Walsh v. Spalding & Son, Inc.

• Decision Date: 07 November 2007
• Docket Number: 02CV0187.,A126542.
• Citation: 216 Or. App. 55,171 P.3d 1032
• Parties: Richard L. WALSH, Plaintiff-Respondent, v. SPALDING & SON, INCORPORATED, an Oregon corporation, Defendant-Appellant.
• Court: Oregon Court of Appeals

171 P.3d 1032

216 Or. App. 55

Richard L. WALSH, Plaintiff-Respondent, v. SPALDING & SON, INCORPORATED, an Oregon corporation, Defendant-Appellant.

02CV0187.

A126542.

Court of Appeals of Oregon.

Argued and Submitted April 12, 2007.

Decided November 7, 2007.

Joel S. DeVore, Eugene, argued the cause for appellant. With him on the briefs was Luvaas Cobb.

Dennis H. Black, Medford, argued the cause for respondent. With him on the briefs was Black, Chapman, Webber, Stevens, Petersen & Lundblade.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

Defendant, which leased property to plaintiff's employer, appeals from an adverse judgment entered after a jury found defendant liable for injuries that plaintiff suffered while working on the leased property. On appeal, defendant raises five assignments of error, challenging, inter alia, the denial of its motion for a directed verdict and the court's giving of a jury instruction that referred to plaintiff's employer's immunity from suit. As explained below, we conclude that (1) under applicable standards governing the liability of lessors of property to third persons injured on leased premises, defendant was not entitled to a directed verdict; but (2) the instruction referring to plaintiff's employer's (i.e., the lessee's) "immunity" was erroneous and prejudicial. Accordingly, we reverse and remand.¹

The operative facts for purposes of our review are as follows: Plaintiff worked as a truck driver for United Grocers. In September 1999, defendant leased property that it owned in Grants Pass to United Grocers for use as a truck turn yard. The lease between defendant and United Grocers was for one year. Under the terms of the lease, United Grocers, as lessee, was not to make any alterations or improvements on the premises unless it first obtained defendant's written consent. The parties further agreed that defendant and its agents would have the right to enter into and upon the premises for, inter alia, "the purpose of * * * making proper or necessary repairs," so long as such entry would not "unnecessarily interfere with [United Grocers'] use of the premises."

The leased premises consisted of about 45,000 square feet, with an office and a covered shed for parking truck tractors. At its southern end, the property was separated by an embankment, or "drop-off," from a lower and immediately adjacent property also owned by defendant. The vertical difference between the edge of the leased property and the base of the embankment was approximately 16 feet, and five feet down the embankment was a concrete ledge. At the time the property was leased, there were some railroad ties/beams at the edge of the property to keep material (e.g., wood chips) from falling off the embankment, but the drop-off was not fenced or otherwise guarded.²

During the period of United Grocers' tenancy, until May 3, 2000, when plaintiff was injured, United Grocers did not fence or otherwise guard the edge of the embankment; nor did United Grocers erect signs or warnings or delineate where, relative to the embankment, truck trailers should be parked. During that time, drivers employed by United Grocers routinely parked trailers near, and even right against, the edge of the embankment, with the rear doors of the trailers facing the embankment. For his part, plaintiff usually parked leaving 15 to 20 feet between the rear of the trailer and the embankment, because he was aware of the drop-off and the potential hazards that it presented.

On May 3, 2000, plaintiff was at the Grants Pass property preparing to drive a trailer to Portland. The trailer — which someone other than plaintiff had parked — was near the edge of the embankment, with between eight and ten feet separating the rear of the trailer and the drop-off. As part of the pretrip procedures required by United Grocers, plaintiff had to open the trailer and inspect its contents. To reach the rear door of the trailer, plaintiff first had to extend the folded tailgate. However, the tailgate's latching mechanism had been bent in a prior unrelated accident, and plaintiff had to use a hammer to open the latch and lower the tailgate.

Once plaintiff had checked the trailer's load and shut the door, he was unable to reengage the bent tailgate latch. After attempting unsuccessfully to hammer the latch into position, plaintiff retrieved a 15-to-18 inch long metal bar, and, using it as a lever, tried to pry the latch into place. Although plaintiff could have used his truck to pull the trailer forward, away from the ledge, at that point — or, indeed, at any time — he did not do so. The bar slipped loose on plaintiff's first attempt to bend the latch. Repositioning the bar, plaintiff then exerted more force on the latch — and, again, the bar slipped loose, knocking him off balance.

