Vandeveere–pratt v. Portland Habilitation Ctr. Inc.

• Decision Date: 04 May 2011
• Docket Number: 080506953; A142843.
• Citation: 259 P.3d 9,242 Or.App. 554
• Parties: Teresa VANDEVEERE–PRATT, Plaintiff–Appellant,v.PORTLAND HABILITATION CENTER, INC., an Oregon nonprofit corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

242 Or.App. 554

259 P.3d 9

Teresa VANDEVEERE–PRATT, Plaintiff–Appellant,

v.PORTLAND HABILITATION CENTER, INC., an Oregon nonprofit corporation, Defendant–Respondent.

080506953; A142843.

Court of Appeals of Oregon.

Argued and Submitted Jan. 25, 2011.Decided May 4, 2011.

Maureen Leonard argued the cause for appellant. With her on the briefs was Jon Zbinden.Todd S. Baran argued the cause and filed the brief for respondent.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.NAKAMOTO, J.

Plaintiff appeals a judgment for defendant in this slip and fall case, assigning error to the trial court's failure to give one instruction to the jury and its decision to give another. We hold that the trial court erred in failing to give the first instruction and that the second instruction was potentially misleading; we therefore reverse the trial court's judgment.

We state the facts in the light most favorable to the giving of the challenged instructions. See Hernandez v. Barbo Machinery Co., 327 Or. 99, 101 n. 1, 957 P.2d 147 (1998). Defendant has a contract to provide janitorial services for the Portland International Airport. Early on the morning of August 12, 2007, Hurtell, defendant's employee, was working on Concourse C of the airport. Most of the concourse is carpeted, but a segment that passes through a food court is made of terrazzo, a surface that consists of marble and granite chips ground to a smooth surface and then sealed. As part of his work, Hurtell mopped that area shortly before 2:00 a.m. He placed warning markers at each end of the terrazzo area.

Plaintiff and her assistant returned from a business trip on a delayed plane that arrived at Concourse C at about the time that Hurtell was mopping the terrazzo area. After leaving the plane, they walked down the concourse at a normal pace, heading to the baggage claim area. Possibly because other passengers from the plane were walking down the concourse at the same time, neither of them saw either Hurtell or the warning markers that he had placed. While they were walking through the terrazzo area, plaintiff slipped on the surface and fell, breaking her ankle. As a result of the injury, plaintiff has permanent loss of function in her ankle and suffered substantial economic and noneconomic damages.

There is evidence from which a jury could find that the terrazzo surface was very wet and slippery at the time of plaintiff's fall. Plaintiff's clothes became soaked and her hair became wet as she lay on the floor waiting for help. Although the floor normally dries within 10 to 15 minutes after a mopping, over half an hour after the fall, Hurtell's supervisor wiped up standing water from an area two or three feet from where plaintiff fell. Plaintiff's expert testified that a wet terrazzo floor is almost as slippery as an ice surface. He stated that the standard of care for mopping a terrazzo floor is to block off one side of the terrazzo area, mop that area, and, after the blocked-off area has dried, block off the other side and mop it. Defendant follows that procedure when it strips and waxes the surface but not when it mops it. Defendant's supervisor also testified that, if she had known that a delayed plane was coming in, she would probably have waited to have Hurtell mop the area.

The parties tried the case as one involving potential premises liability. Plaintiff alleged that defendant had a duty “to protect plaintiff from hazardous conditions” and “to remove hazardous conditions” on the premises but was negligent in, among other things, “[f]ailing to correct a dangerous condition of water on the floor in the area of Concourse C by the Wendy's Restaurant such that [it] became an unreasonably dangerous slip hazard.” Based on those allegations and on the evidence, plaintiff asked the court to give Uniform Civil Jury Instruction 46.09, which states:

“It is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise reasonable care to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise reasonable care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid harm.

“If you find that the condition that existed could not be encountered with reasonable safety even if the danger was known and appreciated by the invitee, the possessor is obligated to do more than warn; the possessor must take reasonable and feasible steps to eliminate the danger.”

The trial court gave the first paragraph of the instruction but refused to give the second paragraph. In her first assignment of error, plaintiff challenges that refusal.

