Hagler v. Coastal Farm Holdings, Inc. , 354 Or. 132 ( 2013 )

132 September 12, 2013 No. 40
IN THE SUPREME COURT OF THE
STATE OF OREGON
Keri HAGLER,
Petitioner on Review,
v.
COASTAL FARM HOLDINGS, INC.,
a Delaware corporation,
Respondent on Review.
(CC 0807-10811; CA A142965; SC S059895)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 5, 2012; resubmitted
January 7, 2013.
Thomas C. Patton, Portland, argued the cause and filed
the brief for petitioner on review.
Janet M. Schroer of Hart Wagner, LLP, Portland, argued
the cause and filed the brief for respondent on review. With
her on the brief was Marjorie A. Speirs.
Travis Eiva of The Corson & Johnson Law Firm, Eugene,
filed the brief for amicus curiae Oregon Trial Lawyers
Association.
LANDAU, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Plaintiff filed suit after sustaining injuries from merchandise falling in
defendant’s hardware store. Defendant moved for summary judgment, arguing
that plaintiff failed to offer any evidence to suggest that it knew or should have
known that the merchandise was shelved in a dangerous manner. The trial
court granted summary judgment, concluding that plaintiff failed to meet her
evidentiary burden and was not entitled to utilize the doctrine of res ipsa loquitur.
Held: Summary judgment appropriate, because plaintiff failed to offer evidence
of defendant’s negligence.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
______________
*  Appeal from Multnomah County Circuit Court, Eric L. Dahlin, Judge pro
tempore. 244 Or App 675, 260 P3d 764 (2011).
Cite as 354 Or 132 (2013) 133
LANDAU, J.
In this personal injury action, plaintiff alleges that
she was injured as she walked down the aisle of defendant’s
store and a heavy item of merchandise fell on her foot. She
did not see the item fall, nor did she see how it was shelved
before it fell. She nevertheless contends that the store was
negligent, because the item would not have fallen had it been
properly shelved. The trial court entered summary judgment
for defendant, concluding that plaintiff had produced no evi-
dence that defendant knew or reasonably should have known
of any danger in the shelving of its product. The Court of
Appeals affirmed. For the reasons that follow, we also affirm.
The relevant facts are not in dispute. Plaintiff and
three friends shopped in defendant’s store. They walked
down an aisle where post pounders were shelved. A post
pounder is a roughly 15-pound metal tool consisting of a long
steel pipe that is closed at one end and has two handles, one
welded to each side of the pipe. The tool is used for driving
fence posts into the ground. As plaintiff walked down the
aisle, she felt a sudden pain in her foot and heard the clatter
of a post pounder as it hit the floor. Neither plaintiff nor her
friends observed the post pounder fall, how that particular
post pounder had been shelved before the fall, or which shelf
it had fallen from.
Defendant’s assistant store manager, Dutton, took
a photograph of the shelved post pounders approximately
five to 10 minutes after the accident. The photograph shows
post pounders set on three levels of shelving, at heights of
about eight inches, two feet, and three and a half to four
feet, respectively. The first and lowest level contains a row
of five large post pounders arranged flat on the shelf and
perpendicular to the shelf wall so that the ends point out
from the shelf. The post pounders are all slightly longer
than the depth of the shelf, so they protrude a few inches
past the edge. Further down the first shelf sit about eight
smaller post pounders oriented the same way but stacked
two high. The second shelf contains five post pounders laid
flat and perpendicular to the wall, with one stacked on top
of two others. On the third and highest shelf, additional
134 Hagler v. Coastal Farm Holdings, Inc.
post pounders lie flat but parallel to the wall, guarded at the
shelf front by a protective wire grate.
Plaintiff initiated this action for negligence against
defendant. Plaintiff alleged that defendant breached its duty
of care that it owed to her as a business invitee in four partic-
ulars:
“a.  In negligently hiring, training, [and] supervising
employees and operations at the store, so as to prevent the
improper placement of post pounders;
“b.  In failing to properly place the post pounder, creat-
ing an unreasonably unsafe condition;
“c.  In failing to properly warn customers of the danger-
ous condition created by improperly placed post pounders;
and,
“d.  In placing a post pounder on a high shelf such that
[defendant] knew, or should have known in the exercise of
reasonable care, that it constituted a hazard.”
