259 P.3d 9
Or. Ct. App.2011Background
- Plaintiff Teresa Vandeeveere-Pratt sues Portland Habilitation Center, Inc. for slip and fall at Portland International Airport.
- Hurtell, defendant’s employee, mopped a terrazzo area in Concourse C and placed warning markers.
- Plaintiff and her assistant, arriving from a plane, walked the terrazzo area without seeing Hurtell or the markers and fell.
- The terrazzo was very wet; standing water remained after the fall, and expert testimony tied wet terrazzo to high slip risk.
- Plaintiff requested Uniform Civil Jury Instruction 46.09 (two-paragraph version) describing duties to warn and to eliminate hazards; the trial court gave only the first paragraph.
- The court instructed on damages and lookout duties; the trial court refused the second paragraph of 46.09 and gave a separate lookout instruction later contested by plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second paragraph of UCI 46.09 should have been given | Second paragraph clarifies that a warning is insufficient for unreasonably dangerous conditions. | Second paragraph is immaterial to this case. | Erroneous to omit; second paragraph should have been given. |
| Validity of the lookout instruction | Lookout instruction improperly shifted focus to plaintiff’s conduct. | Bartlett approved similar instruction; harmless if any. | Lookout instruction erroneous; it could mislead regarding liability and relief. |
| Premises liability vs. activity on land distinction | Activity on land (mopping) creates duty; Wilk controls. | Premises or activity theory not clearly distinguished; reasonable foreseeability governs. | Court endorses treating the activity as creating a condition with corresponding duties; Wilk analysis applied. |
Key Cases Cited
- Wilk v. Georges, 267 Or. 19, 514 P.2d 877 (Or. Supreme 1973) (owner must do more than warn when condition unreasonably dangerous)
- Dawson v. Payless for Drugs, 248 Or. 334, 433 P.2d 1019 (Or. Supreme 1967) (premises liability duties tied to dangerous conditions)
- Blair v. Mt. Hood Meadows Development Corp., 291 Or. 293, 630 P.2d 827 (Or. Supreme 1981) (abolition of assumption of risk affects sports and negligence claims)
- Nylander v. State of Oregon, 292 Or. 254, 637 P.2d 1286 (Or. Supreme 1981) (duty to warn is not driver knowledge-based; comparative fault framework)
- Mounts v. Knodel, 83 Or. App. 90, 730 P.2d 594 (Or. App. 1986) (instruction focusing on plaintiff risk improper; need context with comparative fault)
- Bartlett v. MacRae, 54 Or. App. 516, 635 P.2d 666 (Or. App. 1981) (instruction approving similar lookout concept; later viewed in context of Blair/Nylander)
- Dodge v. Darritt Construction, Inc., 146 Or.App. 612, 934 P.2d 591 (Or. App. 1997) (premises/activity theory considerations in construction context)
- Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (Or. Supreme 1981) (occupier duties for conditions and activities on premises)
- Bryant v. Sherm's Thunderbird Mkt., 268 Or. 591, 522 P.2d 1383 (Or. Supreme 1974) (conduct of vendor/possessor liable when acting on land creates harm)