Argued and Submitted November 5, 2012.
Resubmitted: January 7, 2013.
[Copyrighted Material Omitted]
CC 084951L2; CA A142775. On review from the Court of Appeals. [*]
Towe v. Sacagawea, Inc., 246 Or.App. 26, 264 P.3d 184, (2011)
Robert Udziela, Portland, argued the cause for petitioner on review. With him on the brief were J. Randolph Pickett, R. Brendan Dummingan, Kristen West, and Kimberly O. Weingart, Pickett Dummigan LLP, Portland.
Andrew Grade, Fotouhi Epps Hillger Gilroy Mau PC, Lake Oswego, argued the cause and filed the brief for respondents on review Rick J. and Sherry Matthews, dba Mountain View Rock. David O. Wilson, Law Offices of Thomas A. Andersen, Eugene, filed the brief for respondent on review Re/Max Ideal Properties, Inc.
Shenoa L. Payne, Haglund Kelley Jones & Wilder, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Before, Balmer, Chief Justice, and Kistler, Walters, Linder, Brewer, and Baldwin, Justices.[**]
[357 Or. 76] LINDER, J.
Plaintiff was injured while riding his motorcycle on a private road that provided access to several pieces of property. On the upper part of the access road, a cable had been stretched across the road to prevent entrance to a quarry at the end of the access road. Plaintiff failed to see the cable in time to stop and was injured when his motorcycle hit the cable.
Plaintiff brought this action for negligence against Rick and Sherry Matthews, doing business as Mountain View Rock (Mountain View), who had placed the cable across the access road where the road crossed onto their property. Plaintiff joined Re/Max Ideal Properties, Inc. (Re/Max), as a defendant in the action, on the theory that Re/Max, by advertising property along the access road as " for sale," was at least partly responsible for causing plaintiff to ride his motorcycle up the access road. The trial court granted summary judgment for defendants, concluding as a matter of law that plaintiff was " 100% responsible for his injuries and no reasonable juror could find otherwise." A majority of the Court of Appeals affirmed on the alternative grounds that Mountain View, as a matter of law, did not breach any duty of care that it owed to plaintiff and that Re/Max, as a matter of law, could not be found by a reasonable jury to have caused plaintiff's injuries. Towe v. Sacagawea, Inc., 246 Or.App. 26, 264 P.3d 184 (2011). We allowed review and, as we will explain, we reverse the decision of the Court of Appeals in part and affirm in part, and we remand to the trial court for further proceedings.
Plaintiff was injured while riding his motorcycle in November 2006. The road on which plaintiff was injured is a side road off Indian Creek Road in rural Jackson County that provides access to four properties. One property is owned by the Bureau of Land Management (the BLM); a second property has a residence on it and is owned by the Clarkes; a third property, which is unimproved, formerly was owned by a person
named Kinyon (the " Kinyon property" );  and the [357 Or. 77] final property is a rock quarry owned by Mountain View. The access road ends at the quarry. The access road is gravel-surfaced up to Mountain View's property; from that point on, the road is paved.
Where the access road crosses onto Mountain View's property, and changes from gravel to paved road, Mountain View placed a cable across the road in an effort to deter theft and vandalism at the quarry. The cable was on or nearly on Mountain View's property line, and stretched between two metal posts on either side of the road. The record suggests that the quarry operated sporadically, usually with a crew of two or three workers. On days when the quarry operated, the first worker to arrive in the morning generally would unlock and unhang the cable by moving it to the side of the road. Conversely, the last worker to leave in the afternoon or evening would rehang the cable and relock it. The evidence permits competing conclusions, however, as to whether workers were consistent in rehanging the cable. Although the record contains evidence that workers were reliable about rehanging and locking the cable when they left the quarry for the day, the record also contains evidence that people had traveled the road on weekends and other times when the quarry was closed, and did not notice the cable and were not blocked by it from continuing along the road onto Mountain View's property.
[357 Or. 78] The evidence relevant to the cable's condition was also disputed. Viewed in plaintiff's favor, the cable hung only about 10 to 12 inches off the ground, and it was weathered and rusted. Likewise, the metal posts on either side of the road to which the cable was attached were rusted steel and not particularly visible. An orange construction cone had been threaded onto the cable, apparently to make the cable more visible, but the cone was faded and covered with black dirt. Three pieces of yellow caution tape also had been tied along the cable. After the accident, a no trespassing sign was found face up on the ground nearby, but not attached to the cable or otherwise visibly posted at the boundary to Mountain View's property. According to Clarke, who occasionally worked at the quarry, the no trespassing sign sometimes hung from the middle of the cable, but it " would fall off" because of the way it was attached.
The parties also dispute the extent to which the privately owned access road was open to the public. The record establishes that the access road is privately owned by three different parties. The first portion of the access road is owned by the BLM. The next portion of the road is owned by the owner of the Kinyon property. The last portion of the access road--beginning at or about where the cable had been strung--is owned by Mountain View. As earlier described, the road also provides access to a parcel of land owned by and resided on by the Clarkes, which is near the entrance to the access road off Indian Creek Road. But the Clarkes do not own the portion of the access road that is adjacent to their property;
instead, the BLM owns that portion of the road.