Plaintiff stumbled backwards, tripped over a beam, and fell over the drop-off, first striking the concrete ledge and then continuing down to the base of the embankment. Plaintiff suffered injuries, including a broken ankle, which required surgery and rehabilitation. Although plaintiff has been able to resume his job as a driver, it is likely that, ultimately, his injury will require that his ankle be fused, which will effectively end his career as a truck driver.

In early 2002, plaintiff filed this action in Josephine County Circuit Court. In his operative amended complaint, plaintiff alleged that his "accident and resulting damages were caused by defendant's negligence" in (1) "failing to place guardrails, fencing or other similar protective barriers" to guard against foreseeable injuries, (2)"creating the dropoff which, given its physical condition, could not be encountered with reasonable safety," and (3) "failing to take corrective measures to ensure that the unreasonably dangerous hazard presented by the dropoff was eliminated."

At trial, as pertinent here, after the close of the evidence, defendant unsuccessfully moved for a directed verdict, arguing that, under applicable standards governing a lessor's liability, the evidence was legally insufficient to support a verdict for plaintiff. Further, defendant unsuccessfully objected to the giving of the following instruction:

"United Grocers is not a party to this case because under Oregon law United Grocers is immune from liability for negligence, if any, to the plaintiff, Richard Walsh. * * *

"You may, however, consider the actions of United Grocers as part of the overall circumstances existing at the time of this accident in assessing the plaintiff's claim of negligence against Defendant, Spalding & Son, Inc., in this case.

"You are instructed that if you find the defendant, Spalding & Son, Inc., was negligent and that [its] negligence was a substantial factor in causing the accident in which Plaintiff was injured you may not compare that negligence with any negligence by United Grocers."

(Emphasis added.) The jury awarded plaintiff economic damages of $299,978.46 and noneconomic damages of $425,000, and fixed the parties' comparative fault as 75 percent (defendant) and 25 percent (plaintiff).

Defendant appeals, raising five assignments of error. For the reasons that follow, we conclude that the court did not err in denying defendant's motion for a directed verdict. However, we further conclude that the court committed reversible error in instructing the jury that United Grocers was "immune from liability for negligence." We address each of those matters in turn, beginning with the denial of the directed verdict, which, if erroneous, would result in an outright reversal for defendant.

In reviewing the denial of a motion for directed verdict, we determine whether, viewing the evidence and reasonably derived inferences in the light most favorable to the nonmoving party (in this case, plaintiff), that party adduced legally sufficient evidence to prevail. See Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159, 61 P.3d 918 (2003); Locati v. Johnson, 204 Or.App. 633, 635, 131 P.3d 779 (2006). Here, defendant contends that, in denying a directed verdict, the trial court applied an erroneously expansive standard of a commercial landlord's liability to its tenant's invitee for injuries resulting from obviously dangerous conditions on the premises that antedated the lease. In particular, defendant asserts that the court incorrectly relied on generalized notions of reasonable foreseeability rather than the more particularized standard of premises liability adopted in Jensen v. Meyers, 250 Or. 360, 441 P.2d 604 (1968), and refined in Bellikka v. Green, 306 Or. 630, 762 P.2d 997 (1988). Defendant further contends that, when tested against the controlling standard of liability, plaintiff's proof was deficient.

The trial court did not err. That is so because, regardless of the precision of the court's identification of the controlling standard — the court observed, without elaboration, that the jury should determine whether "the owner's [defendant's] actions [were] reasonable in the light of all the circumstances" — plaintiff's proof was sufficient under Jensen and Bellikka to avoid a directed verdict.

In Jensen, a young child who was visiting the home of the defendant's tenant was injured when she played with a printing press that the defendant landlord had left in the garage of the leased premises. 250 Or. at 361-62, 441 P.2d 604. The trial court granted the defendant's motion for a directed verdict, apparently based on the principle stated in section 356 of the Restatement (Second) of Torts (1965) that, subject to certain exceptions, "a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession."

Although the Supreme Court affirmed, it disavowed the proposition that "the mere transfer of a property interest to the lessee" conferred "immunity" from...