Rex v. Albertson's, Inc.

GRABER, J.

pro tempore

In this personal injury action, plaintiff alleged that she was injured when she fell after slipping in defendant’s grocery store. The trial court granted defendant’s motion for summary judgment. ORCP 47C. Plaintiff appeals, and we affirm.

Plaintiff slipped and fell on a blueberry that was on the tile floor of the produce section of defendant’s store. The berry was 20 to 25 feet away from the display table, where berries were arranged in small, uncovered baskets. Defendant’s produce manager testified that employees swept the produce area about every half hour if needed and that, for “safety reasons,” the store put mats on the floor in front of displays of “loose” produce, such as blueberries. The store used the mats, because small fruit “could fall off, hit the ground.” The manager said that he had swept the area where plaintiff fell about 10 to 15 minutes before the incident and that he did not see the berry then.

Plaintiff conceded that defendant did not place the berry on the floor, that defendant had no actual notice of it, and that she could not prove that the berry had been there for so long that defendant should, in the exercise of reasonable diligence, have discovered and removed it, because the length of time that it had rested there was “unknown and unprovable.” The trial court granted summary judgment, holding that there was no issue of fact as to whether defendant had actual or constructive notice of the presence of the berry on the floor.

Relying on Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), plaintiff argues that the court should not have granted summary judgment, because a

“jury could find that defendant should have taken additional measures to ensure that the fruit would not fall on the floor * * * namely, by wrapping the small fruit in cellophane or other wrapping. * * * The issue is not notice, but the reasonability [sic] of defendant’s conduct in dealing with a known risk.”

We observe at the outset that Fazzolari did not supplant existing case law concerning premises liability. The obligations of a storekeeper to a customer create a “special relationship” that takes the claim out of the general standards of common law negligence. Thompson v. Klimp, 101 Or App 127, 130, 789 P2d 696 (1990); Van Den Bron v. Fred Meyer, Inc., 86 Or App 329, 331 n 1, 738 P2d 1011 (1987); but see Bellikka v. Green, 306 Or 630, 640, 762 P2d 997 (1988); U.S. National Bank of Oregon v. Zellner, 101 Or App 98, 789 P2d 670 (1990).

In Van Den Bron, we stated what a plaintiff must prove to recover against the occupant of business premises in a slip-and-fall case:

“An invitee who is injured by slipping on a foreign substance on the floor of a business property, in order to recover from the occupant having control of the property, must show: (1) that the substance was placed there by the occupant, or (2) that the occupant knew that the substance was there and failed to use reasonable diligence to remove it or (3) that the foreign substance had been there for so long that the occupant should, in the exercise of reasonable diligence, have discovered and removed it.” 86 Or App at 331. (Emphasis in original.)

Concededly, plaintiff fails the test. She asserts, however, that her focus is on the packaging of the produce, rather than on the presence of the berry on the floor. That argument, with which the dissent agrees, is wrong for two reasons.

First, plaintiffs theory would create by indirection a new liability. Under her reasoning, an occupier of premises who places foreign objects where they might fall on the floor is liable, because it should have known of the risk that an object would be on the floor. We decline plaintiffs invitation to add a fourth, “should have known” test to the list of ways that an invitee plaintiff can state a claim against a storekeeper in a slip-and-fall case.

Second, plaintiff ignores the Supreme Court’s rejection of that line of reasoning. In Lee v. Meier & Frank Co., 166 Or 600, 114 P2d 136 (1941), the court held that a customer who had tripped over a pillow in the aisle of a store failed to state a claim against the owner of the store. The plaintiffs theory was

“that (1) the defendant’s pillow rack was not of sufficient size; (2) the rack was not provided with a sufficient guard to prevent pillows from falling into the aisle; and (3) the defendant piled pillows in the rack ‘at a careless and negligent height, manner and arrangement.’ ” 166 Or at 602.

Nonetheless, the storekeeper was not liable, because it had not placed the pillow in the aisle, did not actually know of its presence, and had no constructive notice arising from the pillow’s presence on the floor for a sufficiently long time. 166 Or at 604-05. Lee has not been overruled, and, the dissent’s effort notwithstanding, it is indistinguishable from the present case.

Affirmed.