Woolston v. Wells, 81-4-428
| Decision Date | 24 June 1983 |
| Docket Number | No. 81-4-428,81-4-428 |
| Citation | 63 Or.App. 7,663 P.2d 408 |
| Parties | Ronald W. WOOLSTON, Appellant, v. Robert G. WELLS and Betty Wells, Respondents. ; CA A24025. |
| Court | Oregon Court of Appeals |
Douglas E. Hojem, Pendleton, argued the cause for appellant. With him on the briefs was Corey, Byler & Rew, Pendleton.
W. Eugene Hallman, Pendleton, argued the cause for respondents. With him on the brief were Stuart I. Teicher, and Mautz, Hallman & Teicher, Pendleton.
Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.
Plaintiff in this personal injury action appeals a judgment in favor of defendants. Plaintiff, a television repairman, was injured when he fell on a wooden stairway while delivering a television set to a tenant in defendant landlords' building. The stairway was a common area utilized by the landlord and the tenant. The fall occurred when a step broke and the handrail collapsed when plaintiff fell against it. There was evidence that a portion of the stair was rotten, that the handrail was not securely fastened and that plaintiff had been up and down the stairway a number of times prior to the fall. Plaintiff concedes that a jury could have concluded that he knew or should have known of the dangerous condition of the stairway. The evidence would also support a conclusion that the stairway was in an unreasonably dangerous condition and that the defendants were aware or should have been aware of that condition.
Plaintiff's assignments of error all relate to jury instructions concerning defendants' potential liability for the condition of the stairway. The assignments of error relate to the same general issue and will not be discussed separately.
Plaintiff objected to the following instructions:
Plaintiff contends that the court erred in refusing to give the following requested instruction:
"The owner of an apartment house who retains control over a part of the premises is subject to liability to his tenants and others upon the premises with the consent of the tenants for injuries caused to them by a dangerous condition upon that part of the premises retained in the owner's control, if the owner, by the exercise of reasonable care, could have discovered the dangerous condition and the unreasonable risk involved there and could have made the condition safe."
Plaintiff argues that the instructions given, which are almost identical to Restatement (Second) of Torts §§ 343 and 343A (1965), describing the duty of possessors of land to their invitees, are not appropriate in defining the special duty of a landlord to his tenants and their invitees with respect to areas of the premises over which the landlord retains control ("common areas"). Plaintiff contends that his requested instruction taken from § 360 of the Restatement more appropriately describes the duty of these particular defendants as landlords who maintain control of the common stairway. Plaintiff's principal concern, however, appears to be that the instructions given could completely bar his recovery rather than allow only a comparison of the fault of the parties. He argues that under the instructions given he could be denied recovery if the jury found that the dangerous condition of the stairway was obvious or known to him. That approach, he contends, is inconsistent with the comparative fault construct of ORS 18.470. 1 We agree and reverse.
The responsibility of an occupier of land to the occupier's invitees to maintain the premises in a safe condition is not materially different from that of a landlord to a tenant's invitees. The instructions requested by plaintiff and the first part of the instructions given by the court adequately recite the basic duty. The vice of the court's instructions is in the latter part:
"Now, a possessor of land is not liable to an invitee for physical harm caused to him by any condition on the land whose danger is known or obvious to the invitee, unless the possessor should anticipate the harm despite such knowledge or obviousness."
The first problem with the instruction is that it phrases the defendants' duty in terms of what was obvious or known to the invitee. A possessor of land may have a duty to keep the premises safe apart from the conduct of a particular invitee.
In Nylander v. State of Oregon, 292 Or. 254, 637 P.2d 1286 (1981), the court addressed an analogous instruction. The plaintiff's decedent was killed in an automobile collision on an icy bridge. One specification of negligence was that the state had failed to post appropriate warnings of the icy condition of the bridge. The challenged instruction stated:
" 'In that connection, members of the jury, I instruct you that if you find that the decedent either knew or reasonably should have known of the nature and extent of the danger from the icy condition of the bridge at the time and place of the accident, then the State was under no duty to post warning signs of ice on the bridge and failure to post would not be negligence.' " 292 Or. at 257, 637 P.2d 1286.
The court held that the instruction was erroneous because, inter alia, it phrased the defendant's duty in terms of a particular plaintiff's personal awareness of the extent of the danger at the exact time and place of the accident. It said that the state's duty to warn of the dangerous conditions must be considered with respect to the risk that they pose generally to the foreseeable class of motorists that would use the road in issue. The court stated:
" * * * A duty to warn presupposes some relevant person or persons, known or unknown, to be warned, and the conditions that give rise to the duty include the foreseeable characteristics of those persons. * * * " 292 Or. at 259, 637 P.2d 1286.
It is foreseeable, the court found, that users of the highway will include a cross-section of the kinds of drivers licensed to use the public roads, skilled and less skilled.
The court also held that the instruction impermissibly stated defenses of contributory negligence and assumption of risk, contrary to the dictates of the comparative fault statute. ORS 18.470. Whether an individual motorist approaching the icy bridge acted reasonably bears on the partial or entire loss of recovery by reason of comparative fault, but that issue is not identical to whether the defendant had a duty to warn in the first place.
The rationale of Nylander is appropriate in this case. The challenged instructions told the jury that the defendants would have no duty to make the premises...
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