Appeal from Circuit Court, Multnomah County. David M. Sandeberg, Judge pro tempore.
James B. Griswold, Portland, argued the cause for appellant. With him on the briefs were Green, Richardson, Griswold & Murphy, Portland.
Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were James B. O'Hanlon, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.
Howell, Justice. O'Connell, Chief Justice, and McAllister and Holman,*fn* Justices. Denecke, Justice, dissenting. Bryson, Justice, joins in this dissent.
Plaintiff filed this action for damages for injuries sustained when she slipped and fell on defendant's premises. A jury returned a verdict for the defendant, and plaintiff appeals.
The defendant operates a garden supply and nursery business in southeast Portland. On December 13, 1969, plaintiff and her husband went to defendant's nursery to purchase a live Christmas tree. Not being satisfied with the trees in front of the building, they
were directed to an area in the rear where other trees were located either in the ground or in pots. That area was covered with a slatted roof. Crisscross walkways made of 2x12 planks had been laid on the ground. Most of the planks had been covered by asphalt roofing material to prevent the boards from becoming slippery, but in some places the planks were bare where the roofing had been worn away, and in other places the asphalt had been missing since the previous summer. The boards and the roofing were both green in color.
While in the rear section plaintiff traversed a portion of the walkway that was covered with the roofing material. As she approached the tree area she was "looking and glancing" at the trees when she slipped and fell on a bare plank. On the day of plaintiff's accident it had been raining.
Defendant testified that he knew the bare planks were "slippery and dangerous" when wet, and for that reason he placed the asphalt material on them. Defendant also testified that he had placed a warning sign by the gate and one on each side of the building. The signs stated (verbatim):
"Please watch where you are going. This is a nursery where plants grow. There is four seasons: summer and winter, cold and hot, rain, icey spots. Flower petals always falling on the floor, leaves always on the floor.
"We are dealing with nature and we are hoping for the best. We are not responsible for anyone get hurt on the premises.
The plaintiff and her husband testified that they did not see the signs.
The plaintiff alleged that the defendant was negligent
in failing to cover the walkway with a nonskid surface, in failing to keep water and mud from collecting on the walkway, and in directing plaintiff to use the walkway "without first warning her that its surface was not treated or covered with non-skid materials."
Plaintiff's primary assignment of error on this appeal is that the court erred in giving the following instruction:
"If a customer coming on the premises knows of a dangerous condition or if this condition is obvious, there is no duty on the part of the owner to correct or warn of the condition unless, despite the fact that the danger is known or obvious, the owner should anticipate that the dangerous condition will cause physical harm to the customer."*fn1
The plaintiff contends that the instruction was erroneous because it stated that a mere warning of a dangerous condition would satisfy the defendant's legal obligation to plaintiff. However, the defendant contends that the instruction is correct because if a prudent landowner should anticipate that an unreasonably dangerous condition will cause harm to a customer even though the danger is known or obvious, he may either (1) correct the condition, or (2) warn the customer and satisfy his duty.
Both parties cite three previous decisions of this court: Dawson v. Payless for Drugs, 248 Or 334, 433 P2d 1019 (1967); Pribble v. Safeway Stores, 249 Or 184, 437 P2d 745 (1968); and Bertrand v. Palm Springs, 257 Or 532, 480 P2d 424 (1971).
In Dawson the plaintiff fell on ice after leaving defendant's store on her way back to her car in the parking lot. Plaintiff knew that the ice was slippery. This court, relying upon Section 343A of the Second Restatement of the Law of Torts and comment f of that section,*fn2 ...