Appleyard v. Port of Portland ( 2021 )

498
Argued and submitted May 22, 2018, affirmed May 19, 2021
David APPLEYARD,
Plaintiff-Appellant,
v.
PORT OF PORTLAND,
Defendant-Respondent.
Multnomah County Circuit Court
16CV05139; A164927
492 P3d 71
Plaintiff brought this premises-liability action against defendant, seek-
ing damages for injuries that he sustained after tripping over his own luggage
and cutting his foot on the bottom edge of a baggage carousel at the Portland
International Airport. Plaintiff appeals a judgment of dismissal entered after
the jury returned a defense verdict based on its finding that plaintiff was more at
fault for his injury than defendant. Both of plaintiff’s assignments of error rest
on the same premise: that, because plaintiff neither knew nor had any reason
to know that the base of defendant’s baggage carousel had a dangerously sharp
edge, no fault can be attributed to him for the injury that he suffered as a result
of that condition. Held: The trial court did not err in dismissing plaintiff’s claim.
An invitee’s failure to exercise reasonable care for his or her own safety may be
the basis of a comparative-fault defense if the invitee’s negligence relates and
contributes to the harm or risk of harm created by the defendant’s negligence.
Under those circumstances, whether the plaintiff knew or could have known that
an alleged dangerous condition was on the premises is not determinative.
Affirmed.
Leslie G. Bottomly, Judge.
Joshua S. DeCristo argued the cause and filed the briefs
for appellant.
Gregory J. Miner argued the cause for respondent. Also
on the brief was Bateman Seidel Miner Blomgren Chellis &
Gram, P.C.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
DeHOOG, P. J.
Affirmed.
______________
* DeVore, J., vice Hadlock, J. pro tempore.
Cite as 311 Or App 498 (2021) 499
DeHOOG, P. J.
Plaintiff brought this premises-liability action
against defendant, Port of Portland, seeking damages for
injuries he sustained when he tripped over his own luggage
and cut his foot on the bottom edge of a baggage carousel
at the Portland International Airport (PDX). Plaintiff now
appeals a general judgment of dismissal entered following
a jury verdict in defendant’s favor. The jury found that,
although the fault of each party had been a cause of plain-
tiff’s injury, plaintiff was more at fault than defendant; plain-
tiff, therefore, was not entitled to recover, and the trial court
dismissed his claim. As we discuss below, plaintiff presents
his appeal as raising a novel question of law: whether, in
a premises-liability case, a business invitee’s negligent con-
duct can give rise to comparative fault1 when the invitee
did not know and could not have known of the presence of
the dangerous condition or unreasonable risk of harm that
allegedly caused the invitee’s injury. Plaintiff argues that
his status as a business invitee on defendant’s premises
limited his duty of care to acting reasonably to avoid harm
from conditions of which he was, or at least should have
been, aware, which, he contends, did not include the sharp
underside of the baggage carousel. Defendant responds that
a plaintiff’s reasonable care for his own safety is always rel-
evant to comparative fault, even in a premises-liability case.
For the reasons that follow, we conclude that the trial court
did not err in dismissing plaintiff’s claim. Accordingly, we
affirm.
At the outset, we clarify our understanding that,
although plaintiff raises two assignments of error on appeal,
his assignments share a single premise, and our assessment
of that premise will determine that outcome of this appeal.
Plaintiff argues under his first assignment of error that his
negligence in tripping over his own luggage could play no
1
The parties use the terms comparative fault, contributory fault, compar-
ative negligence, and contributory negligence interchangeably throughout the
record. To avoid confusion with the abrogated doctrine of contributory neg-
ligence, see ORS 31.600, and to remain consistent with recent Supreme Court
articulation, we refer only to comparative fault and comparative negligence in
this opinion. See State v. Gutierrez-Medina, 365 Or 79, 84, 442 P3d 183 (2019)
(explaining that although the title of ORS 31.600 continues to use “comparative
negligence,” the concept is readily known as “comparative fault”).
500 Appleyard v. Port of Portland
role in the jury’s attribution of fault for his injury.2 In his sec-
ond assignment of error, plaintiff argues that there was no
evidence to support defendant’s assertion that he was negli-
gent with regard to the injury that he suffered. Ultimately,
both assignments of error rest on the same premise, which
is that, because plaintiff neither knew nor had any reason
to know that the base of defendant’s baggage carousel had
a dangerously sharp edge, no fault can be attributed to him
for the injury that he suffered as a result of that condition.
With that understanding in mind, we proceed.
I. FACTS AND PROCEDURAL BACKGROUND
Plaintiff’s numerous assignments of error implicate
various standards of review, not all of which require us to
view the facts in the same light. However, to give context to
the parties’ arguments, we provide the following summary
of the historical and procedural facts, none of which seem
to be in material dispute. Plaintiff and his wife flew from
Minnesota to Portland for their granddaughter’s wedding.
After landing at PDX, plaintiff went to a baggage carousel to
retrieve their luggage. Plaintiff removed a suitcase from the
carousel and placed it next to him. Plaintiff then reached for
a second bag coming around on the carousel, but, as he did
so, he tripped over the first bag, which caused him to fall.
When plaintiff fell, his right foot was thrust upward against
the underside of the baggage carousel and, as a result, he
suffered a deep cut to his foot. Plaintiff’s injury required
surgery, a three-day stay in the hospital, and roughly three
months of recovery.
