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Keywords

plaintiffdefendantnegligenceappealtrialwill

plaintiffdefendantappealtrial

Related Cases

Wilk v. Georges, 267 Or. 19, 514 P.2d 877

Facts

The plaintiff visited the defendant's nursery to purchase a Christmas tree and slipped on a bare plank in a walkway that was partially covered with asphalt roofing material. The defendant was aware that the bare planks were slippery when wet and had placed warning signs on the premises. However, the plaintiff and her husband did not see these signs. The plaintiff alleged negligence on the part of the defendant for failing to provide a nonskid surface and for not warning her about the dangerous condition of the walkway.

The defendant operates a garden supply and nursery business in southeast Portland. On December 13, 1969, plaintiff and her husband went to defendant's nursery to purchase a live Christmas tree. Not being satisfied with the trees in front of the building, they were directed to an area in the rear where other trees were located either in the ground or in pots.

Issue

Did the trial court err in instructing the jury that the nursery operator only had a duty to correct or warn of the dangerous condition, rather than taking reasonable steps to obviate the danger?

Rule

A possessor of land is not liable for physical harm caused to invitees by conditions that are known or obvious unless the possessor should anticipate harm despite such knowledge. The possessor has a duty to take reasonable steps to protect invitees from known or obvious dangers if they should anticipate that the dangerous condition will cause harm.

A possessor of land is not liable for physical harm caused to invitees by conditions that are known or obvious unless the possessor should anticipate harm despite such knowledge.

Analysis

The court found that the jury should have been instructed that if they determined the condition was unreasonably dangerous, the nursery operator was obligated to do more than just post warning signs; he had to take reasonable and feasible steps to eliminate the danger. The court noted that the operator was aware of the slippery condition and that the jury could have reasonably concluded that the operator should have anticipated the risk of harm to the plaintiff.

The jury should have been instructed that if they found that the condition that existed was unreasonably dangerous—a condition which cannot be encountered with reasonable safety even if the danger is known and appreciated—the owner of the premises is obligated to do more than post warning signs; he must take reasonable and feasible steps to obviate the danger.

Conclusion

The Supreme Court reversed the judgment of the lower court and remanded the case for a new trial, emphasizing that the jury should have been properly instructed on the operator's duty to mitigate dangerous conditions.

Reversed and remanded.

Who won?

The plaintiff prevailed in the appeal because the Supreme Court found that the jury was not properly instructed on the legal obligations of the nursery operator regarding dangerous conditions.

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