WOOLSTON, Rеspondent on Review, v. WELLS et al, Petitioners on Review.
No. 81-4-428; CA A24025; SC 29695
Supreme Court of Oregon
Argued and submitted September 7, 1983, affirmed August 14, 1984
297 Or. 548 | 687 P.2d 144
LENT, J.
Douglas E. Hojem, Corey, Byler & Rew, Pendleton, argued the cause and filed briefs for respondent on review.
LENT, J.
Peterson, C. J., concurred and filed opinion.
The issue is whether a landlord‘s possible liability to a tenant‘s invitee injured by a condition on the premises retained in the landlord‘s control is properly described in the language of 2 Restatement (Second) of Torts, §§ 343 and 343A(1) (hereinafter §§ 343 and 343A(1)) since the legislative adoption of comparative fault and the аbolition of implied assumption of risk. We hold that those sections of the Restatement are no longer proper statements of the law of this state in such a case and approve the analysis of the Court of Appeals, Woolston v. Wells, 63 Or App 7, 663 P2d 408 (1983).
Plaintiff seeks damages for physical harm he suffered when he fell while ascending stairs to deliver a television set to defendants’ tenant. The stairs were a part of the defendants’ premises not leased to any particular tenant; rather, the stairs were a part of the premises retained in the defendants’ control. Plaintiff alleged that the fall was due to a defective condition of the stairs resulting from the defendants’ negligence.1 Defendants denied that they were negligent and alleged affirmatively that plaintiff‘s injuries were the result of his own negligence.2
Plaintiff requested that the jury be instructed in terms of 2 Restatement (Second) of Torts, § 360, which describes a landlord‘s liability for physical harm caused by a dangerous condition on that part of the land retained under the landlord‘s control.3 That section does not predicate the landlord‘s liability on the entrant‘s knowledge, or want thereof, оf the dangerous condition. Indeed, the comments to the section make it abundantly clear that the entrant‘s knowledge of the dangerous condition of the premises is pertinent only to whether the entrant is in contributory fault. The trial court refused to give plaintiff‘s requested instruction. An exception was thereby imported,
Defendants requested instructions in terms of §§ 343 and 343A(1), and they were given:
| § 343 | Instructions |
| “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he | “A possessor of land is subject to liability for physical harm caused to аn invitee by a condition on the land if he: “First, knows or by the “Second, should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and “Third, fails to exercise reasonable care to protect them against the danger.” |
| “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and “(c) fails to exercise reasonable care to protect them against the danger.” |
| § 343A(1) | Instructions |
| “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” | “Now, a possessor of land is not liable to an invitee for physical harm caused to him by any condition on the land whose danger is known or obvious to the invitee, unless the possessor should anticipate the harm despite such knowledge or obviousness.” |
Plaintiff duly excepted to instructing in terms of §§ 343 and 343A(1) rather than § 360.
The first question on the form of verdict submitted to the jury required the jury to answer whether defendants were negligent in one or more respects claimed by plaintiff which caused damage to plaintiff. The jury answered, “No,” and under the court‘s instructions that constituted a verdict for defendants. From a judgment on that verdict, plаintiff appealed, assigning as error the giving of the charge above quoted and the failure to give his requested instruction set forth in footnote 3, supra.
The Court of Appeals held that the instructions given at defendants’ request were inconsistent with “the comparative fault construct of
Dеfendants argue that §§ 343 and 343A(1) have been “adopted” by this court as a part of the common law of this state. Among other cases, defendants cite Dawson v. Payless For Drugs, 248 Or 334, 433 P2d 1019 (1967). Based upon Dawson and the cases cited therein, we believe it is fair to say that defendants’ argument, in this respect, is accurate. At any rate, we shall assume, for the purpose of this opinion, that those sections were a fair statement of the common law rules applied by this court to actions brought by invitees against occupiers of real property.
Those sections speak not to “duty” or “negligence“; thеy speak to “liability.” At the time Dawson and the cases cited therein were decided, contributory negligence and implied assumption of risk were complete bars to liability on the part of a possessor of land sued by an invitee on a cause in common law negligence. That being the case, it made good sense to describe occupier liability in terms which took into consideration the invitee‘s negligence or voluntary assumption of risk, which is what §§ 343 and 343A(1) do.
Since the time of the decision in Dawson, the legislature has moved to alter the law as it applies to cases of this kind. In 1971 the legislature еnacted a “comparative negligence” system for the express purpose of superseding the common law rule that a plaintiff‘s contributory negligence would bar his recovery in a negligence action. In 1975 the legislature amended the statute,
“Contributory negligence shall not bar recovery by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or pеrsons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the
person recovering. This section is not intended to create or abolish any defense.”