Following the accident, plaintiff sued defendant
Port of Portland, which owns and operates PDX. Among
2
It bears noting that, under his first assignment of error, plaintiff asserts
a general challenge to the trial court’s “rulings” related to the determination of
comparative fault. Then, only under his preservation of error section does plain-
tiff purport to “assign as error” the trial court’s specific rulings, including the
court’s denial of his (1) motion to strike, (2) motion for a directed verdict, (3) objec-
tions to jury instructions, (4) objection to the verdict form, (5) motion for judgment
notwithstanding the verdict, and (6) motion for new trial. That approach does
not comply with the applicable rules of appellate procedure. See ORAP 5.45(2)
(requiring each assignment of error to be separately stated under a numbered
heading); ORAP 5.45(3) (requiring each assignment of error to identify the spe-
cific ruling being challenged). However, because each of those specifications
raises essentially the same legal question, our efforts to review plaintiff’s appeal
are not unduly impaired; for the same reason, we consider them collectively.
Cite as 311 Or App 498 (2021) 501
other things, plaintiff alleged that “a sharp metal edge on
the baggage carousel housing” had “severely lacerated” his
right foot. Plaintiff further alleged that the presence of the
metal edge had created a dangerous condition and unrea-
sonable risk of harm of which defendant had known or
should have known.3 At trial, plaintiff acknowledged having
known that there was a space beneath the carousel “to stick
your toes under if you were reaching over to get a bag.” He
denied, however, being aware of the character of the base of
the carousel, such as the material or thickness of the trim.
Plaintiff contended that defendant had been negligent and
was liable for his injury because defendant had violated its
duty to make the premises safe for its business invitees,
including airline passengers.4 An expert witness who testi-
fied on plaintiff’s behalf acknowledged that the force gener-
ated by his fall had contributed to the severity of his injury.
Plaintiff maintained, however, that, because the sharp edge
was a dangerous condition and posed an unreasonable risk
of harm, defendant had been negligent in failing to warn
invitees of its presence and allowing it to remain. In its
defense, defendant disputed that the edge of the carousel
had been sharp and attributed plaintiff’s injury to the blunt
force created by his negligent fall.5 More significantly for
3
Plaintiff filed his complaint before we issued our decision in Ault v. Del
Var Properties, LLC, 281 Or App 840, 847, 383 P3d 867 (2016), rev den, 361 Or
311 (2017), in which we explained that premises-liability claims alleging “unrea-
sonably dangerous conditions” and claims alleging “unreasonable risks of harm”
are distinct. However, throughout the ensuing litigation, most of which followed
the issuance of Ault, plaintiff framed his arguments in terms of a “condition”
on defendant’s premises, focusing on the alleged sharp edge on the underside of
defendant’s baggage carousel, and defendant’s arguments largely tracked that
characterization. Ultimately, we do not understand any distinction between
dangerous conditions and unreasonable risks of harm to be central to plaintiff’s
argument that, as a matter of law, no fault for his injury could be attributed to
him; rather, his emphasis is on whether his own negligence was in relation to any
risk or danger of which he knew or, under the circumstances, could have known.
4
Neither party disputes that, under our case law, plaintiff’s status was that
of defendant’s business invitee. See e.g., Towe v. Sacagawea, Inc., 357 Or 74, 87,
347 P3d 766 (2015) (“Under conventional common-law principles, when the defen-
dant is an occupier of land and the plaintiff is someone who was injured on the
defendant’s land, the nature and scope of the defendant’s liability to the plaintiff
depends on the plaintiff’s status as a licensee, an invitee, or a trespasser on the
defendant’s property.”).
5
Security footage presented at trial depicted plaintiff falling on his suitcase
in such a way that his leg was forcefully leveraged against the carousel hous-
ing, with the suitcase acting as a fulcrum. Although defendant’s answering brief
502 Appleyard v. Port of Portland
purposes of this appeal, defendant asserted as part of an
affirmative defense of comparative negligence that plain-
tiff’s own negligence had caused, in whole or in part, the
injury that he had sustained.
At trial, plaintiff raised various challenges to
defendant’s assertion of comparative fault as an affirma-
tive defense. Plaintiff first moved to exclude evidence of the
defense and sought to have it stricken, arguing that his duty
as an invitee was to take reasonable care to avoid conditions
of which he was aware or should be aware, which, he con-
tended, did not include the condition of the carousel. He later
made essentially the same argument when arguing about
jury instructions, and again when moving for a directed ver-
dict as to the defense, objecting to the verdict form, moving
for judgment notwithstanding the verdict (JNOV), and seek-
ing a new trial. Each time, the trial court rejected plain-
tiff’s argument that the jury should not be permitted to con-
sider defendant’s comparative-fault defense and that, even
if the jury could consider comparative fault, his own negli-
gence in tripping over his suitcase was immaterial to that
defense.
In instructing the jury at the close of evidence, the
trial court gave a series of instructions explaining prem-
ises liability, the duty that a possessor of land owes to its
invitees, the duty of an invitee, comparative negligence,
causation, and foreseeability. Over plaintiff’s objection, the
court instructed the jury regarding an invitee’s duty as
follows:
“COMPARATIVE NEGLIGENCE (INVITEE)
“An invitee is required to exercise reasonable care to
avoid harm from a condition on the premises of which the
invitee knows or, in the exercise of reasonable care, should
know. A person has a duty to keep and maintain a reason-
able lookout and control over bodily movements, for their
own safety.
could be understood to argue that the condition of its baggage carousel presented
neither a dangerous condition nor an unreasonable risk of harm, the jury found
otherwise, and defendant has not cross-appealed or cross-assigned error to any
ruling in that regard. Moreover, defendant acknowledged at oral argument that
there was evidence at trial to support a jury finding that the baggage carousel
trim had been sharp.
