Defendant, which leased property to plaintiffs employer, appeals from an adverse judgment entered after a jury found defendant liable for injuries that plaintiff suffered while working on the leased property. On appeal, defendant raises five assignments of error, challenging, inter alia, the denial of its motion for a directed verdict and the court’s giving of a jury instruction that referred to plaintiffs employer’s immunity from suit. As explained below, we conclude that (1) under applicable standards governing the liability of lessors of property to third persons injured on leased premises, defendant was not entitled to a directed verdict; but (2) the instruction referring to plaintiffs employer’s (i.e., the lessee’s) “immunity” was erroneous and prejudicial. Accordingly, we reverse and remand. 1
The leased premises consisted of about 45,000 square feet, with an office and a covered shed for parking truck tractors. At its southern end, the property was separated by an embankment, or “drop-off,” from a lower and immediately adjacent property also owned by defendant. The vertical difference between the edge of the leased property and the base of the embankment was approximately 16 feet, and five feet down the embankment was a concrete ledge. At the time the property was leased, there were some railroad ties/beams at the edge of the property to keep material (e.g., wood chips) from falling off the embankment, but the drop-off was not fenced or otherwise guarded. 2
During the period of United Grocers’ tenancy, until May 3, 2000, when plaintiff was injured, United Grocers did not fence or otherwise guard the edge of the embankment; nor did United Grocers erect signs or warnings or delineate where, relative to the embankment, truck trailers should be parked. During that time, drivers employed by United Grocers routinely parked trailers near, and even right against, the edge of the embankment, with the rear doors of the trailers facing the embankment. For his part, plaintiff usually parked leaving 15 to 20 feet between the rear of the trailer and the embankment, because he was aware of the drop-off and the potential hazards that it presented.
On May 3, 2000, plaintiff was at the Grants Pass property preparing to drive a trailer to Portland. The trailer — which someone other than plaintiff had parked— was near the edge of the embankment, with between eight and ten feet separating the rear of the trailer and the drop-off. As part of the pretrip procedures required by United Grocers, plaintiff had to open the trailer and inspect its contents. To reach the rear door of the trailer, plaintiff first had to extend the folded tailgate. However, the tailgate’s latching mechanism had been bent in a prior unrelated accident, and plaintiff had to use a hammer to open the latch and lower the tailgate.
Once plaintiff had checked the trailer’s load and shut the door, he was unable to reengage the bent tailgate latch. After attempting unsuccessfully to hammer the latch into position, plaintiff retrieved a 15-to-18 inch long metal bar, and, using it as a lever, tried to pry the latch into place. Although plaintiff could have used his truck to pull the trailer forward, away from the ledge, at that point — or, indeed, at any time — he did not do so. The bar slipped loose on plaintiffs first attempt to bend the latch. Repositioning the bar, plaintiff then exerted more force on the latch — and, again, the bar slipped loose, knocking him off balance.
Plaintiff stumbled backwards, tripped over a beam, and fell over the drop-off, first striking the concrete ledge and then continuing down to the base of the embankment. Plaintiff suffered injuries, including a broken ankle, which required surgery and rehabilitation. Although plaintiff has been able to resume his job as a driver, it is likely that, ultimately, his injury will require that his ankle be fused, which will effectively end his career as a truck driver.
At trial, as pertinent here, after the close of the evidence, defendant unsuccessfully moved for a directed verdict, arguing that, under applicable standards governing a lessor’s liability, the evidence was legally insufficient to support a verdict for plaintiff. Further, defendant unsuccessfully objected to the giving of the following instruction:
“United Grocers is not a party to this case because under Oregon law United Grocers is immune from liability for negligence, if any, to the plaintiff, Richard Walsh. * * *
“You may, however, consider the actions of United Grocers as part of the overall circumstances existing at the time of this accident in assessing the plaintiffs claim of negligence against Defendant, Spalding & Son, Inc., in this case.
‘You are instructed that if you find the defendant, Spalding & Son, Inc., was negligent and that [its] negligence was a substantial factor in causing the accident in which Plaintiff was injured you may not compare that negligence with any negligence by United Grocers.”
(Emphasis added.) The jury awarded plaintiff economic damages of $299,978.46 and noneconomic damages of $425,000, and fixed the parties’ comparative fault as 75 percent (defendant) and 25 percent (plaintiff).
