Wilk v. Georges

• Decision Date: 04 October 1973
• Citation: 514 P.2d 877,267 Or. 19
• Parties: Ellen H. WILK, Appellant, v. John GEORGES, dba Georges Garden Supplies, Respondent.
• Court: Oregon Supreme Court

Page 877

514 P.2d 877

267 Or. 19

Ellen H. WILK, Appellant, v. John GEORGES, dba Georges Garden Supplies, Respondent.

Supreme Court of Oregon.

Argued and Submitted April 3, 1973.

Decided Oct. 4, 1973.

James B. Griswold, Portland, argued the cause for appellant. With him on the briefs were Green, Richardson, Griswold & Murphy, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were James B. O'Hanlon, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN ^*, HOWELL, and BRYSON, JJ.

HOWELL, Justice.

Plaintiff filed this action for damages for injuries sustained when she slipped and fell on defendant's premises. A jury returned a verdict for the defendant, and plaintiff appeals.

The defendant operates a garden supply and nursery business in southeast Portland. On December 13, 1969, plaintiff and her husband went to defendant's nursery to purchase a live Christmas tree. Not being satisfied with the trees in front of the building, they were directed to an area in the rear where other trees were located either in the ground or in pots. That area was covered with a slatted roof. Criss-cross walkways made of 2 12 planks had been laid on the ground. Most of the planks had been covered by asphalt roofing material to prevent the boards from becoming slippery, but in some places the planks were bare where the roofing had been worn away, and in other places the asphalt had been missing since the previous summer. The boards and the roofing were both green in color.

While in the rear section plaintiff traversed a portion of the walkway that was covered with the roofing material. As she approached the tree area she was 'looking and glancing' at the trees when she slipped and fell on a bare plank. On the day of plaintiff's accident it had been raining.

Defendant testified that he knew the bare planks were 'slippery and dangerous' when wet, and for that reason he placed the asphalt material on them. Defendant also testified that he had placed a warning sign by the gate and one on each side of the building. The signs stated (verbatim):

'Please watch where you are going. This is a nursery where plants grow. There is four seasons: summer and winter, cold and hot, rain, icey spots. Flower petals always falling on the floor, leaves always on the floor.

'We are dealing with nature and we are hoping for the best. We are not responsible for anyone get hurt on the premises.

'Thank you.'

The plaintiff and her husband testified that they did not see the signs.

The plaintiff alleged that the defendant was negligent in failing to cover the walkway with a nonskid surface, in failing to keep water and mud from collecting on the walkway, and in directing plaintiff to use the walkway 'without first warning her that its surface was not treated or covered with non-skid materials.'

Plaintiff's primary assignment of error on this appeal is that the court erred in giving the following instruction:

'If a customer coming on the premises knows of a dangerous condition or if this condition is obvious, there is no duty on the part of the owner to correct or warn of the condition unless, despite the fact that the danger is known or obvious, the owner should anticipate that the dangerous condition will cause physical harm to the customer.' ¹

The plaintiff contends that the instruction was erroneous because it stated that a mere warning of a dangerous condition would satisfy the defendant's legal obligation to plaintiff. However, the defendant contends that the instruction is correct because if a prudent landowner should anticipate that an unreasonably dangerous condition will cause harm to a customer even though the danger is known or obvious, he may either (1) correct the condition, or (2) warn the customer and satisfy his duty.

Both parties cite three previous decisions of this court: Dawson v. Payless for Drugs, 248 Or. 334, 433 P.2d 1019 (1967); Pribble v. Safeway Stores, 249 Or. 184, 437 P.2d 745 (1968), and Bertrand v. Palm Springs, 257 Or. 532, 480 P.2d 424 (1971).

In Dawson the plaintiff fell on ice after leaving defendant's store on her way back to her car in the parking lot. Plaintiff knew that the ice was slippery. This court, relying upon Section 343A of the Second Restatement of the Law of Torts and comment F of that section, ² reversed a judgment of involuntary nonsuit entered by the trial court.