Cite as 311 Or App 498 (2021) 503
“In determining and comparing negligence, if any, you
must consider the obviousness of danger and the ease or
difficulty with which harm to the plaintiff from that dan-
ger could be avoided by either party.”
(Boldface omitted.) Plaintiff objected to that instruction
on the ground that it misstated the law and was not sup-
ported by the evidence. He argued that the requirement in
the first paragraph, that a person “keep and maintain a
reasonable lookout and control over bodily movements, for
their own safety” (the lookout instruction), and the entire
second paragraph were inappropriate notwithstanding our
decision in Vandeveere-Pratt v. Portland Habilitation Center,
242 Or App 554, 556, 259 P3d 9 (2011), which defendant had
cited in support of the instruction. Additionally, he argued
that the lookout instruction improperly revived the concept
of implied assumption of the risk, a defense that the leg-
islature has abolished in Oregon.6 Defendant’s overarching
objection to the instruction was, as noted, the same as his
argument throughout the trial, namely, that, because he did
not know and could not know about the dangerous condition
that injured him, he could not be comparatively at fault for
his injury. Notwithstanding plaintiff’s arguments, the trial
court gave the disputed instruction in its entirety.7
As to comparative negligence, generally, the trial
court gave an instruction that closely tracked the combined
language of UCJI 21.01 and UCJI 21.02 (which themselves
purport to implement ORS 31.600) as follows:
“COMPARATIVE NEGLIGENCE
“The law provides for comparative negligence. This
means that you are to determine each party’s negligence, if
any. You will have one verdict form, which I will explain to
you.
6
The legislature abolished the doctrine of implied assumption of the risk in
1975. See Vandeveere-Pratt, 242 Or App at 562 (acknowledging the doctrine was
abolished by former ORS 18.475(2) (1975), renumbered as ORS 31.620(2) (2003)).
7
Plaintiff indicated that, to the extent that the trial court viewed the matter
as one better decided after all of the evidence had been heard, he would make his
argument in the context of a later motion to preclude all instructions related to
comparative fault. Although he did not expressly make such a motion, he effec-
tively did when, in the context of his motion for a directed verdict as to the affir-
mative defense of comparative fault, defendant argued that the defense should
not go to the jury.
504 Appleyard v. Port of Portland
“The plaintiff and the defendant have each alleged that
the damage was caused by the other’s fault. If you find that
both the defendant and the plaintiff were at fault and that
their fault caused the alleged damage, then you must com-
pare the fault of the plaintiff to the fault of the defendant.
“In making this comparison, you must measure the per-
centage of fault of each and not the percentage of damage
caused by each.
“The comparison of fault must be expressed in terms of
percentages that total 100 percent. If the plaintiff’s fault
is more than 50 percent, then your verdict is for the defen-
dant. On the other hand, if the plaintiff’s fault is 50 percent
or less, then your verdict is for the plaintiff.
“Do not reduce the amount of the plaintiff’s damages,
if any, as a result of your comparison. I will reduce the
amount of your verdict by the percentage of the plaintiff’s
fault, if any.”
(Boldface omitted.) Although plaintiff challenged defen-
dant’s assertion of any comparative-fault defense, he did
not—and does not—dispute that, to the extent that the
defense was available, the instruction that the court gave
correctly stated the law.
The jury returned a defense verdict that included
several special findings. First the jury found that defen-
dant was at fault “in one or more of the ways” asserted by
plaintiff; the jury further found that defendant’s fault had
been a cause of plaintiff’s damages. However, the jury also
found plaintiff at fault for his injury and found that, like
defendant’s fault, plaintiff’s fault had been a cause of his
damages. Based on its findings, the jury returned a verdict
in favor of defendant, specifically finding plaintiff 51 per-
cent at fault for his injury and defendant 49 percent at fault.
In light of that result, the trial court dismissed plaintiff’s
claims with prejudice.8
II. THE PARTIES’ ARGUMENTS ON APPEAL
Plaintiff now appeals the dismissal of his claims. In
his first assignment of error, he argues that, as a matter of
8
As the court instructed the jury, under ORS 31.600(1), a claimant is barred
from recovery if his or her negligence was more responsible for the injury at issue
than the combined fault of all the parties against whom recovery is sought.
Cite as 311 Or App 498 (2021) 505
law, the trial court improperly allowed the jury to consider
his conduct in falling over his own bag as a basis for com-
parative fault. He emphasizes that, because this is a premis-
es-liability case involving a possessor of land and a business
invitee, the duties of each party are defined by their special
relationship. Plaintiff asserts that, for two reasons, he can-
not be deemed to share fault for his injury in this case. First,
plaintiff argues, because defendant was shown to have been
aware that invitees sometimes fall when collecting their
luggage, defendant was responsible for providing reasonably
safe premises to account for that foreseeable occurrence.
Second, he argues, his failure to avoid tripping over his own
bag was wholly independent of the dangerous condition at
issue and, therefore, he could not have violated any duty in
regard to that condition. Plaintiff reasons that, because his
only duty as an invitee was to exercise reasonable care with
respect to conditions of which he was aware or should have
been aware—and it is undisputed that he had no reason to
know of the sharp edge at the base of the carousel—no fault
can be attributed to him for encountering that dangerous
condition.
Plaintiff observes that this case raises a novel issue
under Oregon law because, unlike the typical premises-lia-
bility case involving a comparative-fault defense, plaintiff’s
alleged negligence in this case was not that he had unreason-
ably failed to avoid or appreciate the specific instrumental-
ity of his harm, namely, the sharp metal edge at the bottom
of the baggage carousel; rather, defendant’s theory was that
plaintiff’s negligence in tripping over his bag had “brought
him” to that allegedly dangerous condition. However,
plaintiff analogizes his case to Son v. Ashland Community
Healthcare Services, 239 Or App 495, 244 P3d 835 (2010),
rev den, 350 Or 297 (2011), a case in which the plaintiff’s
negligent drug overdose led her to an emergency room visit
where she allegedly received negligent care. Plaintiff views
our decision in Son as “highly instructive” due to its holding
that a patient who negligently injures herself remains enti-
tled to nonnegligent medical care. Plaintiff observes that,
as in Son, the parties in this case were in a special rela-
tionship that defined their duties, and that, in each case,
the negligent actions of the plaintiff “brought” him or her to
506 Appleyard v. Port of Portland
the negligence of the defendant. Plaintiff reasons that, just
as the plaintiff in Son was entitled to nonnegligent medi-
cal care even though her own negligence had occasioned her
need for care, he was similarly “entitled to a subsequently
safe premises” in which to fall when he negligently (but,
from defendant’s perspective, foreseeably) tripped in defen-
dant’s baggage-claim area.
Plaintiff characterizes his argument under his sec-
ond assignment of error as an alternative to his first, but, as
noted, his second argument assumes the correctness of his
assertion that he can bear no fault in relation to a condition
of which he could not have been aware; in other words, the
premise of his first assignment of error. From that premise,
plaintiff argues that, even accepting that his negligence in
tripping over his own suitcase could theoretically be weighed
against defendant’s negligence in failing to provide a safe
baggage-claim area, it should not have been here, because
there was no evidence that he knew or should have known
of the dangerous condition that caused his injury. That is,
whether or not he behaved negligently in the abstract, the
record was insufficient to support a jury finding that he was
negligent or otherwise at fault in regard to that condition.
In response to plaintiff’s first assignment of error,
defendant argues that plaintiff’s formulation of the duties
associated with premises liability transforms a possessor of
land into an insurer of business invitees.9 Defendant asserts
that, regardless of the duties that the parties’ special rela-
tionship may define, an invitee’s reasonable care for his or
her own safety is always relevant to determining whether
the invitee shares responsibility for injuries suffered on
another’s premises. In defendant’s view, the Son case is
inapposite because, defendant reasons, the decedent in Son
suffered two distinct injuries, one of which resulted solely
9
Defendant first spends considerable time disputing whether the baggage
carousel trim presented an unreasonably dangerous condition. However, plain-
tiff argued to the jury that there was a dangerous condition in the form of a sharp
edge, the jury found defendant partly at fault in reliance on that theory, and
defendant has not cross-appealed or cross-assigned error to any ruling in regard
to that finding. Thus, the question whether the baggage-carousel trim was an
unreasonably dangerous condition is not before us on appeal. See generally, Ault,
281 Or App at 851-52 (distinguishing between an allegation of an unreasonable
risk of harm and an unreasonably dangerous condition).
Cite as 311 Or App 498 (2021) 507
from the defendants’ negligent care, whereas, here, plain-
tiff suffered a single injury due to the combined fault of the
parties. As to plaintiff’s second assignment of error, defen-
dant does not dispute that plaintiff did not know and could
not have known of the condition at the base of the carousel,
but contends that it was not required to prove that fact in
light of plaintiff’s established negligence in tripping over his
suitcase.
III. STANDARD OF REVIEW
As we have noted, plaintiff’s appeal implicates mul-
tiple standards of review. However, as to at least plaintiff’s
first assignment of error, his argument on appeal effectively
reduces to an assertion that the trial court erred in allow-
ing the jury to consider the affirmative defense of compar-
ative fault as articulated in the trial court’s instructions to
the jury. In other words, if the court did not commit revers-
ible error in instructing the jury as it did, then plaintiff’s
first assignment of error necessarily fails.10 Thus, we turn
our attention to that question. First, however, we set out
the various standards of review applicable to assertions of
instructional error.
“As a general rule, parties in a civil action are enti-
tled to jury instructions on their theory of the case if their
requested instructions correctly state the law, are based
on the current pleadings in the case, and are supported by
evidence.” Vandeveere-Pratt, 242 Or App at 557-58 (internal
quotation marks omitted). In order to be a correct statement
of law, the instruction must be “complete and accurate in all
respects.” Sloan v. Providence Health System-Oregon, 282 Or
App 301, 312, 386 P3d 203 (2016), aff’d, 364 Or 635, 437 P3d
1097 (2019). Because plaintiff contends that the instruction
that the trial court gave regarding an invitee’s duty was
erroneous, “we review the given instruction to determine
whether it probably created an erroneous impression of the
law in the minds of the jurors that affected the outcome
of the case.” Moorehead v. TriMet, 273 Or App 54, 64, 359
P3d 314 (2015), rev den, 358 Or 550 (2016). When making
10
As we conclude below, because the premise of plaintiff’s second assignment
of error is ultimately indistinguishable from that underlying his first, we need
not separately consider the legal merits of plaintiff’s second assignment.
508 Appleyard v. Port of Portland
that assessment, we do not review the instruction in iso-
lation; rather, we review the instructions in their entirety
to determine whether, as a whole, they correctly stated the
law. State v. Hogevoll, 348 Or 104, 108, 228 P3d 569 (2010).
Finally, instructional error does not, itself, warrant a rever-
sal. Instead, we will only reverse if the error “substantially
affected a party’s rights.” Vandeveere-Pratt, 242 Or App at
558 (internal quotation marks omitted). As relevant to this
appeal, “ ‘[w]hen a trial court incorrectly instructs the jury
on an element of a claim or defense and when that incor-
rect instruction permits the jury to reach a legally errone-
ous result, a party has established that the instructional
error substantially affected its rights.’ ” Id. (quoting Wallach
v. Allstate Ins. Co., 344 Or 314, 329, 180 P3d 19 (2008)).
IV. ANALYSIS
A. Premises Liability, Generally
Generally speaking, the duties owed by a posses-
sor of land and a business invitee are discrete concepts. A
possessor of land is required to discover conditions of the
premises that create an unreasonable risk of harm and
either eliminate those conditions or warn foreseeable invi-
tees to enable them to avoid harm. Maas v. Willer, 203 Or
App 124, 129, 125 P3d 87 (2005), rev den, 340 Or 411 (2006).
Notwithstanding that duty to its invitees, a possessor of
land does not take on the role of “an insurer against acci-
dents upon the premises even as to persons whom they have
invited to enter.” Hagler v. Coastal Farm Holdings, Inc., 354
Or 132, 141, 309 P3d 1073 (2013) (internal quotation marks
omitted). Consistent with that principle, a business invitee
must exercise reasonable care to avoid harm from known
conditions or those that should be known to the invitee.
Maas, 203 Or App at 129.
In determining whether and to what extent a pos-
sessor of land is liable for injuries caused by a condition on
the land, the jury must compare each party’s relative fault
for the invitee’s harm. ORS 31.600 (providing that fault
attributable to a plaintiff is not a bar to recovery if it does
not exceed the combined fault of all other contributors, but
requiring damages to be “diminished in the proportion to the
percentage of fault attributable to the” plaintiff). However,
Cite as 311 Or App 498 (2021) 509
in assessing fault in the first instance, the jury must deter-
mine each party’s fault, if any, without reference to the other
party. Woolston v. Wells, 297 Or 548, 556, 687 P2d 144 (1984)
(“The comparison of the parties’ fault will only be meaning-
ful if each party’s fault is determined without reference to
the other party * * *.”). As the Supreme Court explained in
Woolston,
“if the jury were instructed that [a] plaintiff is at fault for
his own injury if he should expect that a reasonable land
occupier would not have discovered the danger or would fail
to protect entrants against it, the impropriety is apparent.
We hold that it is no less improper to define [a] defendant’s
liability in these same terms.”
Id.; see also Vandeveere-Pratt, 242 Or App at 562 (explaining
that, because the doctrine of assumption of risk has been
abolished, “a plaintiff’s actions are no longer relevant to the
defendant’s duty of care” in the premises-liability context).
In discussing how the 1971 abolition of contribu-
tory negligence as a complete bar to recovery affected the
duties between a possessor of land and a business invitee,
the Supreme Court stated:
“Where the issues of fact are framed by allegations of
a defendant’s negligence, defendant’s denial thereof and
defendant’s affirmative 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 neg-
ligence. 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 the same or similar circumstances.
“In general, it is the duty of the possessor of land to
make the premises reasonably safe for the invitee’s visit.
The possessor must exercise the standard of care above
stated to discover conditions of the premises that create
an unreasonable risk of harm to the invitee. The possessor
must exercise that standard of care either to eliminate the
condition creating that risk or to warn any foreseeable invi-
tee of the risk so as to enable the invitee to avoid the harm.
510 Appleyard v. Port of Portland
“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.”
Woolston, 297 Or at 557-58 (internal citation omitted; empha-
sis added).
Since Woolston, Oregon courts have adhered to that
understanding of an invitee’s duty of care. See Garrison v.
Deschutes County, 334 Or 264, 278, 48 P3d 807 (2002); Maas,
203 Or App at 129. However, no decision has expressly
addressed whether, for purposes of a comparative-fault
analysis, an invitee can always be held accountable for fail-
ing to exercise “the standard established for the protection
of others, or oneself, against unreasonable risk of harm,” or,
instead, only when the invitee fails to exercise that degree
of care with respect to avoiding harm from conditions on the
premises of which the invitee is or should be aware.
B. Son v. Ashland Community Healthcare Services
As mentioned above, plaintiff analogizes his case
to our decision in Son. Although we agree that Son provides
some helpful guidance, we view that case somewhat differ-
ently than plaintiff does. Because it is central to plaintiff’s
argument on appeal, we explore that decision in some detail.
Son was a wrongful death case. 239 Or App at
498. In that case, after returning home from a party at
which she had consumed alcohol and cocaine, the 16-year-
old decedent, Sara, ingested an unknown quantity of pre-
scription pills, including some leftover medications that
her father, Burns, had stored in a box in the garage. Id. at
498-99. We described the ensuing events as follows:
“The next morning Sara was incoherent, uncoordinated,
and vomiting. Burns took her to the emergency room at
Ashland Community Hospital at approximately 11:00 a.m.
At the time of her arrival, there remained confusion as to
both the identification and quantity of the substances that
Sara had taken. The hospital records indicate that Sara
informed a nurse that she had consumed some alcohol and
cocaine at the party. In addition, Burns’s fiancée and Sara’s
friend gathered loose pills and empty pill bottles from the
house and took them to the hospital. One of the empty pill
Cite as 311 Or App 498 (2021) 511
bottles was labeled as Propacet, which is a medication con-
taining acetaminophen and propoxyphene.
“Defendant Rostykus was the emergency room physician
at the time of Sara’s admission. He initially administered
Narcan to combat any narcotics in her system and diag-
nosed Sara with acetaminophen toxicity related to a poly-
drug overdose. He suggested that she be admitted to the
hospital for n-acetylcysteine treatment for acetaminophen
toxicity and continued monitoring for a narcotic overdose.
He provided her care until approximately 2:00 p.m. when
Sara was transferred to the Intensive Care Unit (ICU) and
responsibility for her care shifted to defendant Delgado.
Delgado monitored Sara, but her condition quickly deteri-
orated around 5:00 p.m., and she died shortly thereafter.
The Oregon State Medical Examiner and the Jackson
County Medical Examiner listed the official cause of
death as “sudden cardiac arrhythmia due to propoxyphene
overdose.”
Id. Following Sara’s death, her mother filed a wrongful
death action alleging, in part, that Sara’s doctors had pro-
vided negligent treatment resulting in her death. Id. at 499.
In response, the defendants raised several
comparative-fault affirmative defenses, including allega-
tions that Sara had caused or contributed to her own death
by consuming the various substances that she had and by
failing to accurately tell her family, the nurses, or the defen-
dant doctors what substances she had consumed and when
and in what amount she had consumed them; defendants
further alleged that Burns was comparatively at fault for
failing to take “adequate preventative measures” in light of
a previous suicide attempt by Sara that Burns knew about.
Id. at 499-500. The trial court subsequently granted the
plaintiff’s motion to strike the defense related to Sara’s con-
sumption of substances, but it allowed the “failure to tell”
defense to go forward; it also denied the plaintiff’s motion
to strike, as legally defective, the comparative-fault allega-
tion as to Burns. Id. at 500. At the conclusion of trial, the
jury returned a verdict for the plaintiff, but, based upon the
jury’s findings, the court reduced the damages award by
25 percent attributable to Sara’s fault in failing to tell and
15 percent attributable to Burns’s fault related to Sara’s ear-
lier suicide attempt. Id. at 501.
512 Appleyard v. Port of Portland
The plaintiff appealed the trial court’s rulings
allowing the jury to consider the defendants’ affirmative
defenses regarding Sara’s “failure to tell” and Burns’s
alleged negligence; the defendants cross-appealed the court’s
ruling striking their affirmative defense regarding Sara’s
consumption of substances. Id. at 502. As to Sara’s alleged
failure to tell, we rejected the plaintiff’s argument that,
because nothing indicated that the defendants would have
done anything differently had they known the details of
Sara’s Propacet ingestion, the evidence was insufficient to
establish that her failure to tell had caused or contributed
to her death. Id. at 502-04. As to that defense, we concluded
that there was evidence from which the jury could find that
Sara had failed to inform the defendants of her Propacet
ingestion and that, had she done so, the defendants could
have tailored her treatment appropriately and saved her
life. Id. at 505. Accordingly, the trial court had not erred in
allowing that defense to go to the jury. Id.As to the affirmative defense based on Sara’s pre-
admission conduct, we broadly stated that “conduct by a
patient that created the condition that required medical care
in a medical malpractice action [cannot] constitute an affir-
mative defense.” Id. at 505. In the course of reaching that
conclusion, we observed that medical malpractice actions
fall under a special category of negligence claims involving
a “special relationship between the plaintiff and the defen-
dant.” Id. at 506; see also Fazzolari v. Portland School Dist.
No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987) (discussing Oregon’s
adherence to the common-law concept of duty in special rela-
tionship cases). In such cases, a professional providing care
to another has a duty to “meet the standard of care used in
the reasonable practice of the profession in the community.”
Son, 239 Or App at 506 (internal quotation marks omitted).
And, we emphasized, “the focus in a medical malpractice
case is on the injury caused by the negligent treatment, not
the original injury that created the need for the treatment.”
Id. at 508-09.
Notwithstanding that focus on a defendant’s duty in
“special relationship” cases, we did not reject out of hand the
possibility that a plaintiff could be comparatively at fault in
Cite as 311 Or App 498 (2021) 513
such cases. Rather, we began by describing the general rule
as follows:
“[T]he Fazzolari standard, as applied in comparative fault
cases, has been stated as whether the facts of the case indi-
cate that the plaintiff ‘took some action or failed to take
some action which a reasonable person could have foreseen
would increase the risk of harm to the plaintiff, and that
the plaintiff did indeed suffer harm of the type which could
have been foreseen * * *.’ ”
Id. at 507 (quoting Dahl v. BMW, 304 Or 558, 563, 748 P2d
77 (1987)). Then, after acknowledging that we had not pre-
viously considered whether a comparative-fault affirmative
defense was available in the medical malpractice context,
we recognized that there was no reason that it should not
be, for the simple reason that medical malpractice cases
were, ultimately, simply another “form of negligence.” Son,
239 Or App at 509. We continued: “[A]nd, in the negligence
context, findings of comparative fault can be based on the
plaintiff’s failure to take reasonable measures which might
have prevented or reduced the injury caused by the defen-
dant’s negligence.” Id. (first emphasis added; second empha-
sis in original; internal quotation marks omitted). However,
to establish such a defense in a medical malpractice suit,
a defendant would have to show “that the plaintiff’s neg-
ligent conduct relate[d] and contribute[d] to the negligent
treatment, because it is the negligent treatment that causes
the injury that is at issue.” Id. (emphasis added); see also id.
