Lane LEONARD, in his capacity as personal representative of the Estate of Lindsay Alyse Leonard, Plaintiff-Appellant,
MORAN FOODS, INC., dba Save-A-Lot Food Stores; Supervalu, Inc., dba Save-A-Lot Food Stores; Tito Jose Feliciano, and City of Portland, Defendants-Respondents, and PORTLAND GENERAL ELECTRIC COMPANY, dba PGE, Defendant
Argued and submitted November 8, 2013
100811857. Multnomah County Circuit Court. Michael J. McShane, Judge.
Richard J. Vangelisti argued the cause for appellant. With him on the opening brief were Scott F. Kocher, Vangelisti Kocher LLP, Meagan A. Flynn, and Preston Bunnell & Flynn, LLP. With him on the reply brief were Vangelisti Law Firm LLC, Meagan A. Flynn, and Preston Bunnell & Flynn, LLP.
Jan K. Kitchel argued the cause for respondents Moran Foods, Inc., Supervalu, Inc., and Tito Jose Feliciano. With him on the briefs were W. Michael Gillette, Andrew J. Lee, and Schwabe, Williamson & Wyatt, P.C.
Harry Auerbach, Chief Deputy City Attorney, argued the cause and filed the brief for respondent City of Portland.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.[*]
[269 Or.App. 114] LAGESEN, J.
While driving as part of his job as a district manager for defendant Moran Foods on the night of November 1, 2009, defendant Tito Feliciano struck plaintiff's daughter, Lindsay Leonard, with his car as she was crossing Foster Road in Portland in a marked but faded crosswalk under a streetlight that was not working. The collision killed Leonard. Plaintiff, Leonard's father, filed this wrongful death negligence action against a group of defendants whose conduct, he alleges, converged to cause Leonard's death: Feliciano (for his negligent acts as a driver); Moran Foods, Inc. (for its vicarious liability as Feliciano's employer and for its own negligence in failing to provide adequate training to Feliciano on the company's cell phone use policy and on safe driving); Moran Foods' parent company, Supervalu, Inc. (for failing to provide adequate training to Feliciano on its cell phone use policy); the City of Portland (the city) (for negligent maintenance of the crosswalk markings); and Portland General Electric Company (PGE) (for negligent maintenance of the streetlight).
The case went to trial against Feliciano and Moran Foods only. The trial court dismissed Supervalu and the city from the case on summary judgment, concluding that there was no evidence from which a reasonable factfinder could find that those parties' conduct, even if negligent, played a causal role in the accident; the court dismissed PGE from the case after plaintiff settled with PGE. The trial court also did not permit plaintiff to present to the jury his theory that Moran Foods' alleged negligence in training Feliciano on the company's cell phone use policy contributed to the accident, having granted summary judgment to Moran Foods on that theory. The jury ultimately returned a verdict finding Leonard 51 percent at fault, Feliciano 34 percent at fault, and Moran Foods 15 percent at fault. As required by ORS 31.600, the trial court entered judgment in favor of defendants.
On appeal, the primary question confronting us is this: should plaintiff have been
permitted to make his case against Supervalu and the city to the jury? That is, at [269 Or.App. 115] summary judgment, did plaintiff come forward with evidence that would permit a reasonable factfinder to find either that Supervalu's failure to train Feliciano adequately on its cell phone use policy, or the city's failure to maintain the crosswalk markings, was a substantial factor in Leonard's death?
We answer that question in the negative with respect to Supervalu, but conclude otherwise with respect to the city and, accordingly, reverse and remand for a new trial. We also address the other issues raised by the parties that may bear on the trial court's conduct of the trial on remand: (1) Whether the trial court erroneously granted summary judgment to Moran Foods on plaintiff's claim that Moran Foods negligently failed to train Feliciano on the company's cell phone use policy; (2) whether the trial court erred by denying plaintiff leave to amend the complaint to add a claim for punitive damages against Moran Foods; (3) whether the trial court erred by denying Moran Foods' motion for a directed verdict on the remaining specification of direct negligence against it; and (4) whether the trial court committed instructional error either when it gave defendants' requested instruction on amendments to Oregon's mobile communications device law, ORS 811.507, which did not take effect until after the accident, or when it declined to give defendants' requested instruction regarding Leonard's obligation, as a pedestrian, to keep a proper lookout.
A. Substantive Facts
On the evening of November 1, 2009, Feliciano was driving a company-owned vehicle westbound on S.E. Foster Road in Portland. His destination was the Moran Foods Save-A-Lot store located on that road. While driving, Feliciano used his company cell phone to contact four different Moran Foods stores, including the store on Foster Road to which he was headed.
