TIJERINA, Respondent, v. CORNELIUS CHRISTIAN CHURCH, Appellant.
Supreme Court of Oregon
Argued July 7, affirmed September 5, 1975
539 P2d 634
Noreen K. Saltveit, Portland, argued the cause for respondent. With her on the brief was John C. Barrett, Portland.
O‘CONNELL, C. J.
This is аn action to recover damages resulting from personal injuries suffered by plaintiff on defendant‘s premises. Defendant appeals from a judgment entered on a jury‘s verdict in plaintiff‘s favor.
Plaintiff was injured on June 25, 1972, while participating in a non-competitive softbаll game conducted by defendant church in connection with its Sunday school program. Plaintiff, who had never before played softball, had run to first base on his second time at bat and was running toward second base when he fell, fracturing his left tibia and fibula. Plaintiff testified that he hаd stepped in a hole. Two witnesses testified that near the scene of plaintiff‘s fall there were potholes which were hidden by dry weeds or loose
As a result of his injury, plaintiff was required to wear a cast for several months and was unable to work for eight months. The injury had caused plaintiff‘s left leg to be shorter than his right, requiring him to wear a 1/2-inch pad across the sole of his shoe and impairing his ability to run or walk on uneven ground. He now suffers progressive traumatic arthritis.
Defendant is a religious organization located within the boundaries of the city of Cоrnelius, Oregon. The softball field on which plaintiff was injured occupies the west end of a 3 1/2-acre parcel, the east end of which is occupied by defendant‘s church building. Defendant obtained the property in 1969 and constructed a baseball backstop in 1971. Prior to defendant‘s use, the land was planted to grain. Adjacent land is still used for agricultural purposes. Defendant‘s property produces a substantial growth of volunteer grain and various weeds which defendant is obligated to mow to comply with fire regulations. In 1974, the field was mowed by a third person who was given the clippings for his efforts.
Defendant held the field open to the general public without restriction. The open portions of the property, including the softball field, often were traversed by horse and motorcycle riders, рroducing ruts and holes in the field some of which were obscured by the overgrowth of vegetation. The mowing of the field tended to cut the weeds off more or less evenly, as a result of which the surface formed by the stubble was smoother than the ground itself.
On June 11, 1972 (two weeks before plaintiff‘s
At about the same time defendant, through a church bulletin, invited its members and their families to attend a picnic and softball game on the field on June 25, 1972. The bulletin did not refer to the dangerous condition of the field. A week before the picnic and game a group of church members used dirt taken from around the church building to fill some of the holes on the diamond.
On the day of his fall, plaintiff attended church with his family. They had brought food to contribute to the potluck picnic. Plaintiff, who had never before played softball, was invited to do so by a church trustee. After some initial hesitation, he accompanied the trustee onto the field. A short time lаter the fall which caused his injury occurred.
The case was submitted to the jury on a special verdict form. The jury found that plaintiff had not assumed the risk of his injuries and was not negligent, that defendant was negligent and that defendant‘s
Defendant raises several grounds for reversal, the first of which is the assertion that the trial court erred in refusing to hold that defendant‘s softball diamond was agricultural land, excluding recovery under
Nonetheless, the record is sufficient for us to determine that defendant‘s land does not come within the limitations of duty established by
Defendant contends that its land is agricultural land because it produces vegetation normally grown for agricultural рurposes and which is harvested in the sense that after the growth is cut it is removed and put to use and, furthermore, because the land is suitable for commercial farming.
The legislative history of
Defendant‘s land is not used for commercial farming. The grain which grows оn it is volunteer and intermixed with weeds. This “crop” has been cut to comply with fire regulations but was not “harvested” until 1974, after the initiation of this lawsuit and even then only in the sense that the person who cut it was allowed to take it away in return for his labors. The fact that the land could be farmed does not distin-
Defendant also makes numerous allegations of error relating to the submission of the question of plaintiff‘s status (as invitee or licensee) on defendant‘s land. We need not determine whether the trial court erred in this regard, however, because there was no prejudice to defendant‘s position. There can be no questiоn that defendant had full knowledge of the dangerous condition of the field at least two weeks before plaintiff‘s fall, when its own deacons explained the condition of the field, the potential for injury, and the appropriate corrective measurеs. When the possessor of land has knowledge of a risk unknown to the plaintiff which the condition of the land creates, he is under a duty to warn which runs equally to an invitee or licensee.4
Defendant also assigns as error the admission of the testimony of Mr. Young, alluded to above, to the effect that the field was in a condition rendering it unsafe for the purpose of engaging in a softball game. In this connection, the witness was permitted to testify over objection as to his opinion of the relative safety of the field in question as cоmpared with a field properly prepared for organized softball. He was permitted to testify as to the measures which would have to be taken by defendant to put the field in a safe and useable condition. In qualifying Mr. Young to testify in this respect, it was brought out that he had several years of experience in preparing Little League baseball fields.
The test for the admissibility of expert testimony is whether the jury can receive appreciable help from it.5 The proper preparation and maintenance of softball and baseball diamonds must take into account thе manner in which the players might use the field, the dangers to which they are exposed, and the measures necessary to avoid injury in the course of play. Although many jurors may know of these factors, many may not. Those who do not could receive appreciable help in assessing the minimum standard of maintenance for softball playing fields. Therefore, we are of the opinion that the expert testimony in this case to which defendant objects was admissible.
Defendant‘s final contention is that the court erred in allowing thе jury to consider plaintiff‘s claim for damages for lost overtime wages. Damages may be recovered for lost overtime if there is evidence that plaintiff previously earned a certain amount during a given period of time from the same employer fоr doing the same work under the same conditions. McVaigh v. Sandberg, 266 Or 409, 513 P2d 801 (1973). In addition to his own testimony that he had been able to accept less overtime after his return to work, plaintiff introduced his payroll records from the first of February 1971, when he commenced his present employment, through December 1973. The records dis-
Defendant asserts in support of its contention that “there was a sharр conflict in the evidence of the plaintiff as to whether plaintiff had declined to work overtime.” Conflicts in the evidence are within the province of the jury. The jury has resolved the conflict of evidence on this issue in plaintiff‘s favor. The verdict is supported by substantial evidence and there is no prejudicial error.
Affirmed.
HOWELL, J., specially concurring.
While I have serious doubts that the average juror needs an expert witness to tell him the difference between a backyard pasture and an improved baseball field, I do not believe that such evidenсe was of any particular significance in this case. However, I do not believe that the test of admissibility of such evidence is whether or not expert evidence could be of help to a jury. If the expert opinion evidence is related to some technical field, it is admissible. If the jury is equally well qualified to find the truth or the subject is a matter of common knowledge, expert opinion evidence is not admissible. In the gray area in between we have held that the admissibility of such evidence is within the discretion of the trial judge. Sеe Yundt v. D & D Bowl, Inc., 259 Or 247, 486 P2d 553 (1971); Cooney v. McGee, 268 Or 521, 521 P2d 1051 (1974).
Notes
“Except as otherwise provided in
“(1) An owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for аny such purpose.
“(2) An owner of land who either directly or indirectly invites or permits any person to use his land for any recreational purpose without charge does not thereby:
“(a) Extend any assurance that the land is safe for any purpose;
“(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
“(c) Assume responsibility for or incur liability for any injury, death or loss to any person or property caused by an act or omission of that person.”
“(2) ‘Land’ means agricultural land, range land, forest land, and lands adjacent or contiguous to the ocean shore as defined by