The decision stated that in the ordinary case an invitee cannot recover if he has knowledge of the dangerous condition of the premises. However, if the possessor should anticipate that the dangerous condition will cause harm to the invitee notwithstanding his knowledge, the owner may be liable. The test is whether the condition is unreasonable dangerous--whether the condition is such that it cannot be encountered with reasonable safety despite the invitee's knowledge. We held that the ice on the parking lot could fall in this category and that a jury could find the defendant negligent for failing to eliminate the ice from the parking lot. 'The possessor's duty is predicated upon the assumption that it is feasible for him to remove or ameliorate the unreasonable danger.' 248 Or. at 341, 433 P.2d at 1022.

In Pribble plaintiff slipped and fell in a wet area caused from rain in the entrance to defendant's store. The plaintiff had no knowledge of the water on the floor and no warning was given. We stated:

'The danger in the present case,--moisture on a portion of an asphalt tile floor,--is probably not as high on the hazard scale as the danger in Dawson v. Payless for Drugs, supra,--ice on the entire parking lot. Nevertheless, a slippery entrance way can fall into the unreasonably dangerous class. * * *' 249 Or. at 191, 437 P.2d at 749.

In the Bertrand case the plaintiff slipped and fell in water in the locker room of the defendant's health spa. Plaintiff knew that the floor had water on it and attempted to walk between the puddles. We held that knowledge by plaintiff of the condition and danger would not insulate the defendant if the defendant should anticipate the harm notwithstanding its known or obvious danger.

Under the 2 Restatement (Second) 218, Torts § 343A, comment F, if the possessor should anticipate that the dangerous condition will cause harm to the invitee despite the latter's knowledge, the possessor's duty of reasonable care May require him 'to warn the invitee, Or to take other reasonable steps to protect him * * *.' (Emphasis ours.)

Dean Prosser, in the Law of Torts, discusses situations when a warning may or may not be sufficient. He points out that in the usual case there is no obligation to protect the invitee from dangers known to the invitee because it is expected that the visitor will protect himself. Under these circumstances reasonable care will require nothing more than a warning of the danger. However, where the possessor should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge or a warning, 'something more in the way of precaution may be required.' Examples are situations where the invitee's attention may be distracted or conditions such as icy steps which cannot be negotiated with reasonable safety. 'In all such cases the jury may find that obviousness, warning or even knowledge is not enough.' Prosser, Torts (4th ed.) 394, 395, § 61.

Harper and James also discuss the subject. They state that if people encounter a condition where they would be expected to take care of themselves without further precautions by the owner, such as an ordinary flight of stairs in daylight, the condition is not unreasonably dangerous because the likelihood of harm is slight. In that situation an injured invitee is barred from recovery by lack of defendant's negligence. In other situations the fact that the condition is obvious may still render the defendant liable where knowledge does not remove the danger. It may be negligence to have an obstruction in the sidewalk or an unexpected step in a store aisle. Under these circumstances a warning may be sufficient to satisfy defendant's duty to use due care. In still other situations, the 'duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such a precaution is still unreasonably great.' Examples are an icy flight of stairs, a slippery floor, or a defective crosswalk. 2 Harper & James, The Law of Torts 1489--1495, § 27.13.

In the instant case the trial court in effect instructed the jury that if the owner should anticipate that a dangerous condition will cause harm to the customer, the owner has a duty to correct Or warn of the condition despite the fact that the condition is known or obvious. The instruction substantially followed comment F of § 343A of 2 Restatement of Torts.

The jury should have been instructed that if they 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 ³--the owner of the premises is obligated to do more than post warning signs; he must take reasonable and feasible steps to obviate the danger. 2 Harper & James, supra at 1495.

In Dawson v. Payless for Drugs, supra, and Bertrand v. Palm Springs, supra, we held that knowledge by the invitee of the ice on the parking lot or the puddles of water on the floor would not insulate the defendant from liability. The situation was one which could not have been encountered with reasonable safety despite the invitee's knowledge. A posted sign warning of the ice or the puddles of water would have accomplished nothing because the condition was plainly visible. In fact, in Dawson we expressly noted that the owner's duty is predicated upon the assumption that it was feasible for him to remove or ameliorate the unreasonable danger.

There was evidence in the instant...