Stephen Wolff v. Padja, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN WOLFF, Individually and as No. 16-35495
Personal Representative of the Estate of
Judith Wolff, Deceased, D.C. No. 1:14-cv-01466-CL
Plaintiff-Appellant,
MEMORANDUM*
v.
PADJA, INC., an Oregon corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted July 12, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
Stephen Wolff appeals from the district court’s grant of summary judgment
in favor of Padja, Inc., Douglas Volk, and Patricia Volk, owners and operators of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Chateaulin Restaurant and Wine Bar (“Chateaulin Defendants”); and Michael
Donovan and David Taub (“Landlord Defendants”). Mr. Wolff alleged that the
negligence of the Chateaulin and Landlord Defendants resulted in the death of his
wife, Judith Wolff, and sought relief under Oregon’s wrongful death and survival
statutes. As the parties are familiar with the facts, we do not recount them here.
We reverse and remand.
1. Under Oregon law, possessors of land owe a duty “to discover conditions
of the premises that create an unreasonable risk of harm to the invitee” and “either
to eliminate the condition creating that risk or to warn any foreseeable invitee of
the risk so as to enable the invitee to avoid the harm.” Woolston v. Wells, 687 P.2d
144, 150 (Or. 1984) (en banc); see also Ault v. Del Var Properties, LLC, 383 P.3d
867, 873 (Or. Ct. App. 2016) (“[I]f there was evidence sufficient to create a
question of fact as to whether, in light of all the circumstances, the [premises]
presented an unreasonable risk of harm, then plaintiff was entitled to have a jury
decide that question, as well as the question of what action was necessary to
protect invitees from that risk.” (citations omitted)). The parties do not challenge
on appeal the district court’s holding that a triable issue exists as to whether the
step posed an unreasonable risk of harm.
Contrary to the district court’s holding, there are facts from which a
reasonable jury could infer that the Chateaulin Defendants did not satisfy their duty
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to warn. For example, Mrs. Wolff told the EMT that she “fell forward down a step
she didn’t see.” A jury could infer from this fact that Mrs. Wolff did not see the
step because she was never warned about it in the first place. While this is not the
only possible inference that could be drawn, “[a] ‘justifiable inference’ is not
necessarily the most likely inference or the most persuasive inference” but instead
need only be “‘rational’ or ‘reasonable.’” Narayan v. EGL, Inc., 616 F.3d 895, 899
(9th Cir. 2010) (citation omitted). Because Mr. Wolff is the nonmoving party, this
inference must be drawn in his favor at summary judgment. See Mayes v. WinCo
Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017) (“Inferences must also be
drawn in the light most favorable to the nonmoving party.” (citation omitted)).
Additionally, the only evidence concerning the alleged warning came from a
Chateaulin employee, Ross Williams, who described the incident with different
levels of detail on different occasions and whose potential bias may diminish his
credibility in the eyes of a jury.
A reasonable jury could also conclude that any alleged warning was
inadequate. Under Oregon law, a warning is adequate if it describes both “the
hazardous condition and the risk posed by that condition.” Nelsen v. Nelsen, 23
P.3d 424, 428–29 (Or. Ct. App. 2001) (citation omitted) (holding that a triable
issue existed as to the adequacy of the warning because it provided insufficient
information about the nature of the risk for the plaintiff to take “preventive
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action”). Williams testified at his deposition that he only told Mrs. Wolff that
there was “a large step,” but he did not point to or describe in greater detail the
precise location of the step. Mr. Wolff also testified that the step was difficult to
see. In the light most favorable to Mr. Wolff, these facts, along with Mrs. Wolff’s
statement that she “didn’t see” the step, could allow a reasonable jury to find that
the witness’s warning lacked crucial detail about the nature of the risk and,
consequently, that the warning was inadequate to allow Mrs. Wolff to avoid
falling.
2. The district court also erred in granting summary judgment in favor of the
Chateaulin Defendants on the issue of whether the step was an unreasonably
dangerous condition. See Ault, 383 P.3d at 872–73 (pointing out that “‘a condition
which cannot be encountered with reasonable safety’ . . . could necessitate
more than a warning to fulfill the possessor’s duty to keep the premises reasonably
safe and to protect an invitee from an unreasonable risk of harm, even when the
risk is known and appreciated” (quoting Wilk v. Georges, 514 P.2d 877, 879 (Or.
1973))). Mr. Wolff’s expert opines that it was, and “[e]xpert opinion is itself
sufficient to create a genuine issue of disputed fact sufficient to defeat a summary
judgment motion.” Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 (9th Cir.
1994).
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3. In granting summary judgment in favor of the Landlord Defendants, the
district court relied on “the same undisputed evidence that shows the Chateaulin
Defendants satisfied the standard of care.” Given our holding that there are
disputed facts as to whether the Chateaulin Defendants satisfied the standard of
care, we also reverse the entry of summary judgment as to the Landlord
Defendants.
REVERSED AND REMANDED.
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FILED
Wolff v. Padja, Inc., No. 16-35495
JUL 26 2018
OWENS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent for the reasons given by the district court.