383 P.3d 867
Or. Ct. App.2016Background
- Plaintiff (business invitee) tripped on a 1–2 inch raised concrete sidewalk edge in front of defendants’ storage facility office and was injured; she had previously visited without noticing the edge.
- Photographs showed the edge was flush in other areas; items (vending machines, benches, plants, awning, flags) were arranged near the office entrance.
- Plaintiff alleged defendants knew or should have known of the misalignment and failed to discover, repair, warn, or otherwise protect invitees from the hazard.
- Defendants moved for summary judgment arguing plaintiff had to prove an “unreasonably dangerous condition” and that the evidence (including plaintiff’s own testimony that she could have avoided the edge) was insufficient.
- Trial court granted summary judgment, concluding plaintiff did not present evidence of an unreasonably dangerous condition; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an invitee must prove an “unreasonably dangerous condition” to show an unreasonable risk of harm under premises-liability law | The existence of an unreasonably dangerous condition is not required; a condition that creates an unreasonable risk of harm (even if not categorically "unreasonably dangerous") can impose a duty | An unreasonable risk of harm is coterminous with an "unreasonably dangerous condition," so plaintiff must prove that heightened category | Court held a plaintiff need not always prove an "unreasonably dangerous condition;" an unreasonable risk of harm can exist without that showing |
| Whether the uneven pavement edge here raised a triable issue of fact | The location, contrast with otherwise flush pavement, and nearby distractions create a factual question whether the edge presented an unreasonable risk of harm | Andrews, Jensen and related authority show similar facts were insufficient as a matter of law | Court held the summary judgment record presented genuine issues of material fact about unreasonable risk of harm and reversed |
| Whether Dawson/Wilk limit liability to conditions that cannot be encountered with reasonable safety even if known | Plaintiff: Dawson/Wilk recognize a heightened duty in that limited class but do not confine all premises liability to that class | Defendants: Dawson/Wilk show that liability only arises for "unreasonably dangerous" conditions | Court: Dawson/Wilk create a heightened standard for that narrow class but do not define "unreasonable risk of harm" universally as an "unreasonably dangerous condition" |
| Whether Andrews and Jensen control summary judgment here | Plaintiff: Facts differ; additional evidence (distractions, unevenness localized to entrance) distinguishes this case from Andrews/Jensen | Defendants: Those cases support summary judgment dismissal | Court: Those cases do not compel affirmance; record here differs sufficiently to present triable issues |
Key Cases Cited
- Dawson v. Payless for Drugs, 248 Or 334 (Or. 1967) (recognizes heightened possessor duty for conditions that "cannot be encountered with reasonable safety")
- Wilk v. Georges, 267 Or 19 (Or. 1973) (defines "unreasonably dangerous condition" and explains heightened care beyond warning)
- Woolston v. Wells, 297 Or 548 (Or. 1984) (possessor must discover unreasonable risks and eliminate or warn)
- Andrews v. R. W. Hays Co., 166 Or App 494 (Or. App. 2000) (step-down with deceptively level appearance held insufficient as a matter of law)
- Jensen v. Kacy's Markets, Inc., 91 Or App 285 (Or. App. 1988) (instructional context describing unreasonably dangerous condition; not a universal definition of unreasonable risk)
- Moorehead v. TriMet, 273 Or App 54 (Or. App. 2015) (summarizes overarching premises-liability duty to protect invitees from unreasonable risks)
- Jones v. General Motors Corp., 325 Or 404 (Or. 1997) (summary judgment standard cited)