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Fitzwater v. Sunset Empire Inc.

October 27, 1972

FITZWATER, APPELLANT,
v.
SUNSET EMPIRE, INC., RESPONDENT



Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge.

Jeanyse R. Snow, Astoria, argued the cause for appellant. With her on the briefs were Harold A. Snow, and MacDonald, Dean, McCallister & Snow, Astoria.

Andrew W. Fink, Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Howell, Justice. McAllister, Denecke, Holman and Bryson, Justices. O'Connell, Chief Justice, dissenting.

Howell

This is an action for personal injuries suffered by plaintiff when he slipped and fell on ice on the sidewalk in front of defendant's restaurant in the city of Astoria.

Plaintiff filed an original and three amended complaints. The defendant demurred to the first amended complaint for failure to state a cause of action. The demurrer was allowed. The plaintiff filed a second amended complaint, and the defendant moved

to strike it on the ground that it was substantially the same as the amended complaint. The parties stipulated that plaintiff could file a third amended complaint and that defendant's previous motion to strike would apply to the third amended complaint. The third amended complaint was stricken on the grounds of no material change. A judgment was entered against plaintiff and plaintiff appeals.

The parties have treated the motion to strike the third amended complaint as if it were a demurrer for failure to state a cause of action. Plaintiff states that the issue is "plaintiff's ability to state a cause of action under the facts."

We shall approach the issues on the same basis -- whether plaintiff's third amended complaint stated a cause of action.

Plaintiff's complaint contained two causes of action. The first cause of action was based on the theory of negligence. Plaintiff alleged that defendant operated a restaurant and

"[t]hat on and before December 28, 1968, an accumulation of snow and ice formed on the sidewalk bordering the front of defendant's premises. That on or about December 29, 1968 at approximately 6:00 o'clock p.m., plaintiff, after having been a customer in defendant's premises, and at the invitation of defendant's manager, and for the benefit of defendant, accompanied defendant's manager to the exterior sidewalk adjoining defendant's premises, and while walking on said sidewalk in front of and immediately adjacent to said premises, slipped and fell on an accumulation of ice and snow on said sidewalk, resulting in injuries to the plaintiff as hereinafter set forth."

Plaintiff alleged negligence in allowing the ice and snow to accumulate, failing to remove same, failing

to eliminate the slippery condition, and ...


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