We apply several legal standards in our review of claimed instructional error. As a general rule, “parties in a civil action are entitled to jury instructions on their theory of the case if their requested instructions correctly state the law, are based on the current pleadings in the case, and are supported by evidence.” Hernandez, 327 Or. at 106, 957 P.2d 147. The requested instruction need not be given unless it pertains “to a material issue in the case on which the court otherwise has not instructed the jury fully.” Id. And, even if the failure to give a correct instruction is erroneous, an appellate court will not reverse unless the error “substantially affected” a party's rights. ORS 19.415(2); Shoup v. Wal–Mart Stores, Inc., 335 Or. 164, 174, 61 P.3d 928 (2003) (brackets omitted). “[W]hen a trial court incorrectly instructs the jury on an element of a claim or defense and when that incorrect instruction permits the jury to reach a legally erroneous result, a party has established that the instructional error substantially affected its rights.” Wallach v. Allstate Ins. Co., 344 Or. 314, 329, 180 P.3d 19 (2008).

By giving the jury the first paragraph of Uniform Civil Jury Instruction 46.09, the trial court told it that defendant could satisfy its duty to make the terrazzo area reasonably safe for plaintiff either by warning of the dangerous condition or by eliminating it. Based on that paragraph alone, the jury would have understood that, because a warning would be sufficient, defendant did not have to correct the condition. The second paragraph would have modified that rule by telling the jury in addition that, if plaintiff could not encounter the condition with reasonable safety even if plaintiff knew and appreciated its dangerousness—that is, if the condition was unreasonably dangerous—a warning would not be sufficient. In that case, defendant would have had to take reasonable and feasible steps to eliminate the danger.

The legal support for the second paragraph of the proposed instruction is found in two Supreme Court decisions. Wilk v. Georges, 267 Or. 19, 514 P.2d 877 (1973); Dawson v. Payless for Drugs, 248 Or. 334, 341, 433 P.2d 1019 (1967) (plaintiff's knowledge of ice in defendant's parking lot did not prevent jury from finding defendant negligent, when jury could find ice made the lot unreasonably dangerous and it was feasible for defendant to remove it). In Wilk, the plaintiff did not see posted warning signs and slipped on wet planks that the defendant had placed around its garden supply business. 267 Or. at 21, 514 P.2d 877. On appeal, the Supreme Court held that the trial court erred when it instructed the jury that a warning satisfied the defendant's obligation to the plaintiff. Id. at 26, 514 P.2d 877. Relying on Dawson, the court held that the trial court should have instructed the jury that if it found

“that the condition that existed was unreasonably dangerous—a condition which cannot be encountered with reasonable safety even if the danger is known and appreciated—the owner of the premises is obligated to do more than post warning signs; [the owner] must take reasonable and feasible steps to obviate the danger.”Wilk, 267 Or. at 26, 514 P.2d 877. Because there was evidence to support a finding that the condition was unreasonably dangerous, it reversed the judgment for the defendant. Id. at 27, 514 P.2d 877.

The second paragraph of the instruction correctly states the law as the Supreme Court described it in Wilk. Defendant does not seem to argue otherwise. Rather, defendant argues that the second paragraph is immaterial to an issue in the case. It asserts that Wilk applies only to a possessor's failure to ameliorate a hazardous condition of land, not to its engaging in an activity that creates a hazardous condition. According to defendant, a claim that a possessor of land engaged in an activity that created a hazardous condition is governed by the reasonable forseeability standard of Fazzolari v. Portland School District No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), not by the rules related to premises liability.

We reject defendant's argument that the second paragraph of the instruction is immaterial for two reasons. First, defendant's contention that the trial should not have included a premises liability claim at all constitutes a significant shift in legal theory on appeal. The case was tried and submitted to the jury as a premises liability case without defendant's objection. Second, we are unaware of any legal basis for the distinction defendant asserts, and the cases that defendant cites do not support it. In Dodge v. Darritt Construction, Inc., 146 Or.App. 612, 934 P.2d 591 (1997), rev. den., 326 Or. 530, 971 P.2d 407 (1998), a general contractor negligently let rainwater seep into the hospital in which the plaintiff worked, and the plaintiff was injured while cleaning it up. There was no claim that the defendant was liable on a premises liability theory, so that case fails to support the distinction defendant urges. In Mounts v. Knodel, 83 Or.App. 90, 730 P.2d 594 (1986), the plaintiff was injured when the strap holding the saddle on the horse that he was riding broke. We held...