at 510 (“[A]s a matter of law, conduct that merely creates the
need for medical treatment cannot cause the type of harm
at issue in medical malpractice cases—the injury resulting
from the malpractice.” (Emphasis added.)).11 Applying that
standard to the defendants’ allegations about Sara’s pread-
mission conduct, we held that the trial court had properly
stricken that affirmative defense. Id. at 512.12
11
Citing a treatise and case law from another jurisdiction, we stated that
the “patient’s negligence must have been an element in the transaction on which
the malpractice is based.” Son, 239 Or App at 509-10. Though we did not use the
term, we understand those sources to have required a showing of “proximate
cause,” rather than mere but-for cause, between the plaintiff’s negligence and the
harm.
12
For the same reasons that we held that the trial court had not erred in
striking the affirmative defense regarding Sara’s preadmission conduct, we held
514 Appleyard v. Port of Portland
C. Application
We glean from our decision in Son and related case
law several relevant principles. First, the fact that the duties
of the respective parties are defined by their special rela-
tionship does not, for that reason alone, preclude a defen-
dant from relying on ordinary principles of comparative
fault as a defense. See id. at 509 (recognizing professional
malpractice as “a form of negligence” and therefore a context
in which a comparative-fault defense may be raised). And,
although plaintiff argues that it was defendant’s duty to
make its premises safe even in light of the foreseeable neg-
ligence of its invitees—and contends that his own duty was
limited to conditions of which he was aware or should have
been aware—he correctly refrains from contending that his
status as an invitee wholly excused him of his own duty of
care. See Woolston, 297 Or at 558 (“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.”);
cf. Bowlds v. Taggesell Pontiac Co., 245 Or 86, 95, 419 P2d
414 (1966) (stating, before contributory negligence was abol-
ished as a complete defense, that “[t]he law which requires
a plaintiff to exercise the measure of care for his own safety
that would be exercised by a reasonably prudent person for
his own safety in the same or similar circumstances does
not change merely because the plaintiff is an invitee”).
Second, although the question of whether a defen-
dant has breached the duty imposed by a special relation-
ship must, as plaintiff emphasizes, be evaluated “without
reference to the other party,” Woolston, 297 Or at 556, a
defendant’s special duty towards a particular plaintiff does
not require the jury to disregard the plaintiff’s negligence,
even where the defendant knows or has reason to know that
persons in the plaintiff’s position sometimes behave negli-
gently. The plaintiff in Son argued that there was no evi-
dence to support an argument that the decedent’s negligence
in failing to tell her providers what she had consumed had
that the trial court had erred in permitting the jury to consider the defendant’s
affirmative defense related to Burns’s conduct, which, like Sara’s substance use,
had not been shown to be related to her negligent medical care. Son, 239 Or App
at 512-16.
Cite as 311 Or App 498 (2021) 515
caused or contributed to her death; that, according to the
plaintiff, was because the evidence established that “over-
dose patients are not reliable reporters of what and how
much they have consumed.” 239 Or App at 503. In essence,
the plaintiff’s contention was that, because that decedent’s
treatment providers should have anticipated that she would
fail to exercise reasonable care for her own safety in that
manner, the decedent’s foreseeable behavior could not be
attributed to the plaintiff in a comparative-fault analysis.
Having at least implicitly rejected that argument in Son by
upholding the allowance of the defendants’ “failure to tell”
defense, we expressly reject plaintiff’s analogous argument
here that defendant’s affirmative defense was foreclosed
because defendant knew or should have known that plain-
tiff would fail to exercise reasonable care for his own safety
while claiming his bags. Cf. Gardner v. OHSU, 299 Or App
280, 286-87 & n 3, 450 P3d 558 (2019), rev den, 366 Or 292(2020) (distinguishing, in a wrongful death action against
mental-health providers following decedent’s suicide, cer-
tain custodial circumstances in which a care provider has
assumed an affirmative duty of self-care for a patient or
inmate).
Third, although an owner or possessor of premises
may raise a comparative-fault defense even when it has rea-
son to believe that some of its invitees will behave negli-
gently in some way, the invitee’s fault must “relate and con-
tribute” to the defendant’s actionable conduct. Son, 239 Or
App at 509 (“[T]he plaintiff’s negligent conduct must relate
and contribute to the negligent treatment, because it is the
negligent treatment that causes the injury that is at issue.”).
Thus, in terms of plaintiff’s claim that a sharp metal edge
on the housing of defendant’s baggage carousel created an
unreasonably dangerous condition, the relevant question
here is whether the trial court properly limited the jury’s
consideration to any fault on plaintiff’s part that may have
related and contributed to the danger presented by the trim,
because it was allowing that alleged condition to exist that
formed the basis of defendant’s liability.
