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Stocking v. Sunset Square Inc.

December 14, 1972

STOCKING, RESPONDENT,
v.
SUNSET SQUARE, INC., APPELLANT



Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge.

Darrel L. Johnson, Portland, argued the cause for appellant. With him on the briefs were Bullivant, Wright, Johnson, Pendergrass & Hoffman, and James L. Knoll, Portland.

George M. Joseph, Portland, argued the cause for respondent. With him on the brief were Bemis, Breathouwer & Joseph, Portland, and Reiter, Wall & Bricker, P.C., and Carlton R. Reiter, Portland.

In Banc. Tongue, J.

Tongue

This is an action for personal injuries sustained by plaintiff when she fell after stepping into a "depression" in the parking lot of defendant's shopping center. The jury returned a verdict for plaintiff. Defendant appeals from the judgment on that verdict. We affirm.

Defendant's primary contention is that the trial court erred in denying defendant's motion for nonsuit and directed verdict because: (1) "[t]here is no evidence that the depression which allegedly caused Plaintiff's fall * * * was either caused by the Defendant or its existence known by the Defendant prior to Plaintiff's fall," and (2) "* * * there is no evidence that a parking lot owner exercising reasonable care would have discovered that depression and had time to protect the Plaintiff from any possible harm which might be caused by that condition."

Defendant concedes that the law controlling the disposition of this case is as stated in 2 Restatement 215-16 Torts 2d ยง 343, which provides that:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

"(c) fails to exercise reasonable care to protect them against the danger."

Defendant was the owner of the shopping center, including an asphalt paved parking lot, which was opened in August 1969. Defendant's manager testified that "depressions" sometimes appear in such parking lots when the soil under the asphalt paving erodes and "drops away." He also testified that in February 1970, after having "problems" with such "depressions," defendant had the lot patched, but that between then ...


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