Also in 1975 the legislature enacted
Prior to the trial of this case in February, 1982, we had spoken to the effect of these enactments on jury instructions in tort cases. In Nylander v. State of Oregon, 292 Or 254, 637 P2d 1286 (1981), the issue was whether the state had a duty to warn drivers of icy conditions on a highway bridge. The trial court instructed that the state had no duty if “the decedent either knew or reasonably should have known” of the danger. We concluded:
“* * * insofar as [the instruction] asked the jury to consider what [the decedent] actually knew when she drove onto the bridge, it could well be understood to state a defense of implied assumption of the risk that was abolished by
ORS 18.475 . That defense cannot be revived by being restated as an absence of duty toward plaintiff, as in this instruction. Thompson v. Weaver, 277 Or 299, 560 P2d 620 (1977). Insofar as the instruction asked the jury to decide what she ‘reasonably’ should have known when she did so, it could be understood tо state a defense of contributory negligence. But any contributory negligence on her part would be relevant only as ‘comparative fault’ underORS 18.470 * * *”
The final paragraph of the above quoted instructions given in this case is based on § 343A(1). That § 343A(1) describes liability of the possessor in terms encompassing the invitee‘s negligence or assumption of risk appears from the comment to the section:
“b. The word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the сondition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. ‘Obvious’ means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.
“* * * * *”
“e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditiоns, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. * * *”4
We have previously drawn attention to our belief that § 343A introduces the concept of assumption of risk into the liability calculus:
“That 343 and 343A embody the cоncept * * * of assumption of risk as a duty-limiting factor is apparent from comment e to 343A. For judicial recognition of this point, see, e.g., Brown v. Ivarans Rederi, A/S, 545 F2d 854, 863 n. 10 (3d Cir 1976).”
Shepler v. Weyerhaeuser Company, 279 Or 477, 495-96, 569 P2d 1040 (1977).5
We now turn to an examination of the balance of the quoted instruction, in particular to the paragraph starting with the word “Second,” which is based on § 343(b).
Because of
A further contention of defendants deserves answer. They cite Katter v. Jack‘s Datsun Sales, Inc., 279 Or 161, 566 P2d 509 (1977), as holding § 343 to be the law even after the enactment of
Defеndants contend that instruction in the terms of §§ 343 and 343A is mandated by decision in Nylander v. State of Oregon, supra, but that was not a case of landowner liability. We there stated specifically that the case need not be analyzed in terms of the defendant‘s property interest in the bridge or road on which the harm occurred. 292 Or at 258, fn. 2. Our present reading of what we said and held in Nylander is that the decision points to exactly the result we reach today on the issue posed at the outset of this opinion concerning § 343A.
Where the issues of fact are framed by allegations of a defendant‘s negligence, defendant‘s denial thereof and defendant‘s affirmаtive defense of negligence on the part of the plaintiff, the instructions should be framed so as to present the issues in terms of the negligence of each party rather than in terms of liability. Each party is held to the same standard of care with respect to common law negligence. Negligence is conduct falling below the standard established for the protection of others, or oneself, against unreasonable risk of harm. The standard of care is measured by what a reasonable person of ordinary prudence would, or would not, do in thе same or similar circumstances. Shepler v. Weyerhaeuser Company, 279 Or 477, 491, fn. 15, 569 P2d 1040 (1977).
In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee‘s visit. The
The invitee is required to exercise that same standard of care in avoiding harm from a condition of the premises of which he knows, or, in the exercise of that standard of care, of which he should know.
Instructions to the jury should be framed in terms of that standard of care. The jury will thereby be enabled to determine whether any given party is at fault and if both are at fault to compare that fault as the statute commands. In determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party.
In this case, one of the circumstances of possession is that the possessor is a landlord. With what we have just said it appears profitable to compare the rule expressed in 2 Restatement (Second) of Property, § 17.3:
“A landlord who leases a part of his property and retains in his own control any other part the tenant is entitled to use as appurtenant to the part leased to him, is subject to liability to his tenant and others lawfully upon the leased property with the consent of the tenant or a subtenant for рhysical harm caused by a dangerous condition upon that part of the leased property retained in the landlord‘s control, if the landlord by the exercise of reasonable care could have:
“(1) discovered the condition and the unreasonable risk involved therein; and
“(2) made the condition safe.”
That text is in terms of a landlord being “subject to liability,” a term defined in 1 Restatement (Second) of Torts, § 5. That term denotes that fact that the actor‘s described conduct is such as to make him liable for another‘s injury if the conduct is a legal cause of the injury and the actor has nо defense applicable to the particular claim. § 17.3, like 2 Restatement
We agree with the Court of Appeals that the trial court erred and that plaintiff is entitled to a new trial.9
The decision of the Court of Appeals is affirmed.
PETERSON, C. J., concurring.
My reason for writing this separate opinion is to explicitly state a proposition which I believe to be implicit in the majority opinion: Although instructions relating to the defendant‘s duty normally should not refer to the obviousness of the condition, awareness of those expected to encounter the condition is not irrelevant to the question whether the defendant has violated the duty of care owed to the plaintiff.
With respect to conditions which create an unreasonable risk of harm to invitees on property, possessors of land are rеquired to exercise reasonable care to discover such conditions and protect invitees against harm arising from such conditions. The protection can be accomplished in various ways, including removal of the condition or warning against it.
