Yanzick v. Tawney

• Jurisdiction: Oregon
• Parties: Barbara J. YANZICK, Appellant, v. Gene Amos TAWNEY, Defendant, Plaid Pantry, an Oregon Corporation, Respondent. 18235; CA 14969.
• Citation: 44 Or.App. 59,605 P.2d 297
• Docket Number: No. A7811,A7811
• Court: Oregon Court of Appeals
• Decision Date: 14 January 1980

Page 297

605 P.2d 297

44 Or.App. 59

Barbara J. YANZICK, Appellant, v.Gene Amos TAWNEY, DefendantPlaid Pantry, an Oregon Corporation, Respondent.

No. A7811 18235; CA 14969.

Court of Appeals of Oregon.

Argued and Submitted Nov. 26, 1979.

Decided Jan. 14, 1980.

Graham Walker, Portland, argued the cause and filed the briefs for appellant.With him on the briefs was Gordon M. MacLaren, Portland.

William R. Miller, Jr., Portland, argued the cause for respondent.With him on the brief were Wayne N. Araki and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Before TANZER, P. J., and THORNTON and CAMPBELL, JJ.

CAMPBELL, Judge.

In this negligence action for personal injuries, plaintiff appeals from the trial court's order sustaining defendant Plaid Pantry's demurrer to plaintiff's amended complaint.¹We hold that the complaint states a cause of action, and reverse and remand for further proceedings.

For the purposes of this appeal we accept as true the allegations of fact in the complaint.Plaid Pantry, an Oregon corporation, operates a grocery store in Portland.Running across the entire width of the front of the store is a sidewalk, which is used by customers entering and leaving the store.The store's parking lot, which abuts the sidewalk, is marked so as to guide patrons to park their vehicles perpendicular to the sidewalk, with the front wheels resting against the curb.The curb is low enough so that when a car is parked in this fashion, its front bumper may extend over the sidewalk.On the sidewalk, Plaid Pantry operates in ice machine used for retail sales.On November 9, 1976, plaintiff, who was walking on the sidewalk prior to entering the store, was injured when Tawney, who was driving his car in the parking lot, drove forward, pinning plaintiff's legs between the ice machine and the front bumper of Tawney's car.

Plaintiff's amended complaint charged Plaid Pantry with the following specifications of negligence: allowing the ice machine to remain in position on the sidewalk when it knew or reasonably could have discovered that the machine posed a hazard to patrons using the sidewalk in that the machine was so close to the curb that the bumpers of cars could extend over the sidewalk and pin the legs of passing patrons to the machine; and (1) failing to give patrons adequate warning of the hazard; or (2) failing to construct the curb at a height sufficient to prevent car bumpers from extending over the sidewalk; or (3) failing to construct a barrier or bumper strip in front of the ice machine far enough from the machine to prevent cars from being able to pin the legs of passing patrons to the ice machine.

In order to state a cause of action in negligence, plaintiff's complaint must state facts which imply that defendant had a duty to the plaintiff.Klerk v. Tektronix, Inc., 244 Or. 10, 415 P.2d 510(1966).The existence of a duty in a particular case is a question for the court.SeeAllen v. Shiroma/Leathers, 266 Or. 567, 514 P.2d 545(1973);Dewey v. A. F. Klaveness & Co., 233 Or. 515, 524, 379 P.2d 560(1963)(O'Connell, J., specially concurring).

Defendant, as the operator of a business to which the public is invited, has the duty to provide and maintain a reasonably safe place for its patrons in the reasonable pursuit of activities within the scope of the invitation.See, e. g., Welter, Adm'x v. M & M Woodworking Co., 216 Or. 266, 338 P.2d 651(1959);Baker v. Lane County, 37 Or.App. 87, 586 P.2d 114(1978);Nicholson v. MGM Corporation, 555 P.2d 39(Alaska1976);Restatement (Second) of Torts§ 343, Comment b (1965).Defendant must not only warn its patrons of latent dangers of which it is aware, but also ascertain the condition of its premises and exercise reasonable care to protect its patrons from dangers foreseeable from the arrangement or use of the premises.E. g., Mickel v. Haines Enterprises, Inc., 240 Or. 369, 400 P.2d 518(1965);Restatement (Second) of Torts§ 343, Comments b, d (1965);Prosser, Law of Torts 392-93(4th ed. 1971).In arguing that Plaid Pantry had a duty toward plaintiff under the circumstances of this case, plaintiff relies on Restatement (Second) of Torts§ 344(1965), which states:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or (sic: and?)²

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

Comment f to this section states:

"Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."

The Oregon Supreme Court adopted § 344 and Comment f as the law of this state in Whelchel v. Strangeways, 275 Or. 297, 304, 550 P.2d 1228(1976).Uihlein v. Albertson's, Inc., 282 Or. 631, 639, 580 P.2d 1014(1978).

It is alleged in the amended complaint that "the ice machine was so close to the outer edge of said sidewalk that the protruding bumpers of many cars using said lot would extend over the curbing and contact said ice machine."From this common parking practice by Plaid Pantry's patrons, which it allegedly knew of or reasonably could have discovered, Plaid Pantry knew or had "reason to know, from past experience, ³ that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor."Restatement (Second) of Torts§ 344, Comment f (1965).The amended complaint thus states facts establishing Plaid Pantry's duty to warn plaintiff of the hazard or take other measures to protect plaintiff, the absence of which is alleged to be negligence.⁴

In order to state a cause of action in negligence, a complaint must also allege facts which establish that defendant's unreasonable conduct was a substantial factor in causing plaintiff's injury.Babler Bros. v. Pac. Intermountain, 244 Or. 459, 415 P.2d 735(1966).The amended complaint alleges that plaintiff was injured when pinned between the ice machine and the bumper of Tawney's car.It also alleges the physical layout of the premises which permitted the accident to occur.The complaint thus sufficiently alleges the causal link between Plaid Pantry's actions and plaintiff's injuries, so as to survive demurrer.

Finally, in order for there to be a valid cause of action in negligence the harm must be foreseeable.See, e. g., Christensen v. Epley, 287 Or. 539, 555-56, 601 P.2d 1216(1979)(Tongue, J., concurring);Allen v. Shiroma/Leathers, supra;Stewart v. Jefferson Plywood, 255 Or. 603, 469 P.2d 783(1970);Dewey v. A. F. Klaveness & Co., supra(O'Connell, J., specially concurring).

The role of this court in analyzing the foreseeability issue was outlined in Stewart v. Jefferson Plywood Co., supra:

"The specific question before us is, then, whether plaintiff's injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm...