From the desk of Jeff Eberhard: In general, possessors of land must make their property reasonably safe for their business invitees, and 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. The Court recently had an opportunity to revisit the scope of a store’s duty to protect its customers when a 15-lb post pounder allegedly fell off the shelf and injured the passing customer. The Court held the store was not liable. Read on to find out why.
Claims Pointer: A store owner cannot be found liable on a premises liability theory for displaying merchandise on shelving unless the particular manner of display created an unreasonable risk to customers. Additionally, the doctrine of res ipsa loquitur, which assumes negligence when none can be shown in the facts, does not apply. It only applies if the party alleging misconduct can prove that the kind of harm that occurred more probably than not would not have occurred in the absence of negligence on the part of the defendant.
Hagler v. Coastal Farm Holdings, Inc., 354 Or. 132, 309 P.3d 1073 (2013)
Keri Hagler and her friends were walking around a hardware store when a 15-lb post pounder fell off a shelf and injured her foot. She sued the store (Defendant), arguing it negligently created an unsafe display of post pounders that it knew or should have known would create a hazard. Neither Hagler nor her friends saw the post pounder fall. A photograph of the display was taken about five to ten minutes after the incident, and both parties agreed it accurately represented the condition of the display. The assistant store manager testified about the store’s safety procedures, stating that employees walked the aisles each morning, regularly throughout the day, and again each evening to prevent safety hazards. Defendant moved for summary judgment, which the trial court granted. Hagler appealed to the Court of Appeals, which affirmed the trial court’s decision. Hagler then appealed to the Oregon Supreme Court.
On appeal to the Oregon Supreme Court, Hagler argued the display created an unreasonable risk of harm, or alternatively the doctrine of res ipsa loquitur should apply because the circumstantial evidence would permit a jury to infer both causation and negligence on the part of Defendant. To support her theory that Defendant created an unreasonable risk of harm by placing the 15-lb post pounder on the top self, Hagler submitted the affidavit of her friend, Mark Navin. However, the Navin Affidavit expressed only his non-expert opinion and speculation about the condition of the display and the risk it posed, and Navin’s factual description of the display was plainly at odds with the photograph that Hagler had agreed was an accurate depiction of the shelving at the time of the accident. Hagler failed to provide any other evidence to support her claims that the display was unreasonably dangerous or that the doctrine of res ipsa loquitur should apply.
The Court disregarded the Navin Affidavit and disagreed with Hagler because her available evidence did not support a claim of negligence as to the maintenance of the display. The Court emphasized that a store cannot be found liable on a premises liability theory for product displays “unless it can be shown that the particular manner of display created an unreasonable risk to customers” and Hagler failed to produce such evidence. With regard to the claim for res ipsa loquitur, the Court noted that proof of exclusive control of the harm-causing instrumentality is not required, but that Hagler was required to supply evidence that her injury was more likely than not caused by the negligence of the Defendant. In this case, the Court noted that Hagler failed to produce any such evidence and that the post pounder that fell and injured her could have fallen because of the action of another customer. Thus, the Oregon Supreme Court affirmed summary judgment for Defendant.
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