The identical steps may, however, create an unreasonable risk of harm at night if they are improperly lighted. The reason: The hazards might not be apparent to those persons expected to use the steps.
In a negligence case, upon the defendant‘s motion for a directed verdict under
Nylander v. State of Oregon, 292 Or 254, 637 P2d 1286 (1981), involved a claim for damages arising from the presence of ice on an icy highway bridge. We stated:
“In the present case, for instance, whatever duty the state had to post warnings on the morning of November 15, 1978 arose from the fact that the road and bridge were open to vehicular traffic generally, from the objective weather and surface conditions at that time, from the degree to which these conditions could be said to be obvious to the general public without a warning and the degree to which additional localized danger exceeded what was generally obvious, and perhaps from such additional obligations as the state may have undertaken by its own stated rules or guidelines on the subject. * * *” (Emphasis added; footnote omitted.) 292 Or at 258.
The quoted language, while it does not approve instructing juries relative to the defendant‘s duty of care in light of the knowledge of the specific user, certainly makеs clear that one of the factors which determines whether the duty has been breached is the general obviousness of the danger.1
Because of the passage of
Notes
“1. In failing to repair and maintain the defective stair step when they knew, or in the exercise of reasonable care, should have known that the same was rotten and weakened;
“2. In failing to repair the defective handrail when they knew, or in the exercise of reasonable care, should have known, that the same was rotten and weakened;
“3. In failing to warn the plaintiff of the existence of the defective step and handrail which constituted concealed dangers about which defendants knew, or in the exercise of reasonable care, should have known;
“4. In failing to comply with the City of Pendleton Building Code by maintaining the rear stairway of the apartments in a safe condition; and
“5. In failing to make a reasonable inspection of the premises so as to discover the rotten and weakened stair step and handrail.”
The instructions given in the case at bar are subject to criticism under Nylander because they refer to danger which is “known or obvious to the invitee,” rather than to“The accident and consequent injuries sustained by plaintiff were solely the result of plaintiff‘s negligence in one or more of the following particulars:
“A. In failing to keep a proper lookout for his own safety.
“C. In attempting to move a large, heavy television set by carrying it in an unsafe and awkward manner.”
Neither party has made any point of the allegation that plaintiff‘s injuries were “solely” the result of his own negligence. That could be proven under defendants’ denial of plaintiff‘s allegation of a causal relation between defendants’ alleged negligence and plaintiff‘s claimed injuries.
Compare Oregon Jury Instructions for Civil Cases No. 160.10:“When an employer has actual knowledge or in the exercise of reasonable care would have had knowledge of hazards or dangers, the employer is then under the duty of warning an employee of such hazards or dangers as would not be apparent to an employee in the exercise of reasonable care.”
“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lаwfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor‘s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
Plaintiff‘s requested instruction was:
“The owner of an apartment house who retains control over a part of the premises is subject to liability to his tenants and others upon the premises with the consent оf the tenants for injuries caused to them by a dangerous condition upon that part of the premises retained in the owner‘s control, if the owner, by the exercise of reasonable care, could have discovered the dangerous condition and the unreasonable risk involved there and could have made the condition safe.”
The majority apparently recognize that in determining the defendant‘s fault, the trier of fact may consider the obviousness of danger. The majority opinion states that “[i]n determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party.”“The Restatement‘s standard of care incorporates the proscribed defenses into its definition of the possessor‘s duty when it allows the possessor to count on his invitees to discover conditions, realize their dangers, and then protect themselves against the dangers. To apply the limitations of § 343(b) and § 343A(1) to negligence suits under the Amendments [to the Longshoremen‘s and Harbor Workers’ Compensation Act] would violate the legislative intent behind § 905(b) [which set a standard of comparative negligence for maritime tort damages] because it would, in substance if not in form, give defendant shipowners the benefits of a partial or absolute bar to liability having the characteristics of a defense based upon contributory negligence or implied assumption of risk or both.” (Citations omitted)
The Restatement (Second) of Torts has discussed the ramifications of statutory abrogation of the doctrine of assumption of risk:
“* * * Under such statutes the plaintiff is protected if he acts with reasonable care in view of the danger which he encounters, even though he knows the danger and proceeds in the face of it. Although assumption of risk is eliminated by such statutes, it may be held that the defense of contributory negligence is still open to the defendant; or, as under the present form of the Federal Employers’ Liability Aсt, contributory negligence may remain as a partial defense, reducing the damages in proportion to the fault. * * *”
Restatement (Second) of Torts § 496A, comment c.
“The rule stated in this section may also apply even though the person injured, whether he be the tenant himself or a third person, hаs knowledge of the existence of the dangerous condition. His knowledge may put him in contributory fault (as to which see § 463 of Restatement of the Law, Second, Torts), and in that event he will be disabled from maintaining an action for any harm suffered while using the dangerous premises, or may cause his recovery to be reduced proportionately in states applying the doctrine of comparative negligence. But unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use, or unless knowing thе danger he fails to exercise that caution which a reasonable man would exercise under the same circumstances, the landlord is subject to liability to him notwithstanding his knowledge of the existence of the condition.”