During discovery, defendant’s assistant store man-
ager, Dutton, explained in his deposition that the photo that
he had taken shortly after the accident accurately represented
the regular condition of the post pounder display. Dutton also
explained that, although the store had adopted no safety pro-
cedures specific to the display of post pounders, it did have
general safety policies, including walking the aisles each
morning and periodically throughout the day to check for
safety hazards, conducting monthly safety meetings, and dis-
cussing emerging safety issues as needed in its weekly adver-
tising meetings.
Defendant’s store manager also explained in his depo-
sition that the store had a total of 15 safety procedures and
policies:
“We walked the store in the mornings and evenings and
that’s every aisle. Anything that needed to be addressed
was addressed. If it was something that was out of the
norm to where it needed to be put on the shelf, it was done
right then and there. If not, then it was put on the work list
and we would follow up in the mornings. Normally a couple
of hours afterwards. We did short work lists every morning
and every evening.
Cite as 354 Or 132 (2013) 135
“* * * * *
“We had specific safety meetings once a month with the
safety committee. They write up minutes [at] that. And
during mornings, we would have a quick meeting with
whoever opened the store and we would address—especially
at this location because it was a newer location for us at the
time, and we would address anything needed in the morning
times, usually. And then we had ad meetings about once a
week that the entire store met with in the evening times,
most of the time. And we’d go over that and it would [be]
an open forum for anybody to discuss anything like that.”
The store manager further explained that all employees
were trained to perform “basic housecleaning” as they walked
the aisles, including checking for merchandise sticking out
from the shelves in an unsafe manner. They were instructed
to reshelve any such items. The manager stated that he could
not recall whether the subject of post pounder shelving had
ever come up at any of those meetings. He also said that,
in his 13 years of working for defendant, he did not recall
another post pounder ever falling off a shelf.
Plaintiff, in her own deposition, testified that she
did not see the post pounder fall. She said that she did not
know from which shelf it fell. When asked how the accident
happened, she replied that, “[m]aybe there was somebody on
the other side of the wall, and it rattled it. Honestly, I’m not
really sure. They were sitting kind of weird, I guess.” She
said that, just before the post pounder fell, though, she saw,
“out of the corner of [her] eye,” the post pounders lying on
the shelves. She agreed that the photo that Dutton took
accurately portrayed how the post pounders were stacked
on those shelves.
Defendant moved for summary judgment. It argued
that plaintiff, to prevail, must offer evidence that defendant
either knew or should have known that the post pounder
that fell on plaintiff’s foot had been shelved in a dangerous
manner. In this case, defendant argued, plaintiff can offer
no such evidence. Plaintiff’s response was two-fold: First,
she argued that her testimony that the post pounders were
“sitting kind of weird, I guess,” coupled with the photograph
of the shelves that Dutton took shortly after the accident,
136 Hagler v. Coastal Farm Holdings, Inc.
sufficed to “create a question of fact as to whether the display
was unsafe.” Second, in the alternative, plaintiff asked for a
continuance to conduct further discovery.
At the hearing on defendant’s motion, the trial court
expressed concern that plaintiff had not offered any evidence
that defendant knew or should have known that the post
pounder that injured her had been placed negligently on
the shelving. The court noted that the only evidence in the
summary judgment record consisted of plaintiff’s testimony
and the photograph that Dutton had taken. “It appears,”
the court explained, “that simply is not enough.” The court
noted that, even assuming for the sake of argument that
the photograph could be viewed as illustrating dangerously
placed post-pounders,
“there is still a question of who is responsible for placing
them in the place where they are. And based on the record
in front of me, I think it’s all speculation about who was
responsible. You know, it’s possible that management or the
employees stacked them that way. It’s possible that another
customer had walked by, picked a few of these up, put them
back in a haphazard manner or what not. And they are—
there just simply is not anything in the record that would
tell me who is responsible for that.”
In response to the trial court’s remarks, plaintiff
argued that she actually did not need to show how the post
pounder was shelved or how it fell. According to plaintiff, “I
think, you know, it’s sort of leaning towards res ipsa loquitur.
The way that they are stacked is inherently unsafe. I mean,
the way they are stacked speaks for themselves. They are
inherently dangerously stacked.”
