Towe v. SACAGAWEA, INC.
264 P.3d 184
Or. Ct. App.2011Background
- Plaintiff- appellant injured after hitting a cable across a private access road on Mountain View property.
- Cable installed circa 2004 to deter theft; sign at road entrance stated “Private Road No Trespassing.”
- Re/Max posted a directional sign at the Indian Creek Road intersection and on the Kinyon property; sign remained after listing ended.
- Plaintiff knew road was private yet proceeded up the access road with Jerid; Jerid saw the cable before collision.
- Trial court granted summary judgment holding plaintiff 100% at fault; appellate review affirming alternative grounds.
- Court affirmatively resolved Mountain View’s trespasser/standard-of-care issue and Re/Max causation/foreseeability, with dissent addressing factual inferences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was a trespasser as a matter of law | Towe argues factual questions on trespass status. | Mountain View contends plaintiff was a trespasser with no duty beyond not acting willfully. | Yes, plaintiff was a trespasser; no duty beyond willful/wanton conduct. |
| Whether Mountain View's conduct met the standard of care for trespassers | Disputed whether proper care was owed to trespassers. | Mountain View argues no duty beyond willful/wanton conduct. | No genuine issue; Mountain View entitled to summary judgment on trespasser standard. |
| Whether Re/Max's conduct caused plaintiff's injuries | Re/Max’s sign and failure to warn contributed to the risk. | Re/Max contends no causation under either but-for or substantial-factor tests. | Re/Max not liable as a matter of law; causation not shown under the record. |
| Whether the foreseeability of the risk and the reasonableness of conduct support liability | Foreseeability and warning duties create triable issues. | Reasonableness precludes liability as a matter of law in many aspects. | Foreseeability and reasonableness create triable issues; court declined to decide conclusively. |
| Whether comparative fault is appropriate for summary judgment | Fault allocation should be for jury; plaintiff disputes 50%+ fault. | Fault allocation could be decided as a matter of law. | Jury should decide comparative fault, not disposition by summary judgment. |
Key Cases Cited
- Solberg v. Johnson, 306 Or. 484 (Or. 1988) (elements of negligence; foreseeability and duty)
- Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1 (Or. 1987) (duty and liability under broad, imprecise standards; factfinder role)
- Wolfe v. Union Pacific R. Co., 230 Or. 119 (Or. 1962) (tacit invitation concept for private roads)
- Denton v. L.W. Vail Co., 23 Or. App. 28 (Or. App. 1975) (distinguishing invitee/licensee/trespasser on private road)
- Joshi v. Providence Health System, 342 Or. 152 (Or. 2006) (causation tests: but-for vs substantial factor)
- Lasley v. Combined Transport, Inc., 351 Or. 1 (Or. 2011) (foreseeability; substantial factor analysis; intervening harm)