Yundt v. D & D Bowl, Inc.

• Decision Date: 23 June 1971
• Citation: 486 P.2d 553,259 Or. 247
• Parties: Lucille YUNDT, Appellant, D & D BOWL, INC., an Oregon Corporation, D & BOWL, INC., an Oregon Corporation, Respondent.
• Court: Oregon Supreme Court

Page 553

486 P.2d 553

259 Or. 247

Lucille YUNDT, Appellant,

D & D BOWL, INC., an Oregon Corporation,

D & BOWL, INC., an Oregon Corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Before Department 2 Oct. 29, 1970.

Reargued Jan. 7, 1971.

Decided June 23, 1971.

P. J. Washburn, Roseburg, argued and reargued the cause and filed a brief for appellant.

Eldon F. Caley, Roseburg, argued and reargued the cause for respondent. With him on the brief were Long, Neuner, Dole & Caley, Roseburg.

BRYSON, Justice.

Plaintiff filed this action for damages for personal injuries incurred when she fell in defendant's bowling alley.

Plaintiff's complaint alleges that she was seated at a table overlooking the bowling lanes; that the floor material under the table was linoleum, with carpeting 'surrounding the linoleum at a different level' and with a metal strip, or 'carpet bar,' between the carpeting and the linoleum. The metal strip was one-half inch, or less, higher than the linoleum. Plaintiff also alleges that she was seated on a chair 'partly on the linoleum and partly on the carpet' and as she 'attempted to rise from said chair and table' she 'caught her heel on said metal strip and fell to the floor.'

Plaintiff charged the defendant with negligence 'in constructing a floor, partly linoleum and partly carpeting, where adjoined, with a metal divider protruding above the linoleum'; in placing a chair 'astride the metal divider protruding above the lineolum,' and in failing to warn plaintiff of the unsafe condition.

Plaintiff's principal assignment of error is that the court improperly sustained defendant's objections to the introduction of opinion testimony by an architect called by plaintiff as an expert witness.

The plaintiff made an offer of proof of the expert's testimony subject to cross-examination, and the court stated his reason for excluding the testimony. To properly understand the question presented and the court's ruling, it is necessary to set forth the same:

'DIRECT EXAMINATION

'Q Mr. Johnson, I don't recall exactly what you have answered and what you haven't. I am going to ask you several questions concerning your visit out to the D & D Bowl. Were you out there yesterday?

'A Yes.

'Q And did you examine the floor in the area shown on Plaintiff's Exhibit H, the closest table to you in that picture?

'A Yes.

'Q. And did you examine the vinyl flooring there?

'A Yes, sir.

'Q And the rug?

'A And found there to be a half inch difference in the height.

'Q Between the vinyl flooring and the rug?

'A And the carpet.

'Q And did you note the metal stripping there?

'A Yes, sir.

'Q On this picture here, Exhibit H, as well as on Exhibit J and on Exhibit 1 and Exhibit 3, I will ask you to particularly note the fact that each one of those tables shown in those pictures has five chairs at the table. Is that correct?

'A Yes, it does.

'Q And I particularly draw your attention to the chair at the--the single chair at the end of each table which is facing the alleys of the bowling alley. Do you note that?

'A Yes, sir.

'Q Now, taking into consideration the type of construction here, the vinyl and the rug and the metal strip with these chairs over there, in your opinion is that a safe practice, to put that chair over that area?

'A No, it is not, because when you have an activity such as sitting at a table where chairs are moved and slid around, you wouldn't have a metal edge like this in your own home around a diningroom and certainly not in a public building where you have people unfamiliar with the premises coming and moving chairs around this metal edge; when they walk up to it, they go and sit down and may be aware of the difference in color, texture of the floor coverings and be aware there is a carpet there but they would certainly not recall this at the time they sat in this fifth chair at the end of the table and had been sitting at the table for a period of time; when they would rise to go from there they would not necessarily recall that there was an unevenness in the floor and turn and be careful. The act of rising from a chair in this case, the metal edge is about where a person would place their foot when they rose from the chair; that the act of rising and turning, especially on one foot, you could very conceivably be off-balance if that foot were on that metal edge.

'Q What would be the fear that you would have if this type of use, such as is shown here, that we have been talking about were indulged in? What would you be afraid would happen?