The trial court rejoined that it was difficult to under-
stand how the doctrine of res ipsa loquitur applied, given
that there was no evidence that defendant controlled how the
post pounder was stacked on the shelf:
“Here, you know, you never know who the person was who
came by and stacked it this way. It could have been a store
employee or it could have been a customer—could have been
a customer, there a couple of minutes before your client
arrived there. And, I mean, that I think takes us out of the
res ipsa ball park, because we still have to have—we still
Cite as 354 Or 132 (2013) 137
have to have a showing that the defendant was responsible
for stacking it this way.”
Plaintiff responded that, “[p]erhaps I should not be bringing
up—raising the [spector] of res ipsa, but I do think that
that is—you know, essentially what my argument is that
they are the ones that chose to—chose how to display this.”
Defendant asserted that “this whole res ipsa is exactly what
he [plaintiff’s counsel] is trying to do, and it’s exactly what
he cannot try to do for the reason that you have identified.”
The trial court ultimately ruled that, although it was
inclined to grant defendant’s summary judgment motion, it
would instead postpone deciding the motion and give plain-
tiff time to conduct additional discovery.
Plaintiff conducted additional discovery and then
submitted a supplemental response to defendant’s summary
judgment motion. In that supplemental response, plaintiff
offered an affidavit of Mark Navin, one of the three friends who
accompanied plaintiff to the store. Navin’s affidavit stated
that,
“[i]n looking at the display of post-hammers, I was surprised
that all of them had not fallen. It appeared to me that they
had stacked as many of them as possible in a very crowded
space. There were three shelves of them, at heights of about
eight inches, two feet, and three and a half to four feet.
The post-hammers were stacked two and three deep in a
disorderly way, many of them sticking out; it was obvious
to me that it was a very risky and dangerous way to display
post-hammers.”
Defendant replied that Navin’s testimony added no new facts
to the record, only his speculation and opinion about the way
the post pounders had been shelved.
The trial court granted defendant’s summary judg-
ment motion. The court concluded that plaintiff had provided
no evidence of how the post pounder had been shelved or
how it fell:
“there’s still an issue of, well, if this post pounder that fell,
came from the third shelf, the question is, well, who put it
there? It could have been another customer that just came
by and did it. And it could have been the plaintiff, herself,
138 Hagler v. Coastal Farm Holdings, Inc.
that actually picked it up and dropped it. Or it could have
been a store employee who in his regular duties stacked
it that way. All of those were equally possible. And there’s
nothing that gets us over the hurdle that would get you to
a jury.”
Plaintiff appealed, arguing that the trial court erred
in requiring evidence that defendant knew or should have
known that a particular post pounder had fallen into the
aisle. According to plaintiff, defendant should be held liable
for generally displaying the post pounders in a dangerous
manner, regardless of how the particular post pounder that
injured her had fallen from the shelf. In that regard, plaintiff
argued, Navin’s affidavit was dispositive. In any event, plain-
tiff argued, the doctrine of res ipsa loquitur applies, relieving
her of any obligation to prove how the particular post pounder
fell into the aisle.
Defendant argued that a store owner is not liable
for injuries from a falling object unless there is evidence
that the owner knew or should have known that the object
had fallen, and plaintiff offered no such evidence in this
case. Defendant asserted that, even if plaintiff were correct
that liability could arise out of displaying post pounders in
a dangerous manner, there was no evidence of dangerous
display in this case. Defendant relied on the photograph of
the shelves, which all parties agreed to be accurate, and
which shows the post pounders lying flat on the shelves in a
manner that—as a matter of Newtonian physics—precluded
them from falling without some human assistance. As for
plaintiff’s invocation of res ipsa loquitur, defendant argued
first that the issue was not preserved and second that, in
any event, the doctrine does not apply in the absence of evi-
dence that the accident more likely than not would not have
occurred without negligence on the part of defendant.
The Court of Appeals affirmed. Hagler v. Coastal
Farm Holdings, Inc., 244 Or App 675, 260 P3d 764 (2011).
Relying on this court’s decision in Lee v. Meier & Frank Co.,
166 Or 600, 114 P2d 136 (1941), the court first concluded
that a store is ordinarily not liable for injuries from fallen
merchandise in the absence of evidence that the store knew
or should have known that the merchandise had fallen to the
Cite as 354 Or 132 (2013) 139
floor. Id. at 682. The court found no such evidence in this case.
