Plaintiff alleged that she sustained injuries when the bus on which she was riding swerved twice and then braked abruptly, throwing her to the floor. She brought this action against defendant Tri-County Metropolitan Transportation District of Oregon, the owner and operator of the bus. The trial court granted defendant’s motion for summary judgment and subsequently entered judgment against plaintiff. On appeal, plaintiff raises three assignments of error. First, she argues that the summary judgment record contained sufficient evidence from which a reasonable juror could find that defendant was negligent. Second, she argues that the trial court erred “in granting summary judgment to defendant when the defendant produced no evidence.” Finally, she argues that the court erred in not holding defendant to the high standard of conduct required of common carriers. We affirm.
Because the trial court granted defendant’s motion for summary judgment, we state the facts in the light most favorable to plaintiff and draw all reasonable inferences in her favor. ORCP 47 C;
Jones v. General Motors Corp.,
After the driver stopped the bus, plaintiff approached him and said, “You know you almost broke my *459 back.” He replied, “Yeah.” Because plaintiff did not see what caused the driver to swerve the bus, she asked what had happened. The driver responded that he had swerved to avoid “someone [who] rode out in front of me.” Plaintiff requested a claim form, but, for reasons that the record does not reveal, the driver did not give her one. She got off the bus without obtaining any additional information and without learning the names of any witnesses.
The next day, plaintiff called defendant to report the incident. David Morgan, one of defendant’s claims adjusters, interviewed her. He told her that he would obtain the video from the bus to examine the incident and that her claim would be handled by another of defendant’s employees, Morehead. A few weeks later, Morehead sent plaintiff a claim report, which she completed and returned to defendant.
A month passed before Morehead contacted plaintiff again. At that time, he informed her that he had contacted the bus driver, who had reported that a bicycle rider had appeared in front of the bus. Plaintiff asked about the video, and Morehead told her that he had obtained it. Shortly after this conversation, however, plaintiff received a letter from defendant stating that Morehead had reviewed the video and concluded that, due apparently to a malfunction, it did not contain any images and, for that reason, had been “reformatted” for reuse.
Approximately two years after the incident, plaintiff filed this action. She then attempted to depose the bus driver. Defendant presented Ballard as the driver, but plaintiff testified that he was not the driver on the day of the incident. Defendant then presented Grandstaff as the driver; plaintiff maintains that he was not the driver either. Defendant has not yet produced a driver whom plaintiff identifies as the one operating the bus on the day of the accident.
As noted above, defendant moved for summary judgment, and the trial court granted the motion. The court’s order explains:
“Based on the evidence presented, reasonable jurors could find that the driver of the bus in which plaintiff was riding swerved left unexpectedly, then swerved back right, *460 then slammed on the brakes, all in reaction to someone ‘rolling’ into the path of the bus — whether on a bike, on roller skates, or in a wheelchair, it’s not clear. The jurors could also find that these sudden maneuvers caused plaintiff to fall and sustain the injuries of which she now complains. But the jurors could not find — not without resort to guesswork and speculation — that the driver’s reaction was unreasonable in view of the hazard he encountered.
“The problem is, no one can describe the exact nature of the hazard. Nor how suddenly it appeared. Plaintiff didn’t see what happened. And the driver doesn’t remember.
“The maneuvers themselves tell us nothing. There may have been obstacles to the left — such as oncoming cars— that required the swerve right after the initial swerve left. And there may have been obstacles ahead — such as a stopped car — that required the sudden stop after the swerve right. No one knows — at least, no one before the court knows.
“In sum, there is no evidence to support a finding that the driver reacted unreasonably in view of the hazard confronted. For all we know, his actions were heroic, under the circumstances. Accordingly, there is no evidence to support a finding that the driver was negligent. On that basis, defendant is entitled to summary judgment.”
We agree. 1
On appeal, we will affirm the trial court’s judgment if we agree that “there is no genuine issue as to any material fact and the moving party [was] entitled to a judgment as a matter of law.”
Robinson v. Lamb’s Wilsonville Thriftway,
Plaintiff first asserts that the court erred in concluding that she presented “no evidence to support a finding that the driver was negligent.” Defendant is a common carrier; therefore, it “owes its passengers the highest degree of care and skill practicable for it to exercise.”
