348 P.3d 328
Or. Ct. App.2015Background
- Plaintiff tripped on a lightweight, unsecured exterior floor mat at UC Market and sustained injuries; surveillance video captured the mat folding over during windy conditions while she was inside the store.
- Plaintiff sued for negligence, alleging defendant negligently selected, placed, and failed to secure the mat.
- Defendant moved for summary judgment, arguing plaintiff could not show defendant knew or should have known the mat would fold over and that the condition was not unreasonably dangerous as a matter of law.
- Plaintiff submitted a surveillance video, wind records, and an ORCP 47 E attorney affidavit stating an unnamed expert was available to testify; at hearing plaintiff explained her theory required expert proof about mat selection/placement given local wind.
- Trial court granted summary judgment, finding the ORCP 47 E affidavit insufficient and following precedent requiring expert evidence only in limited circumstances.
- On appeal the court reversed and remanded, holding plaintiff’s chosen theory (negligently creating the hazard by selecting/locating/failing to secure the mat) was cognizable and susceptible to expert proof, so the ORCP 47 E affidavit precluded summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was required to show defendant knew or should have known the mat had folded over | Lagesen argued negligence was in creating the hazard (choice, placement, failure to secure), not failing to discover the folded mat | UC Market argued liability requires proof defendant knew or should have known of the hazardous folded mat | Court held plaintiff's theory did not require proof defendant knew of the folded mat; liability can rest on negligently creating the condition |
| Whether ORCP 47 E affidavit sufficed to defeat summary judgment | Plaintiff argued affidavit (unnamed expert) plus facts could show industry standards and that expert testimony was needed on mat selection/placement given wind | Defendant argued expert testimony was unnecessary and affidavit could not defeat summary judgment | Court held ORCP 47 E affidavit sufficient because plaintiff’s theory was susceptible to expert proof and affidavit was specific enough about the expert’s role |
| Whether a defendant’s selection/placement of a mat can be a cognizable premises-liability theory | Plaintiff asserted Oregon law recognizes liability for conditions created by possessor’s activities (not limited to "foreign substances") | Defendant suggested such theory inapplicable to floor mats and that prior cases limit to foreign substances | Court held Oregon law permits liability for conditions created by a possessor’s activities (applying principles from Vandeveere-Pratt, Hagler) and floor-mat theory is viable |
| Whether summary judgment was appropriate on the record presented | Defendant maintained undisputed facts showed no deviation from standard of care and no foreseeability | Plaintiff maintained factual record (video, wind evidence, affidavit) created triable issue about reasonable care in selecting/securing mat | Court reversed summary judgment, finding a reasonable factfinder could infer mat was lightweight, unsecured, placed outside in windy area and that expert testimony could establish negligence |
Key Cases Cited
- Deberry v. Summers, 255 Or. App. 152 (discussing limits of ORCP 47 E affidavits)
- Hagler v. Coastal Farm Holdings, Inc., 354 Or. 132 (premises owner duty to make property reasonably safe)
- Two Two v. Fujitec America, Inc., 355 Or. 319 (ORCP 47 E and necessity of expert proof for causation)
- Panpat v. Owens-Brockway Glass Container, 188 Or. App. 384 (assume expert may testify on issues raised by summary judgment motion)
- Whalen v. American Medical Response Northwest, 256 Or. App. 278 (ORCP 47 E affidavit sufficient where expert testimony uniquely necessary on facts)
- Moore v. Kaiser Permanente, 91 Or. App. 262 (purpose and scope of ORCP 47 E)
- Vandeveere-Pratt v. Portland Habilitation Center, 242 Or. App. 554 (liability where possessor’s activity created hazardous condition)
- Bagley v. Mt. Bachelor, Inc., 356 Or. 543 (policy rationale for imposing premises-liability responsibility)
- Piskorski v. Ron Tonkin Toyota, Inc., 179 Or. App. 713 (limits of ORCP 47 E where proof requires personal-knowledge facts)