Defendant appeals, raising five assignments of error. For the reasons that follow, we conclude that the court did not err in denying defendant’s motion for a directed verdict. However, we further conclude that the court committed reversible error in instructing the jury that United Grocers was “immune from liability for negligence.” We address each of those matters in turn, beginning with the denial of the directed verdict, which, if erroneous, would result in an outright reversal for defendant.
In reviewing the denial of a motion for directed verdict, we determine whether, viewing the evidence and reasonably derived inferences in the light most favorable to the nonmoving party (in this case, plaintiff), that party adduced legally sufficient evidence to prevail.
See Woodbury v. CH2MHUI, Inc., 335
Or 154, 159,
The trial court did not err. That is so because, regardless of the precision of the court’s identification of the controlling standard — the court observed, without elaboration, that the jury should determine whether “the owner’s [defendant’s] actions [were] reasonable in the light of all the circumstances” — plaintiffs proof was sufficient under Jensen and Bellikka to avoid a directed verdict.
In
Jensen,
a young child who was visiting the home of the defendant’s tenant was injured when she played with a printing press that the defendant landlord had left in the garage of the leased premises.
Although the Supreme Court affirmed, it disavowed the proposition that “the mere transfer of a property interest to the lessee” conferred “immunity” from liability on a lessor.
Jensen,
“ ‘[I]t is no part of the general law of negligence to exonerate a defendant simply because the condition attributable to his negligence has passed beyond his control before it causes injury (if the injury was foreseeable at the time, defendant still had control).’ ”
Id. (quoting 2 Harper & James on Torts § 27.16, 1510 (1956)).
The Supreme Court proceeded to explore the circumstances in which a lessor could be subject to liability:
“The exceptions engrafted upon the lessor’s immunity from liability appear to be based principally upon the ground that the hazard created by the lessor is not likely to be remedied or immunized by the lessee and thus the lessor is made liable upon the well accepted principle that one is hable for reasonably foreseeable harms.”
Id. The court further elaborated on a variety of factors indicative of “[t]he unlikelihood of [a] lessee remedying the hazardous condition,” including, especially under a short-term lease, circumstances “where the premises are in a ruinous state or where lessor agrees to repair or negligently repairs, or where there is an undisclosed dangerous condition known to the lessor, or where lessor retains control of a part of the leasehold which lessee is entitled to use.” Id. at 363-64 n 4.
Nevertheless, the Supreme Court ultimately emphasized,
“this is not to say that the lessor should be liable in every case where a dangerous condition exists at the time of leasing the premises. As one court has expressed it, ‘* * * the nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise to safeguard persons entering them at his invitation.’ ”
Id.
at 363-64 (quoting
Webel v. Yale
University,
Bellikka
was decided shortly after
Fazzolari v. Portland School Dist. No. 1J,
In so holding, the Supreme Court addressed the proper relationship between the
“The question in the present case is not whether Fazzolari requires that this court abandon the principles set forth in the Restatement (Second) of Torts § 356. That case does not make principles of common-law negligence apply when they otherwise would not. The question is whether the principles of modern negligence law are in conflict with the traditional rules of landowner liability set forth in the Restatement and, if so, which rules are more properly applied to the present situation?”
Bellikka,
With that legal standard reiterated, the Supreme Court then focused on whether, or in what circumstances, the application of that standard was properly committed to the court, as in
Jensen,
“or whether that issue should be left to the trier of fact.”
Bellikka,
“such questions as whether the defendant unreasonably created a risk of harm to the protected interests of a reasonably foreseeable group or class of people which would include the plaintiff, whether the defendant knew or should have recognized that risk, and whether the defendant acted reasonably in light of the risk created.”
Id. Those questions, partaking of “reasonableness,” are, in turn, generally matters committed to the trier of fact:
“Under most circumstances what is reasonable behavior in a particular set of circumstances, like other uncertain general standards being applied in a particular case, will be a question to be determined by the finder of fact.”
Id. at 649 n 15.
In sum, we understand
Bellikka
to endorse two overarching principles that frame and inform our review.