Simpson v. The Gray Line Co.,
However, the bare fact that a bus driver who was approaching an intersection in a busy part of Portland did not anticipate a bicyclist early enough to avoid having to swerve does not mean that the driver was negligent. As the Supreme Court has stated,
“no person need anticipate negligence on the part of any other person, and a motor vehicle operator may at all times assume until he has notice to the contrary, or until by the exercise of due care on his part he should and would have known to the contrary, that other persons using the highway will exercise due care and obey the law, and to act accordingly.”
Walker v. Tenner,
Moreover, because there is no evidence about the location of the bicyclist, his or her speed, the existence of other distractions, the driver’s condition, or any other relevant facts, a jury would have no way of knowing whether any reasonable driver would have been able to react in a manner that would not have caused plaintiff to fall. Without any such evidence, a finding that the driver failed to exercise the requisite degree of care would be pure speculation, and, as the
*462
Supreme Court has stated, “[i]t is * * * fundamental that negligence cannot be predicated upon mere conjecture, guesswork, or speculation.”
Simpson v. Hillman,
Plaintiff also argues that the bus driver breached the applicable duty of care when he swerved back to the right after the initial swerve to the left. However, plaintiff stated on the claim report that “the driver swerved to the left to avoid hitting someone, then swerve [d] right to avoid hitting vehicles to the left, then slammed on the br[ake].” Given the complete lack of evidence of where other vehicles were located, a juror would have no reason to believe that the driver acted negligently in swerving back to the right to return the bus to the lane in which it had been traveling.
Plaintiff relies on
Reed v. Jackson County,
“In the usual case, such as this one, a defendant is not entitled to summary judgment on a bare showing that the plaintiff cannot prove negligence through the testimony of the particular witness or witnesses whom the defendant happens to have deposed.”
In
Carr,
the plaintiff brought a negligence action against a store, alleging that she was injured when she tripped over a steel frame in one of the aisles. She did not
*463
know how she fell, nor could she relate specific facts about the object that had caused her to trip. Based on
Reed,
however, the court held that the defendant was not entitled to summary judgment merely because the plaintiff did not know how the accident in question had happened.
Carr,
Both
Reed
and
Carr
are distinguishable from this case. Most significantly, both of those cases were decided under the former summary judgment standard, which did not allocate any burden of proof to the plaintiff as nonmovant.
See Davis,
Further, unlike the defendants in Reed and Carr, defendant here has not tried to prevail simply by saying that it does not know anything about the cause of the accident. Defendant claims and plaintiff stipulates that the bus driver swerved to avoid hitting a bicyclist. The unknown information is whether the bus driver’s reaction to the bicyclist was reasonable. Plaintiff was unable to present any facts that by themselves or by their reasonable inferences could cause a reasonable juror to find the bus driver failed to meet the applicable standard of care. Under the current rules of civil procedure, plaintiff failed to defeat defendant’s summary judgment motion.
In her second assignment of error, plaintiff argues that “the court erred in granting summary judgment to defendant when the defendant produced no evidence.” The argument under this assignment focuses on defendant’s failure to produce a person whom plaintiff could identify as the bus driver and who would presumably have offered evidence favorable to plaintiff, when defendant clearly had more power to do so than plaintiff. However, plaintiff did not argue to the trial court that defendant was in violation of any statute or rule governing discovery, and, indeed, plaintiff makes *464 no such argument on appeal. Nor does anything in the record state or imply that defendant intentionally withheld evidence. And, as discussed above, plaintiff, not defendant, had the duty of producing evidence of negligence.
Finally, plaintiff argues that the court erred in not applying the standard of care required of common carriers. Contrary to the mandate of ORAP 5.45(3), this assignment of error does not “identify precisely the legal, procedural, factual, or other ruling that is being challenged.” Our own examination of the record yields no indication that the court did not apply the common carrier standard. And because the basis of the court’s ruling on defendant’s motion was that plaintiff produced no evidence of any negligence, the precise level of defendant’s obligation — the generic obligation to avoid unreasonable risk of foreseeable harm, or a heightened obligation as a common carrier — is not relevant in any event.
Affirmed.
Notes
The court also noted, “There is some evidence of missteps in defendant’s claim-handling, which is disturbing to see in a public agency.” The court concluded, however, that these “missteps” did not bear on the question whether defendant was negligent. We agree with both aspects of this note: there is evidence of disturbing claim-handling, but it is not relevant to the issues in this case.