oregon
    • March 17, 1987
    ...Restatement (Second) Torts § 344 (1965). See Brown v. J.C. Penney Co., 297 Or. 695, 688 P.2d 811 (1984); Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Whelchel v. Strangways, 275 Or. 297, 550 P.2d 1228 The dissent in the Court of Appeals distinguished these decisions on g......
  • Piazza ex rel. Piazza v. Kellim, S063442 (Control)
    • United States
    • Supreme Court of Oregon
    • July 21, 2016
    ...to protect the nightclub's visitors from reasonably foreseeable criminal acts by third persons. See, e.g. , Uihlein v. Albertson's, Inc ., 282 Or. 631, 639, 580 P.2d 1014 (1978) (noting that this court previously had adopted standard set out in Restatement (Second) of Torts section 344 comm......
  • Stewart v. Kids Inc. of Dallas, 07P1791; A139501.
    • United States
    • Court of Appeals of Oregon
    • August 31, 2011
    ...foreseeable criminal acts of third persons.” 210 Or.App. at 610, 152 P.3d 918 (citing, among other cases, Uihlein v. Albertson's, Inc., 282 Or. 631, 639, 580 P.2d 1014 (1978), and Torres v. United States Nat. Bank, 65 Or.App. 207, 211, 670 P.2d 230, rev. den., 296 Or. 237, 675 P.2d 491 (198......
  • Scheffel v. Or. Beta Chapter of Phi Kappa Psi Fraternity, 1010510, A152194.
    • United States
    • Court of Appeals of Oregon
    • September 2, 2015
    ...is the specific evidence needed. Two recent cases, with contrasting outcomes, will sharpen our focus.In Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978), a supermarket shopper was assaulted and her pocketbook stolen by an unknown assailant. She alleged a lack of security, arg......
  • Request a trial to view additional results
84 cases
  • Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J
    • United States
    • Supreme Court of Oregon
    • March 17, 1987
    ...Restatement (Second) Torts § 344 (1965). See Brown v. J.C. Penney Co., 297 Or. 695, 688 P.2d 811 (1984); Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Whelchel v. Strangways, 275 Or. 297, 550 P.2d 1228 The dissent in the Court of Appeals distinguished these decisions on g......
  • Piazza ex rel. Piazza v. Kellim, S063442 (Control)
    • United States
    • Supreme Court of Oregon
    • July 21, 2016
    ...to protect the nightclub's visitors from reasonably foreseeable criminal acts by third persons. See, e.g. , Uihlein v. Albertson's, Inc ., 282 Or. 631, 639, 580 P.2d 1014 (1978) (noting that this court previously had adopted standard set out in Restatement (Second) of Torts section 344 comm......
  • Stewart v. Kids Inc. of Dallas, 07P1791; A139501.
    • United States
    • Court of Appeals of Oregon
    • August 31, 2011
    ...foreseeable criminal acts of third persons.” 210 Or.App. at 610, 152 P.3d 918 (citing, among other cases, Uihlein v. Albertson's, Inc., 282 Or. 631, 639, 580 P.2d 1014 (1978), and Torres v. United States Nat. Bank, 65 Or.App. 207, 211, 670 P.2d 230, rev. den., 296 Or. 237, 675 P.2d 491 (198......
  • Scheffel v. Or. Beta Chapter of Phi Kappa Psi Fraternity, 1010510, A152194.
    • United States
    • Court of Appeals of Oregon
    • September 2, 2015
    ...is the specific evidence needed. Two recent cases, with contrasting outcomes, will sharpen our focus.In Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978), a supermarket shopper was assaulted and her pocketbook stolen by an unknown assailant. She alleged a lack of security, arg......
  • Request a trial to view additional results

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