'A Well, I would be afraid that people would slip and fall. The hazardous condition like this is asking for trouble, in my opinion.

'Q And specifically what about this construction, in your opinion, would make it more dangerous that people would slip and fall?

'A It's the unevenness of the floor. If that vinyl asbestos tile had been extended two feet further out into the carpeted area, then the movement of the chair and people with their feet in rising would have been on a level surface and much easier to do so; or the carpeting could have been extended to the wall and this, again, would have resulted in a level floor; and a third way, of course, is to put underlayment under the vinyl asbestos tile and raise that floor material up to the carpeting.

'Q Would it have been difficult to have constructed this so that the vinyl would have been on the same level as the rug?

'A No. In fact, they have a--it apparently is not relevant but there is an additional hazard going down to the stairway there at that corner where this metal occurs because people coming cut the corner and would trip on that corner. It would have been far better had that edge, line that goes along the end of the table were extended, continuous so that you would not have that condition occurring at the head of the stairs or at the chair. Then people would have a more clearly defined line of demarkation as to where this edge was occurring. The edge in the courtroom, for example, is excellent because it occurs at the separation between the public seating area and the area of the proceedings.

'Q Assume that the D & D Bowl had intended to use five chairs at these tables in this area and that it was designing the area for that purpose, would it have been a good construction practice or a proper construction practice to have constructed the floor as shown here in these exhibits and as the floor is actually constructed at the present time?

'A Definitely not because as it is now constructed, it is doubtful whether it is satisfactory with four chairs because the two chairs at the end of the table are in a very similar position that when a person rises, which would be away from the bowling end or toward the end of the table, that they would be putting their foot on this uneven surface again. And certainly, with the addition of a fifth chair, that that change in elevation of the floor should occur at least two feet to three feet past the end of the table to give chairs and persons room to move on a level surface.

'Q Are there any principles in construction practices in this area, Mr. Johnson, which do not permit or frown upon the use of uneven flooring in areas where people are sitting?

'A Again--

'Q Public areas I am talking about.

'A In public areas, a person is charged with--an architect is charged with the responsibility of designing in such a manner that you do have level surfaces and avoid these hazardous conditions such as this. We do have code requirements on stairways, for example, where you have a 3/16ths of an inch variation maximum on risers, which is a pretty strong requirement. But this is generally, the type of termination for carpeting in the courtroom is acceptable in the industry as long as it is fastened and maintained in a flat-type manner.

'q Would it, Mr. Johnson, in any way have interferred (sic) with the efficiency of the operation of the D & D Bowl, in your opinion, or in any similar enterprise if the floor in the area that we are talking about there had been level or, in other words, if this unevenness had been eliminated?

'A Certainly not, on the two bases we talked about or mentioned before, that the vinyl asbestos tile could have been extended two or three feet out from the end of the table, this would not have altered their operation; if the carpeting had been extended under the tables to arrive at a level floor, this may have probably been a more difficult service to maintain for food spillage.

'MR. SCHWAB: That is all I have of this witness, Your Honor.'

On cross-examination Mr. Johnson testified:

'Q Your testimony then is, as I understand it, that the condition of unsafety stems from the position of the carpeting as placed there pursuant to the design?

'A Yes.

'Q The construction itself, so far as workmanship and safety are concerned, construction only, is good?

'A Yes.'

The trial court, in stating the reason for his ruling, stated:

'In Naney vs. Lane, they didn't need expert testimony to say whether that stripping was dangerous or not. You and I would know it as well as the expert would know it. There is nothing inherently or hiddenly dangerous. It is something that is dangerous or not as the reasonable person looks at it. It does not mean it is error to permit the expert to give his opinion. It is within the trial judge's discretion. * * * The factual situation, in my opinion, requires no expertise. There is nothing hidden or latent about it which isn't obvious to the average person as in the case of as the example I used in the construction of a bridge. That is the reason I ruled that way I did. I don't think Nancy vs. Lane says you have to have expert testimony. As a matter of fact, it says that you didn't need expert testimony in Naney vs. Lane in so many words. There are some areas where expertise may probably invade the province of the jury had there is some area where it isn't proper. I feel like this is one where it isn't proper. With all due...