Id. In response to plaintiff’s contention that, irrespective of
whether defendant knew of should have known whether a
particular post pounder had fallen into the aisle, the court
held that there is no evidence of a dangerous display. Id.
at 683. The court discounted Navin’s affidavit as his own
speculation about the dangerous nature of the display. Id.
It also noted that his opinion was based on a physical
description of the display that was plainly contradicted by
the photograph that all parties agreed accurately depicted
the condition of the shelves at the time of the accident. Id.
The court rejected plaintiff’s reliance on res ipsa loquitur. It
explained that the rule does not apply to cases in which harm
is caused by merchandise that is capable of being handled
by customers as well as the owner. “In this case,” the court
explained, “it cannot be inferred that the negligence was
attributable to defendant, because customer ability to access
the merchandise rendered defendant’s control over the post
pounders nonexclusive.” Id. at 687.
On review, plaintiff first argues that the Court of
Appeals erred in relying on Lee, which she insists is distin-
guishable, because it involved an item of merchandise—a
fallen pillow—that is different from the 15-pound post
pounder at issue in this case. According to plaintiff, she
should not be required to show that defendant knew or
should have known that a particular post pounder fell into
the aisle; rather, it should suffice if she produces evidence
that defendant displayed the merchandise in an unsafe
manner. In this case, she argues, the evidence shows that
defendant displayed “stacks of heavy industrial merchandise
on elevated shelving,” which Navin’s affidavit characterized
as dangerous. That, she insists, was adequate to create a
jury question about whether the display was dangerous.
Plaintiff next argues that the Court of Appeals misapplied
the doctrine of res ipsa loquitur when the court held that it
applies only if defendant had exclusive control of the post
pounders. According to plaintiff, the manner in which the
post pounders were displayed was, in fact, subject to defen-
dant’s exclusive control.
Defendant argues that the Court of Appeals correctly
relied on Lee, which defendant says is controlling. Plaintiff’s
140 Hagler v. Coastal Farm Holdings, Inc.
reliance on res ipsa loquitur, defendant contends, is both
unpreserved and unavailing. Defendant relies on what it
characterizes as plaintiff’s concession to the trial court—
that, “[p]erhaps I should not be * * * raising the specter of res
ipsa”—in asserting that the doctrine was not adequately
preserved. As for why the doctrine is unavailing, defendant
contends that the rule applies only when evidence makes
it more probable than not that the accident would not have
occurred but for the negligence of the defendant. In this case,
defendant contends, there is simply no such evidence.
Summary judgment is appropriate if there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. ORCP 47 C. That standard is
met when, viewing the facts in the light most favorable to the
nonmoving party, no reasonable juror could return a verdict
for that party. Id.; Robinson v. Lamb’s Wilsonville Thriftway,
332 Or 453, 455, 31 P3d 421 (2001). The nonmoving party—
in this case, plaintiff—has the burden of producing evidence
on any issue raised in the motion as to which it would have
the burden of persuasion at trial. ORCP 47 C. The question
in this case is whether plaintiff met that burden.
As we have noted, plaintiff alleges that defendant was
negligent in displaying its post pounders in an unreasonably
dangerous manner. Under Oregon negligence law,
“unless the parties invoke a status, a relationship, or a par-
ticular standard of conduct that creates, defines, or limits
the defendant’s duty, the issue of liability for harm actually
resulting from defendant’s conduct properly depends on
whether that conduct unreasonably created a foreseeable
risk to a protected interest of the kind of harm that befell
the plaintiff.”
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734
P2d 1326 (1987). In this case, the parties do invoke such a
particular standard of conduct that applies to owners of land
who invite others onto the premises. Garrison v. Deschutes
County, 334 Or 264, 272, 48 P3d 807 (2002) (business invitee
rule a “special duty”).
In general, possessors of land must “make their prop-
erty reasonably safe for their invitees.” Hughes v. Wilson,
Cite as 354 Or 132 (2013) 141
345 Or 491, 497, 199 P3d 305 (2008). That duty requires
possessors to exercise due care to discover conditions on
the premises that create an unreasonable risk of harm to
invitees or warn them of the risk so as to enable them to
avoid the harm. Woolston v. Wells, 297 Or 548, 557-58, 687
P2d 144 (1984). The role of the possessor, however, “is not
that of an insurer against accidents upon the premises even
as to persons whom they have invited to enter.” Starberg v.
