Cole v. Multnomah County ( 1979 )

LEE, J.,

specially concurring.

I disagree with that portion of the majority opinion which states:

"* * * The county manual was admissible as some evidence of negligence even though it had not been plead. See, Landolt v. Flame, Inc., supra. ”

In Landolt v. Flame, Inc., 261 OR 243, 249, 492 P2d 785 (1972), the plaintiff alleged "violation of Section 3303(b) of the Multnomah County Building Code” so that case does not appear to me to support the proposition for which it is cited.

Furthermore, as a matter of fundamental fairness it is my opinion that any provision of the manual, on which a party relies, should be plead to frame the issue and provide notice to all concerned.

In the instant case, the plaintiff’s offer of proof, during trial, of the portion of the manual set forth in footnote 1 of the majority opinion constituted an intolerable surprise tactic — it should have been plead as was done in Landolt.

I concur with the remainder of the majority opinion.