So stated, those principles expose the flaw in
plaintiff’s principal argument on appeal. As noted above,
at the root of each of plaintiff’s assignments of error is his
516 Appleyard v. Port of Portland
contention that, as a matter of law, the jury could consider
defendant’s affirmative defense of comparative fault only if
there was evidence to show that he knew or should have
known of the alleged dangerous condition. That is, each of
plaintiff’s various challenges to the evidence that the jury
heard, to how it was instructed, to the denial of his motion
for a directed verdict, and to the trial court’s other rulings
is premised on plaintiff’s erroneous understanding that
defendant was required to establish that plaintiff knew or
should have known of the condition of defendant’s baggage
carousel before the jury could consider defendant’s affirma-
tive defense. We do not read our case law to support such
a requirement. As a result, plaintiff’s principal argument,
based, as it is, upon there being such a requirement, cannot
succeed.13
We turn finally to the one argument plaintiff raises
that does not depend on the success of his principal argu-
ment. Plaintiff objected to the second sentence of the court’s
“Comparative Negligence (Invitee)” jury instruction. That
instruction, to which plaintiff objected, states the lookout
instruction as follows: “A person has a duty to keep and main-
tain a reasonable lookout and control over bodily movements,
for their own safety.” Plaintiff contends that that instruc-
tion revives the abolished doctrine of implied assumption of
the risk and is impermissible under our premises-liability
decision in Vandeveere-Pratt. In that case, the plaintiff fell
and injured herself when, despite the placement of warn-
ing markers, she walked and slipped on a recently mopped
floor. 242 Or App at 556. After the jury returned a defense
verdict, the plaintiff appealed and assigned error to the fol-
lowing instruction:
“It is the continuing duty of a person to keep and
maintain a reasonable lookout for their * * * own safety.
13
We recognize that Son did not define “relate and contribute” in a way that
readily translates to the premises-liability context. See Gardner, 299 Or App at
290-91 (stating that Son used that term in the medical-malpractice context to
encompass negligent “acts or omissions that undermined the treatment itself,”
and listing examples recognized in Son, including failing to cooperate with
instructions or treatment and giving inaccurate patient history related to the
allegedly deficient care or treatment). Because plaintiff’s argument on appeal
does not implicate the meaning of “relate and contribute,” we express no opinion
whether the requisite relationship or contribution was present in his case.
Cite as 311 Or App 498 (2021) 517
A reasonable lookout means such as would be maintained
by a reasonably prudent person under the same or similar
circumstances.
“In determining this question, you should take into
consideration the extent or degree of danger reasonably
to be expected. A person does not comply with the duty to
keep a reasonable lookout by simply looking and not see-
ing that which is plainly visible and would have been seen
by a reasonably prudent person under the same or similar
circumstances.”
Id. at 561. In Vandeveere-Pratt, we declined the plaintiff’s
invitation to wholly disavow the lookout instruction; we
rejected its use there, however, because, under the circum-
stances in which it had been given, it would have suggested
to the jury “that the plaintiff’s failure to maintain a proper
lookout excuse[d] the defendant from any liability because
the plaintiff assumed the risk of injury.” Id. at 564-65. We
identified “at least two reasons [that] the jury could have
understood the lookout instruction as excusing defendant’s
breach of its duty rather than as explaining defendant’s
allegations that plaintiff was herself negligent.” Id. One,
because the trial court had given the lookout instruction
well after instructing the jury on comparative fault and the
lookout instruction emphasized the plaintiff’s duty, the “jury
could have believed that the instruction as a whole related
to plaintiff’s right to recovery rather than to an examination
of plaintiff’s comparative fault.” Id. at 565 (emphasis added).
Two, the instruction’s second paragraph “suggested that,
because plaintiff did not see the warning markers, plaintiff
was fully at fault for her injury and could not prevail.” Id. As
a result, the trial court had erroneously given the lookout
instruction in that case. Id.In plaintiff’s case, the trial court’s lookout instruc-
tion did not suffer the same infirmities as the instruction in
Vandeveere-Pratt. First, it was given immediately after the
general comparative-fault instruction and, indeed, was cap-
tioned as relating to comparative fault, not solely plaintiff’s
fault. Second, the text of the instruction itself contemplated
a comparison of the parties’ respective degrees of fault, in
that it referred to the jury’s task of “determining and com-
paring negligence” and the extent to “which harm to the
518 Appleyard v. Port of Portland
plaintiff from [the] danger could be avoided by either party.”
(Emphases added.) Accordingly, the trial court did not err
in giving the lookout instruction for any reason identified in
Vandeveere-Pratt.
V. CONCLUSION
Business invitees must always exercise reasonable
care for their own safety when on premises of others. Not-
withstanding that duty, an owner or occupier of premises has
a separate duty to maintain reasonably safe premises for its
invitees, and neither an invitee’s duty of care nor a failure
to exercise it absolves the owner or occupier of its own duty.
However, an invitee’s failure to exercise reasonable care for
his or her own safety may be the basis of a comparative-fault
defense if the invitee’s negligence relates and contributes to
the harm or risk of harm created by the defendant’s neg-
ligence. Under those circumstances, whether the plaintiff
knew or could have known that an alleged dangerous con-
dition was on the premises is not determinative. Plaintiff’s
contention otherwise, which is central to each of his assign-
ments of error, therefore fails. Accordingly, we affirm.
Affirmed.