Olbekson, 169 Or 369, 373, 129 P2d 62 (1942). And the mere
fact that an invitee was injured on the premises does not, by
itself, give rise to an inference of negligence. Id. at 373-74.
This court has applied those general principles in a
number of cases involving injuries resulting from items or
substances that fell to the floor of business premises. The
cases consistently hold that the business owner’s duty to
invitees applies to “dangers of which he knows or in the exer-
cise or reasonable care should have known.” Mickel v. Haines
Enterprises, Inc., 240 Or 369, 371-72, 400 P2d 518 (1965).
For example, in Diller v. Safeway Stores, Inc., 274 Or
735, 548 P2d 1304 (1976), the plaintiff was injured when he
slipped on ice and water on the floor of the defendant’s store
near a section containing lettuce that was packed in ice. He
sued the store for negligence. The evidence showed that the
store had not swept the floor for an hour before the accident.
Id. at 737. There was also evidence that the store knew that
the manner in which it displayed the lettuce sometimes
resulted in ice and water getting on the floor and making the
floor slippery. Id. The jury returned a verdict for the plain-
tiff. Id. The trial court, however, granted a judgment for
the defendant notwithstanding the verdict. Id. This court
affirmed, explaining:
“In this case there was no evidence that at any time
prior to the accident any of [the] defendant’s employees
actually knew that ice and water had been spilled on the
floor. Moreover, the fact that the store’s log book showed
that the floor had not been swept for over an hour before the
accident does not raise an inference that [the] defendant
should have known the water or ice was there and should
have removed it in the exercise of reasonable diligence. It is
just as reasonable to assume that the substance was spilled
142 Hagler v. Coastal Farm Holdings, Inc.
immediately before the accident as it is to assume it was
spilled substantially earlier.”
Id. at 738; see also Weiskopf v. Safeway Stores, 271 Or 630,
631, 533 P2d 347 (1975) (liability of market for injury result-
ing from customer slipping on substance left on a floor mat
turned on whether “the substance was on the mat a sufficient
length of time that defendant should have known of its
presence and removed it in the exercise of reasonable care”).
Another example—arguably closer in point to this
case—is Lee. In that case, Katie Anderson visited the Meier
& Frank department store. 166 Or at 602. She walked by
a display rack of pillows that had been constructed around
one of the pillars that supported the floor above. The base of
the rack was approximately one foot above the floor. Around
it was a protective railing of eight or nine inches in height.
Displayed in the rack was a pile of pillows, stacked between
four and five feet high. Id. at 602-03. A witness testified that
“the pillows on that rack were piled unusually high.” Id.
at 602. Another witness observed customers handling the
pillows that had been stacked above the railing and that,
whenever a customer would reach for a pillow, others would be
dislodged and fall to the floor. Id. at 607-08. When Anderson
walked by the display, one of the pillows had fallen to the
floor, and she stumbled over it. Id. at 603. No one, however,
had seen that particular pillow before the fall. Id.
Anderson later died of her injuries, and her estate
initiated an action for negligence against Meier & Frank. Id.
at 602. The case was tried to a jury, but the trial court
granted Meier & Frank’s motion for an involuntary nonsuit
at the close of the evidence. Id. at 602. On appeal, the plain-
tiff argued that the fact that no one had seen the pillow fall
into the aisle or knew how long it had been there was not
dispositive. As the plaintiff phrased it, “[t]he real issue in
this case was whether or not the pillow display, as so main-
tained by the defendant itself, was dangerous and unsafe.”
Id. at 608-09.
This court affirmed the dismissal of the plaintiff’s
negligence claim. Id. at 602. The court began by explaining
that the liability of a business owner for injuries to patrons
from objects on the floor generally depends on evidence that
Cite as 354 Or 132 (2013) 143
the owner knew or should have known about the fallen object.
Id. at 604-05. Quoting from the Restatement of Torts § 343,
the court stated that, “  ‘[a] possessor of land is subject to
liability for bodily harm caused to business visitors by a
natural or artificial condition thereon if, but only if, he * * *
knows, or by the exercise of reasonable care could discover,
the condition which, if known to him, he should realize as
involving an unreasonable risk.’ ” 166 Or at 605. Turning to
the facts of the case before it, the court observed that “there
is no evidence in the record which shows that the defendant
had any knowledge of the pillow’s presence in the aisle before
Mrs. Anderson was tripped up by it.” Id.
Turning to the plaintiff’s argument that the pillow
display itself was dangerous, the court explained:
“It is evident *  * that [plaintiff] believes that a pile of
*
pillows arranged in such a manner that an upper pillow may
fall if a lower one is removed renders the pile dangerous.
*  * If a pile of pillows four or five feet high, resting upon
*
a firm base and leaning in the rear against a solid post,
is an object of danger, we shudder to think of the danger
that lurks in every self-service grocery store with its rows
of canned goods piled high. We recall that the base of the
defendant’s rack was surrounded by a guard rail several
inches high. It is a matter of common observation that every
store, in order to conserve space, arranges its merchandise
in piles. The utility of the arrangement is great and the pos-
sibility of harm to anyone is negligible. Such displays and
arrangements are commonly regarded as free of danger. A
pillow, fluffy and light in weight as it is, is almost harmless
compared with the goods upon the counters, tables and dis-
play racks of grocery, crockery, variety and hardware stores.
Everyone knows that when objects are piled on top of one
another the upper one may tumble down if jarred, unless a
means can be found of overcoming the law of gravity. We can-
not conceive how such an arrangement could support a
charge of negligence unless the merchant permitted objects
to remain in the common passageways after he had received
timely notice of their presence there, or failed to make visits
at reasonable intervals to the place so as to acquaint him-
self with its conditions.”
Id. at 609-10.
144 Hagler v. Coastal Farm Holdings, Inc.
Lee thus represents an application of the general
rule that a landowner must exercise due care to discover
conditions on the premises that create an unreasonable risk
of harm to invitees and to warn invitees of those risks. There
was, the court said, no evidence that Meier & Frank knew
or should have known that the pillow over which Anderson
had tripped had fallen. 166 Or at 605. Moreover, there was
no evidence that Meier & Frank knew that its display of
pillows—which the court characterized as “light in weight”
and “almost harmless,” resting on “a firm base and leaning in
the rear against a solid post”—posed a danger to customers.
Id. at 609-10.
The court’s explanation for its rejection of the plain-
tiff’s argument about the dangerous nature of the display
went further than that, however. It suggested that, because of
the “utility” of arranging merchandise—including “grocery,
crockery, variety and hardware stores”—and the small likeli-
hood of any harm to customers, the court “could not conceive
how such an arrangement could support a charge of neg-
ligence unless the merchant permitted objects to remain in
the common passageways” after receiving notice that the
objects had fallen. Id. at 610.
That suggests that the manner in which a merchant
shelves merchandise could never support a claim of negligence
in the absence of evidence that the merchant knew that mer-
chandise had actually fallen into common passageways. And
that suggestion is incorrect. The likelihood that a particular
display will cause harm to others will depend on the cir-
cumstances of each case—among them, the nature of the
goods and the manner in which they are shelved. To the
extent that Lee suggests a hard-and-fast rule that there
can be no claim for negligent display of merchandise, the
suggestion conflicts with the general rule of landowner
liability that we have described, and we disavow it.
With the foregoing principles in mind, we return to
the record in this case and whether it creates a genuine issue
of material fact about whether defendant knew or should
have known that the manner in which it shelved its post
pounders posed a danger to customers. At the outset, we
observe that there is a complete absence of evidence that the
Cite as 354 Or 132 (2013) 145
defendant knew that the manner in which that post pounder
had been shelved posed a danger to any customer. There was,
in fact, no evidence that the particular post pounder had
been shelved dangerously. At best, there is evidence in the
form of the photograph of the shelving taken some minutes
after the incident, which plaintiff acknowledged accurately
portrayed what she saw out of the corner of her eye before
the post pounder fell on her foot. But, as we have noted, that
photograph shows all of the post pounders lying flat on
the shelves. Those on the second shelf were lying flat and
perpendicular to the wall, with one stacked on top of two
others. Those on the third shelf were also lying flat, but
parallel to the wall, guarded at the shelf front by a pro-
tective wire grate. Plaintiff does not explain, and we do not
understand, how—given the length and weight of the post
pounders, and the fact that their handles prevented them from
rolling—the photograph demonstrates shelving that posed
an unreasonable risk to customers.
