Tow v. K-Mart Corp.

Court of Appeals of Oregon

Tow v. K-Mart Corp.

602 P.2d 1111, 43 Or. App. 341, 1979 Ore. App. LEXIS 3412

CourtCourt of Appeals of Oregon

DecidedNovember 26, 1979

Docket51753, CA 12937

StatusPublished

Cited by3 cases

This text of 602 P.2d 1111 (Tow v. K-Mart Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tow v. K-Mart Corp., 602 P.2d 1111, 43 Or. App. 341, 1979 Ore. App. LEXIS 3412 (Or. Ct. App. 1979).

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Opinions

[343]*343BUTTLER, J.

In this personal injury action, plaintiff appeals rom a judgment entered on a jury verdict which found ach party negligent to the extent of 50%. Three as-ignments of error are presented, only two of which we nil consider.

Plaintiff, while shopping with her mother in efendant’s Albany K-Mart store, slipped on a puddle f clear fingernail polish remover causing her to fall nd break her right leg. There is evidence that approx-nately four or five minutes prior to the accident both laintiff and her mother heard what sounded like a ottle breaking in an aisle other than the one they were in, from which the jury could have inferred that laintiff was or should have been alerted to a danger-ns condition.

Plaintiff assigns error to the court’s instructing the ny: "In this case you are instructed that the defend-nt had no duty to warn of those conditions which are pen and obvious to the plaintiff.” While the law on lis subject is hazy, the instruction greatly oversim-lifies it and is incomplete. The instruction should ave gone on to say that if the condition was unreasonably dangerous, defendant did have a duty to warn of íe danger until it was removed or ameliorated. Dawson v. Payless for Drugs, 248 Or 334, 433 P2d 1019, 35 ALR3d 222 (1967). A slippery entrance way "can fall ito the unreasonably dangerous class,” Pribble v. Safeway Stores, 249 Or 184, 191, 437 P2d 745 (1968), id so may a wet floor. Bertrand v. Palm Springs Spa 257 Or 532, 480 P2d 424 (1971). The duty to warn is it necessarily extinguished if the plaintiff knows of íe danger, Dawson, supra, and Bertrand, supra, but Le extent of the duty may vary with the degree of anger which may be reasonably anticipated. A wam-Lg may not be sufficient where, for example, the ivitee’s attention may be distracted, Wilk v. Georges, 267 Or 19, 25, 514 P2d 877 (1973), which might well be the case where a customer may be expected to be [344]*344looking at the shelves for an item while walking down a store aisle.

It is apparent, however, that the jury found that the defendant was negligent and that its negligence contributed 50% to the plaintiff’s injury. Acordingly, it cannot be said that the failure to give a more accurate instruction with respect to the defendant’s duty to plaintiff caused the jury to conclude that defendant had no duty to plaintiff. Nevertheless, the instruction as given suggests that the danger was open and obvious, and without further instruction as to the defendant’s duty if the jury should find the condition unreasonably dangerous, the instruction might well have affected the jury’s determination that plaintiff was contributorily negligent, or at least the extent to which her negligence contributed to her injury.

Plaintiff also assigns error to the court’s denying her motion to withdraw from the jury defendant’s allegation that plaintiff was contributorily negligent "in failing to maintain control over her bodily movements.” If there were evidence that plaintiff was skipping down the aisle, or doing a Highland fling, the submission of that specification of contributory negligence would have some merit. In this case, however, the only evidence is that the plaintiff was walking in a normal manner at the time she slipped and fell. There is, therefore, no evidence to support the allegation, unless the plaintiff had a duty to the negligent defendant to be adept at slipping without falling, or falling without hurting herself. We know of no such duty.

Accordingly, the specification of contributory negligence should not have been submitted to the jury.

It may well be that neither of the errors by itself constituted reversible error, but we cannot say that taking the two errors together did not affect the jury’s determination that plaintiff was negligent or in comparing the negligence of plaintiff and defendant. We [345]*345onclude that the combined errors were prejudicial, nd therefore reverse and remand for a new trial.

Reversed and remanded.

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[343]*343BUTTLER, J.

In this personal injury action, plaintiff appeals rom a judgment entered on a jury verdict which found ach party negligent to the extent of 50%. Three as-ignments of error are presented, only two of which we nil consider.

Plaintiff, while shopping with her mother in efendant’s Albany K-Mart store, slipped on a puddle f clear fingernail polish remover causing her to fall nd break her right leg. There is evidence that approx-nately four or five minutes prior to the accident both laintiff and her mother heard what sounded like a ottle breaking in an aisle other than the one they were in, from which the jury could have inferred that laintiff was or should have been alerted to a danger-ns condition.

Plaintiff assigns error to the court’s instructing the ny: "In this case you are instructed that the defend-nt had no duty to warn of those conditions which are pen and obvious to the plaintiff.” While the law on lis subject is hazy, the instruction greatly oversim-lifies it and is incomplete. The instruction should ave gone on to say that if the condition was unreasonably dangerous, defendant did have a duty to warn of íe danger until it was removed or ameliorated. Dawson v. Payless for Drugs, 248 Or 334, 433 P2d 1019, 35 ALR3d 222 (1967). A slippery entrance way "can fall ito the unreasonably dangerous class,” Pribble v. Safeway Stores, 249 Or 184, 191, 437 P2d 745 (1968), id so may a wet floor. Bertrand v. Palm Springs Spa 257 Or 532, 480 P2d 424 (1971). The duty to warn is it necessarily extinguished if the plaintiff knows of íe danger, Dawson, supra, and Bertrand, supra, but Le extent of the duty may vary with the degree of anger which may be reasonably anticipated. A wam-Lg may not be sufficient where, for example, the ivitee’s attention may be distracted, Wilk v. Georges, 267 Or 19, 25, 514 P2d 877 (1973), which might well be the case where a customer may be expected to be [344]*344looking at the shelves for an item while walking down a store aisle.

It is apparent, however, that the jury found that the defendant was negligent and that its negligence contributed 50% to the plaintiff’s injury. Acordingly, it cannot be said that the failure to give a more accurate instruction with respect to the defendant’s duty to plaintiff caused the jury to conclude that defendant had no duty to plaintiff. Nevertheless, the instruction as given suggests that the danger was open and obvious, and without further instruction as to the defendant’s duty if the jury should find the condition unreasonably dangerous, the instruction might well have affected the jury’s determination that plaintiff was contributorily negligent, or at least the extent to which her negligence contributed to her injury.

Plaintiff also assigns error to the court’s denying her motion to withdraw from the jury defendant’s allegation that plaintiff was contributorily negligent "in failing to maintain control over her bodily movements.” If there were evidence that plaintiff was skipping down the aisle, or doing a Highland fling, the submission of that specification of contributory negligence would have some merit. In this case, however, the only evidence is that the plaintiff was walking in a normal manner at the time she slipped and fell. There is, therefore, no evidence to support the allegation, unless the plaintiff had a duty to the negligent defendant to be adept at slipping without falling, or falling without hurting herself. We know of no such duty.

Accordingly, the specification of contributory negligence should not have been submitted to the jury.

It may well be that neither of the errors by itself constituted reversible error, but we cannot say that taking the two errors together did not affect the jury’s determination that plaintiff was negligent or in comparing the negligence of plaintiff and defendant. We [345]*345onclude that the combined errors were prejudicial, nd therefore reverse and remand for a new trial.

Reversed and remanded.

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602 P.2d 1111, 43 Or. App. 341, 1979 Ore. App. LEXIS 3412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tow-v-k-mart-corp-orctapp-1979.

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