[269 Or.App. 116] Less than one mile from the store, a marked crosswalk maintained by the city transects Foster Road. Feliciano was aware of the crosswalk from experience. In addition, that night as he was driving, he observed two signs warning him to look for pedestrians as he traveled toward the crosswalk. The crosswalk was demarcated with " ladder bars" --vertical reflective stripes--but some of the ladder bars in the westbound lanes had worn away to varying degrees, with the middle ladder bar in the westbound lanes having worn away completely. The " stop line" that preceded the ladder bar--which indicates where a driver should stop for pedestrians--also had been worn through to the asphalt in some areas. On that evening, the streetlight above the crosswalk, which was owned by the city and maintained by PGE, was out. The net effect of the faded ladder bars and the lack of lighting was a " dark zone" in a part of the crosswalk spanning the westbound lanes of Foster Road.
Sometime before 7:25 p.m., Leonard and her roommate, Jessica Finlay, entered the crosswalk from the north, stepping into the right westbound lane of Foster. Feliciano was approaching the crosswalk at that time, traveling in the left westbound lane of Foster. He was " looking straight ahead" and not talking on or otherwise using his cell
phone at the time, although it was lying face up on the passenger seat of his car. He did not see the two women in the crosswalk, and he did not stop. Instead, the right front corner of Feliciano's car struck them both. Leonard died at the scene of the collision from her injuries; Finlay was hospitalized and later died of her injuries.
B. Procedural Facts
Plaintiff initiated this wrongful death action, alleging that the negligence of each of the named defendants (Feliciano, Moran Foods, Supervalu, the city, and PGE) caused Leonard's death. As noted, plaintiff dismissed [269 Or.App. 117] PGE from the case pursuant to those parties' settlement. Plaintiff's theory of liability with respect to Supervalu, and one of plaintiff's theories of liability with respect to Moran Foods, was that (1) just before the collision, Feliciano received an incoming call on his cell phone; (2) Feliciano's phone, which was lying face up on the passenger seat, illuminated to signal receipt of that call; (3) although Moran Foods and Supervalu had a policy prohibiting cell phone use by employees while driving, they negligently failed to train employees on, or to enforce, that policy; which, in turn (4) caused Feliciano to be distracted from the road as he approached the crosswalk. Supervalu moved for summary judgment, and Moran Foods moved for partial summary judgment. The trial court granted summary judgment to Supervalu on the ground that the evidence on summary judgment was insufficient to permit a reasonable factfinder to find that Feliciano was distracted by his cell phone at the time of the accident and, thus, insufficient to permit a finding that any negligence in training on, or enforcing, the company's cell phone use policy played a causal role in the accident. For the same reasons, the trial court granted summary judgment in part to Moran Foods on plaintiff's claim that Moran Foods was negligent in training on, or enforcing, its cell phone use policy, precluding plaintiff from presenting that theory of liability to the jury.
With respect to the city, plaintiff's primary theory was that the worn-away parts of the crosswalk and, in particular, the faded middle ladder bar, created a " dark zone" at night, impairing Feliciano's ability to see Leonard and Finlay as they moved through that zone. Plaintiff's [269 Or.App. 118] position was that, if the crosswalk had not been in disrepair, the visual contrast provided by the properly maintained ladder bars would have called Feliciano's attention to the crosswalk and to Leonard and Finlay as they moved through the crosswalk, thereby preventing the accident or minimizing the harm caused by it. The city moved for summary judgment. The trial court initially denied the motion, concluding that the summary judgment record was sufficient to demonstrate the existence of a fact question for the jury on causation. However, the court subsequently changed course and granted the city's renewed motion shortly before trial, concluding that it was speculative whether the city's failure to maintain the markings on the crosswalk was a causal factor in the accident. The court then entered a limited judgment dismissing the city from the case.
As mentioned, the case went to trial against Feliciano and Moran Foods. After the trial court denied Moran Foods' motion for a directed verdict on plaintiff's remaining claim of direct negligence against it, the jury returned a verdict, finding Feliciano and Moran Foods negligent and Leonard herself comparatively negligent. The jury allocated fault among the parties as follows: Feliciano (34 percent), Moran Foods (15 percent), and Leonard (51 percent). Because the jury allocated
greater than 50 percent of the fault to Leonard, under ORS 31.600(1), the trial court entered judgment for defendants. Plaintiff appealed.
On appeal, plaintiff seeks a reversal of the limited judgment entered in favor of the city and the general judgment entered in favor of Moran Foods, Supervalu, and Feliciano, as well as remand for a retrial against all defendants (that is, all defendants except PGE). Specifically, plaintiff assigns error to the trial court's grant of summary judgment to Supervalu and its grant of partial summary judgment to Moran Foods, as well as its grant of summary judgment to the city. Plaintiff also assigns error to the trial court's denial of his motion for leave to amend to add claims for punitive damages against Supervalu and Moran Foods, as well as the trial court's decision to instruct the jury on a statute regarding motorists' use of cell phones that did not apply to this case. Moran Foods cross-assigns error to the denial of its motion for a directed verdict. In addition, [269 Or.App. 119] ...