Plaintiff insists that she did provide evidence that
defendant should have known that the post pounder was at
risk of falling, based on the affidavit of Navin, who testified
that he had observed the post pounder display and was “sur-
prised that all of them had not fallen,” because of the “very
risky and dangerous way” that defendant displayed its mer-
chandise. We are not persuaded.
Navin’s affidavit expressed only his nonexpert
opinion and speculation about the condition of the display
and the risk of harm that it posed. See Simpson v. Hillman,
163 Or 357, 363, 97 P2d 527 (1940) (It is “fundamental that
negligence cannot be predicated upon mere conjecture, guess-
work, or speculation.”). Moreover, to the extent that his affi-
davit could be taken as a factual description of the display,
that description is plainly at odds with the photograph that
plaintiff agreed was an accurate depiction of the shelving at
the time of the accident.
Plaintiff argues that, even if she failed to offer evi-
dence sufficient to support an inference that defendant was
negligent, the doctrine of res ipsa loquitur applies and ren-
ders the absence of such evidence immaterial. According to
plaintiff, the trial court and the Court of Appeals erred in
146 Hagler v. Coastal Farm Holdings, Inc.
requiring evidence of defendant’s exclusive control of the
harm-causing instrumentality.
Res ipsa loquitur is a Latin expression—meaning “the
thing speaks for itself”—that refers to a rule of circumstantial
evidence. McKee Electric Co. v. Carson Oil Co., 301 Or 339,
348, 723 P2d 288 (1986). In appropriate cases, it allows a
factfinder to infer negligence on the part of the defendant
if an “accident is of a kind which ordinarily would not have
occurred in the absence of the defendant’s negligence, even
though it is impossible to determine the specific way in
which the defendant was negligent.” Watzig v. Tobin, 292 Or
645, 648, 642 P2d 651 (1982).
A party invoking the doctrine is not required to
establish that the instrumentality that caused the harm was
in the exclusive control of the defendant. Pattle v. Wildish
Construction Co., 270 Or 792, 797, 529 P2d 924 (1974). But
the party must establish that the harm “more probably than
not would not have occurred in the absence of negligence on
the part of the defendant.” McKee Elec. Co., 301 Or at 353
(quoting Watzig, 292 Or at 649). That determination cannot
be based on speculation and conjecture and cannot be drawn
from probabilities that are evenly balanced. Watzig, 292 Or
at 652 n 6.
In this case, defendant contends that plaintiff failed
to preserve an assertion that res ipsa loquitur applies. We
conclude that, although plaintiff did not invoke the doctrine
with the sort of clarity that might be desired, she did so
adequately to serve the essential purposes of the preservation
rule. As we have noted, at the hearing on defendant’s sum-
mary judgment motion, plaintiff did explain to the trial
court that her argument was “sort of leaning toward res ipsa
loquitur.” The trial court proceeded to explain why it thought
that the doctrine did not apply. And defendant expressed
agreement with the trial court, asserting that “this whole
res ipsa is exactly what he is trying to do, and it’s exactly what
he cannot try to do for the reason that you have identified.”
It thus appears that all parties were fairly apprised of the
argument and given an opportunity to respond to it, and the
trial court was given the opportunity to address the matter
as well. That is all that the rule of preservation requires.
Cite as 354 Or 132 (2013) 147
See State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011)
(preservation rule exists to ensure fairness to parties and
to provide the trial court an opportunity to avoid ruling in
error).
Turning to the merits of the issue, as we have noted,
proof of exclusive control of the harm-causing instrumentality
is not required, as we have noted. Nevertheless, plaintiff
is required to supply evidence that plaintiff’s injury is the
sort that, more likely than not, was caused by negligence on
the part of defendant. And, in this case, plaintiff did not
supply that evidence. As the trial court correctly observed,
there is no basis for determining that the injury in this case
occurred because defendant shelved the post pounders in an
unsafe manner or failed to discover that the post pounders
had been stacked by someone else in an unsafe manner. The
post pounder that fell and injured plaintiff could have fallen
because of the action of another customer. On this record, it
is not possible to say that the manner in which defendant
shelved the post pounders is the more likely explanation
for plaintiff’s injury. Accordingly, res ipsa loquitur is inap-
plicable.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.