Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge.
Phil H. Ringle, Jr., Gladstone, argued the cause for appellant. With him on the briefs were Ringle & Herndon, Gladstone.
William L. Hallmark, Portland, argued the cause for respondent. With him on the brief were McMenamin, Jones, Joseph & Lang, Portland.
In Banc. Holman, J. Denecke, J., specially concurring.
Plaintiff brought this action for damages resulting from injuries incurred when she fell upon a merry-go-round at defendant's amusement park. She appealed from a judgment for defendant entered pursuant to a jury verdict.
Plaintiff took a small child for a ride on the merry-go-round which had two levels or tiers of animals upon which to ride. The outer tier was on a platform about a foot lower than the inner tier. Plaintiff and the child rode upon the animals on the upper platform and, upon leaving the merry-go-round at the completion of their ride, plaintiff fell and injured herself. She claims that her foot slipped when she stepped on a bottle cap which was on the floor of the upper platform and that she fell from the upper platform to the lower one and suffered the injuries of which she complains.
Plaintiff first contends the court erred in not instructing the jury that defendant was required to use the highest degree of care for her safety, as required by ORS 460.355(2), while she was a patron on the amusement device. Insofar as applicable to plaintiff's contention, the statutory law is as follows:
"460.310 Definitions for ORS 460.310 to 460.380. As used in ORS 460.310 to 460.380, unless the context requires otherwise:
"(1) 'Amusement ride' means any vehicle, boat or other mechanical device moving upon or within a structure, along cables or rails, through the air by centrifugal force or otherwise, or across water,
that is used to convey one or more individuals for amusement, entertainment, diversion or recreation 'Amusement ride' includes, by way of illustration:
"(a) Devices commonly known as Ferris wheels, carousels, parachute towers, tunnels of love and roller coasters.
"(b) Devices and equipment generally associated with winter sports activities, such as ski lifts, ski tows, j-bars, t-bars, ski ...