First,
a commercial lessor is liable in negligence for reasonably foreseeable injuries to invitees of its lessee where those injuries arise from known or reasonably knowable conditions antedating the lease,
unless,
in the totality of the circumstances, including the nature of the potentially hazardous condition and the lessor’s opportunity to remedy that condition, the lessor “ ‘reasonably expect [ed] that the tenant would take steps to remedy the defect or otherwise to safeguard persons
entering [the
premises] at his invitation.’ ”
Id.
at 647 (quoting
Jensen,
Defendant contends that the evidence at trial substantiated compelling reasons for why it could reasonably expect that United Grocers would take necessary and appropriate steps to protect its employees from reasonably foreseeable risks from the drop-off. Defendant emphasizes not only that that condition was patent but also that the lease was commercial, not residential. The latter consideration is especially significant, defendant asserts, because United Grocers, not defendant, controlled its own operations, including what activities, if any, its employees (including plaintiff) might undertake in proximity to the drop-off. Indeed, defendant suggests, to impose some anticipatory obligation to remedy would be to require prescience as to United Grocers’ mode of operation. In that regard, defendant reasons, United Grocers not only had the unique ability to identify and implement remedial measures with respect to the drop-off, as necessitated by its operations, but also, given potential workers’ compensation and occupational safety regulatory liability, United Grocers had very significant incentive to undertake such measures.
Plaintiff counters that the ultimate determination of the reasonableness of the lessor’s expectation that the lessee will undertake repairs involves a variety of factors, including “the time and opportunity to repair defects,”
Bellikka,
Implicit in plaintiff s response is the proposition that the application of standards of liability that require “mix- and-match” considerations of myriad variables — e.g., obviousness of the condition, nature and magnitude of the risk, opportunity to repair (including as a function of the duration of occupancy), incentive to repair, potential cost of repair vis-á-vis a party’s resources, nature and degree of retained control over the property, including with respect to inspection and repair — is seldom, if ever, susceptible to summary determination. Explicit in plaintiffs response is the premise that determinations of “reasonableness” are almost invariably consigned to the finder of fact.
Defendant’s arguments are provocative. Indeed, if Jensen stood alone — if there were no Bellikka (and Fazzolari) — defendant might well prevail. The circumstances that defendant invokes as substantiating the reasonableness of its expectations here are at least as compelling as those that the Supreme Court held to be sufficient to sustain the directed verdict in Jensen. In that regard, we especially appreciate that the lease here was commercial and that plaintiff was the lessee’s employee, as opposed to some generic invitee. 5 6
But
Jensen
does not stand alone. To be sure, the Supreme Court in
Bellikka
explicitly ratified the correctness of the legal standard of lessor liability adopted in
Jensen. See Bellikka,
We must affirm the denial of the directed verdict “unless there is
no
evidence from which the jury could have found the facts necessary to support the elements of plaintiffs cause of action.”
Cole v. Ford Motor Co.,
We turn then to defendant’s assignment of error challenging the instruction that informed the jury that United Grocers was “immune from liability for negligence, if any, to the plaintiff.” We will reverse a “judgment * * * on the basis of improper jury instructions when we ‘can fairly say that the instructions probably created an erroneous impression of the law in the minds of the jurors which affected the outcome of the case.’ ”
Howard v. Waremart, Inc.,
Defendant argues that the trial court’s instructions confused the jury and distracted it from the proper inquiry. Defendant does not dispute that United Grocers was, in fact, immune by virtue of ORS 656.018(l)(a), the workers’ compensation “exclusive remedy” provision. Rather, defendant argues that telling the jury “that a non-party is immune from suit is * * * irrelevant and prejudicial,” as it suggests an improper legal standard and invites the jury to believe that defendant is the only available source for plaintiffs recovery. Specifically, defendant asserts:
“To a defendant, the court telling the jury that a non-party is immune from suit is the same thing as, to a plaintiff, a court telling a jury that a non-party settled for big bucks. * * *
* * * *
“The prejudice to [defendant] could not be greater. United Grocers was responsible for supervising Richard Walsh, providing notebooks of safety guidelines, and telling the drivers where and how to park the trailers. A co-employee parked the trailer in question only eight to ten feet from the embankment. United Grocers controlled the site. United Grocers was logically involved in the risk of harm. To tell the jury that United Grocers is immune from suit was to tell the jury that plaintiffs only remedy for his injury was to find [defendant] to blame. * * *
“This prejudice was worse to a defendant than the prejudice to a plaintiff when a jury is told of a settlement. At least a jury might worry that the settlement was insufficient. When a jury is told that United Grocers was wholly immune, the jury believes that plaintiff gets nothing if he leaves the courthouse without a verdict.”
