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Scott v. Mercer Steel Co.

November 16, 1972

SCOTT, RESPONDENT,
v.
MERCER STEEL CO. ET AL, DEFENDANTS, ALLEN C. EDWARDS REALTY CO., APPELLANT



Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge.

Austin W. Crowe, Jr., Portland, argued the cause for appellant. With him on the briefs were Cosgrave & Kester, Portland.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were McColloch, Dezendorf, Spears & Lubersky and Robert E. Maloney, Jr., Portland.

In Banc. Tongue, J.

Tongue

This is an action for damages for personal injuries sustained in walking through a glass panel adjacent to a glass door in defendant's realty office. Defendant appeals from a verdict and judgment in favor of plaintiff.

Defendant's principal assignments of error arise from the denial of motions for an involuntary nonsuit and for a directed verdict. It thus becomes necessary to review the evidence, bearing in mind the rule that in such cases the evidence must be viewed in the light

most favorable to the plaintiff and that plaintiff is entitled to the benefit of every reasonable inference which may be drawn from the evidence. Gordon Creek Tree Farms v. Layne et al, 230 Or 204, 218, 358 P2d 1062, 368 P2d 737 (1962).

Defendant is a corporation engaged in the realty business. One of its offices is located in the garage area of one of the model homes in the Somerset West residential subdivision in Washington county in space leased by defendant from the owner of that building. The office was in a room with a desk and tripods used for the display of maps of the area. The front of the office, originally designed as the front of a double garage, had been remodeled so as to include two large glass panels in the space originally designed for one garage door and a glass door, as well as an adjoining glass panel, in the space originally designed for the other garage door. The three glass panels and the glass door were all approximately the same height, but there was a low "ledge" of two or three inches at the bottom of the glass panels.

Plaintiff had purchased a house from defendant in Somerset West two months prior to the accident and had been in the office "quite a few times." Her last previous visit, however, had been about a month and a half before the accident. According to her testimony (although not without some contradiction by prior statements on deposition), on all of her prior visits the glass door to the office had been closed and had to be opened by her, while on the day of the accident it had been "propped" open. Also, at the time of her prior visits, a desk had been located in the interior of the office in front of the glass panel adjacent to the door, and the weather had been cloudy and rainy.

In addition, at the time of her prior visits plaintiff had left the office from a position near the desk and "in front" of the door and had never been in the "back" of the room before so as to have an occasion to leave the room starting from a position "at an angle" with the door.

On July 17, 1969, the day of the accident, plaintiff went to defendant's office to report that her hot water heater was leaking. According to her testimony, it was a beautifully sunny day and the office door had been "propped" in an open position, "swinging to the outside." Upon entering the open door she found no one in the office. She waited for a time, looking at the maps exhibited of the area and diagrams of the schools which were scheduled to be built.

Plaintiff then turned to leave and saw her mother-in-law and child in her car parked in the driveway outside. According to her testimony, the glass panel was clear and was without drapes or "markings" of any kind. She could see the open door (in its "propped out" position) adjacent to the glass panel and assumed that it was the open area of the doorway.

She was then standing six or seven feet from the doorway, apparently at some "angle" from the doorway, but directly in front of the glass panel. From that position she started toward what she believed to be the open doorway, but what was actually the adjacent glass panel. That panel, made of 3/16 inch crystal glass, rather than tempered or safety glass, shattered on impact, causing severe injuries to plaintiff's leg.

Plaintiff's outlook through the clear glass panel adjacent to the "propped open" door is shown by the following photographic exhibit, except that this exhibit

does not show the narrow "ledge" at the bottom of the glass panel. Plaintiff admitted prior knowledge of the existence of that "ledge" at the bottom of the glass panel, but on the day of the accident believed the glass panel to be the open doorway.

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