Hammer v. Fred Meyer Stores, Inc.
255 P.3d 598
Or. Ct. App.2011Background
- Plaintiff injured when a refrigerated end-cap shelf flipped and ejected cartons of lemonade toward her while shopping at defendant Fred Meyer.
- Shelf end-cap was four to five feet wide; plaintiff reached chest-level cartons; the shelf design allowed tipping and ejecting items.
- A supplier employee observed cartons falling and notified store personnel; no regular end-cap inspection system existed; responsibility for safety rested on store employees.
- Plaintiff sued for negligence and defective display; expert relied on safety standards and training deficiencies; defendant moved for directed verdict and the court later gave a res ipsa loquitur instruction.
- Jury found defendant negligent and awarded damages; defendant appealed arguing lack of evidence of prior problem and improper res ipsa instruction.
- Court held that the evidence supported a triable issue under res ipsa loquitur and affirmed the verdict, addressing preservation issues related to the instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res ipsa loquitur supported a directed verdict denial | Hammer argues shelf defect and defendant's maintenance caused injury; res ipsa applicable. | Lee/Fuhrer show no control/knowledge; no evidence of prior problem; res ipsa should not apply. | Evidence created triable issue; not reversible error to deny directed verdict. |
| Whether the res ipsa loquitur instruction was improperly given or preserved | Uniform instruction plus tailored addition correctly conveyed law and burden on defendant. | Instruction was improper or burden-shifting; not properly preserved on appeal. | Appellate review limited because preservation failed; unpreserved issues are not reviewable. |
Key Cases Cited
- Woolston v. Wells, 297 Or. 548 (Or. 1984) (duty of land occupier to invitee and foreseeability of risk)
- McKee Electric Co. v. Carson Oil Co., 301 Or. 339 (Or. 1986) (res ipsa loquitur as circumstantial evidence for negligence and causation)
- Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or.App. 637 (Or. App. 1999) (elements of res ipsa loquitur and inference standard in Oregon)
- Kaufman v. Fisher, 230 Or. 626 (Or. 1962) (test for third element of res ipsa loquitur; probabilities basis for jury submission)
- Lee v. Meier & Frank Co., 166 Or. 600 (Or. 1941) (premises liability and non-liability absent actual or constructive notice for foreign object)
- Fuhrer v. Gearhart By The Sea, Inc., 306 Or. 434 (Or. 1988) (duty to warn; innkeeper/restatement analysis in failure to warn cases)
- Rex v. Albertson's, Inc., 102 Or. App. 178 (Or. App. 1990) (Lee described as foreign-substance floor case; general premises liability standard)
- Gow v. Multnomah Hotel, Inc., 191 Or. 45 (Or. 1950) (exclusive control over instrumentality and liability in breakage cases)