Defendant’s position is predicated, principally, on
Holger.
Although we have not previously addressed the propriety of informing the jury of a third-party’s immunity from
In
Holger,
as pertinent here, the plaintiff, as personal representative of the decedent patient, brought a medical malpractice action against a surgeon and a hospital that had employed nurses who assisted in the surgery.
The Supreme Court agreed that the trial court had so erred.
Id.
at 413-15. The Supreme Court began by noting that, under OEC 408, evidence of a compromise is not admissible unless it has “independent relevance.”
Id.
at 414. The Supreme Court determined that the information conveyed by the trial court had no independent relevance and that, although it was possible that the jury might have made only “benign” use of that information, there was also a substantial prospect that the extraneous information conveyed in the challenged instruction “ ‘distract[ed] the jury from the appropriate line of analysis.’ ”
Id.
at 415 (quoting
Honeywell,
We agree with defendant that the reference to United Grocers’ “immunity from liability” in this case implicated — albeit in obverse fashion — the same concerns that compelled reversal in
Holger.
Here, as in
Holger,
the court in
its instruction conveyed extraneous information — information with no “independent relevance” — regarding an ostensibly potentially culpable third party. Here, as in
Holger,
that extraneous information created a substantial prospect that, as a practical matter, the jury “could have been distracted from the appropriate line of analysis.”
Finally, plaintiff, by cross-assignment of error, challenges the trial court’s refusal to submit to the jury an alternative theory of premises liability that plaintiff advanced in support of his single claim for relief. We reject that cross-assignment without discussion.
Reversed and remanded.
Notes
Our analysis and disposition obviates the need to address defendant’s other assignments of error, which pertain to matters that either may not reoccur following remand or may arise in a materially different posture.
Prior to leasing the portion of its land to United Grocers, defendant had used this area to store wood chips. Defendant would transport the wood chips from the upper storage area — where United Grocers located its truck yard — to the lower area through tubes, a process aided by the 16-foot drop-off.
See also Donaca v. Curry Co.,
See generally Eduardo v. Clatsop Community Resource,
Cf. Wilson v. P.O.E. Company,
The Supreme Court’s decision in Holger antedated the enactment, in 1995, of ORS 31.605(3) (“The jury shall not be informed of any settlement made by the claimant for damages arising out of the injury or death that is the subject of the action.”). Or Laws 1995, ch 696, § 4.
We appreciate, as a practical matter, the trial court’s desire to mitigate jurors’ curiosity about United Grocers’ absence from the case. Nevertheless, because the jury could not be informed that United Grocers had paid workers’ compensation benefits to plaintiff, see,
e.g., Bibby v. Hillstrom,
Lyons v. Walsh & Sons Trucking Co., Ltd.,
At trial, the court instructed the jury, in part, that Rector and the OSP were “immune from liability for negligence.” Neither party objected to that explicit reference to the “immunity of third persons who were not parties at trial. The trial court further instructed the jury, inter alia, that it could consider Rector’s “actions as part of the overall circumstances existing at the time of this accident in assessing the claims of negligence in this case.” Id. at 323 (internal quotation marks omitted). In doing so, the court rejected the plaintiffs’ contentions that the jury should have heen instructed that “it could not consider Rector’s conduct unless it were to find that Rector’s conduct had been the ‘sole and exclusive’ cause of the accident.” Id. The jury returned a defense verdict. That verdict was, in turn, predicated on the jury’s negative response to the following special verdict interrogatory:
“Was defendant WALSH & SONS TRUCKING CO., LTD. negligent in one or more of the ways claimed by the plaintiffs and, if so, was such negligence a cause of damage to the plaintiffs?”
Id. (internal quotation marks omitted).
On appeal, the plaintiffs assigned error to the trial court’s refusal to instruct the jury that it could consider Rector’s conduct only if that conduct was the “sole and exclusive cause” of the accident. We rejected that contention,
In sum, nothing in the Supreme Court’s opinion in Lyons purports to address the propriety of the instructions given in that case — much less to approve the reference to the “immunity from liability” of absent third parties.