A sign was posted where the access road intersected with Indian Creek Road--that is, where people might turn off Indian Creek Road and onto the access road. The sign was divided into three parts. The top third of the sign identified Mountain View and listed phone numbers for that business; the middle third identified the Clarkes and listed their address; and the bottom third of the sign stated " Private Road No Trespassing." Rick Matthews, who owned Mountain View, had the sign made and put it up sometime in 2003 or 2004. There was no similar " no trespassing" sign for either the BLM or the Kinyon properties. Rather, the [357 Or. 79] only evidence as to whether the BLM permitted the public to travel its portion of the road is that the BLM had previously prohibited Mountain View from closing a gate that Mountain View and Clarke, at some point in the past, had constructed across the access road near the intersection with Indian Creek Road. The only evidence as to whether the owner of the Kinyon property did or did not permit public use of the adjacent portion of the road is that, in January 2006 (about 10 months before the accident that resulted in this case), Kinyon had listed his property for sale with Re/Max and Re/Max, in turn, had posted a sign at the intersection with Indian Creek Road with a directional arrow pointing up the access road.
That sign with the directional arrow is significant to plaintiff's claim against Re/Max. In addition to the directional sign that Re/Max had placed at the intersection with Indian Creek Road, Re/Max also had placed a second sign on the Kinyon property that was visible from the access road and that identified the property as " for sale." That second sign had been located about 120 to 150 yards before the point where Mountain View's cable hung across the road. The Re/Max agent had visited the property and had seen the cable stretched across the access road, near the boundary line for Mountain View's property. At some time before the accident occurred, around the end of August or beginning of September 2006, the Re/Max agent removed the sign on the Kinyon property because the listing with Re/Max had been withdrawn. The agent, however, inadvertently left the directional sign posted at the intersection near the base of the access road.
Plaintiff was familiar--at least, in a general way--with the access road and the properties along it. Plaintiff lives on another access road off Indian Creek Road, approximately two miles from the accident site. He had worked for Mountain View at the quarry for a few days 10 to 11 months before the accident. He knew that the area of the road above the cable crossed on to Mountain View's private property and was owned by Mountain View. Plaintiff also knew about the cable itself. At least once during the brief time that he worked for Mountain View, plaintiff had taken down the cable when he arrived in the morning; he thought [357 Or. 80] he had probably put it up once when he left as well. Plaintiff also understood that the cable was up " quite often" when the quarry was closed. But the cable was not up at least two times when plaintiff had gone up the access road while the quarry was closed, one of which was on a Sunday. Finally, plaintiff, at the time of the accident, knew where the Kinyon property was located and was aware that it had been for sale. In fact, he and his girlfriend had driven up the access road the spring before the accident when it was listed for sale by Re/Max, saw the " for sale" sign marking the property, and walked around the area on foot.
Plaintiff's ongoing interest in property for sale in the area was what prompted him to ride up the access road on the day of the accident. His girlfriend had mentioned to him the weekend before, and again the weekend of the accident, that there were three or four properties for sale up the access road. She also had said that they would not sell, because the owner of Mountain View would not allow an easement on the road to access them. In plaintiff's words, he believed those properties " must be on [Mountain View's] private road where the cable is--you know, where the cable is, up that paved road or something."
The accident occurred after 4:00 p.m. on Sunday, November 5, 2006. Plaintiff and an
other person, Koch, were riding their motorcycles on Indian Creek Road. Plaintiff was following Koch, because Koch had been having some mechanical difficulties with his motorcycle. Koch turned onto the access road; plaintiff did not know why Koch decided to take that route. Plaintiff decided, however, that he would follow Koch so that he could look at the property that his girlfriend had told him was for sale up the road. He saw the Re/Max directional sign at the entrance to the access road, which caused him to think about the properties that his girlfriend had described. As plaintiff testified in his deposition:
" A * * * The reason for me to go down that road is more property for sale, where is it. That was the reason I went down there.
" Q Well, the first time you said that the reason he went down the road was you were following [Koch], right?
[357 Or. 81] " A Right. * * * I wondered why he [Koch] turned on that road. And then the Re/Max [directional] sign is down here at the bottom of the road; I said well, might as well go up there and see where there's properties for sale."
Koch took the lead as the two rode up the access road, and plaintiff followed. As they rode past the Kinyon property and towards Mountain View's property, plaintiff was looking for the properties that his girlfriend had told him about. Plaintiff saw that the sign that had been on the Kinyon property was no longer there, but he thought that the properties his girlfriend had mentioned were in the same general vicinity, probably on Mountain View's privately owned portion of the road, and plaintiff was looking for " another sign" to indicate where they were. Plaintiff characterized his eyes as " wandering," looking for a posted sign that would indicate where there was " more property" for sale.
What plaintiff did not think about was the cable. He expressly admitted that he " forgot" about it. Koch, likewise, was not thinking about the cable. He had traveled the road alone on his motorcycle before, and had done so as many as 15 times, but the cable had not been up and blocking the road on those occasions, so Koch had never before noticed or seen it. Koch nevertheless spotted the cable in time to slow and stop before reaching it. Following from behind, plaintiff saw Koch begin to slow; plaintiff passed Koch, accelerating slightly as he did so; and then plaintiff glanced back to see if Koch was following him. During that brief, [357 Or. 82] split-second glance, plaintiff saw that Koch had stopped and had a shocked look on his face. Plaintiff immediately looked ahead, at which point he saw the cable. He engaged his brakes, but barely had time to slow before his motorcycle hit the cable, causing it to " slingshot" back, seriously injuring him. Plaintiff estimated that his fastest speed while traveling on the access road was between 25 and 30 miles per hour, and that he was traveling only somewhat less than that speed when his motorcycle hit the cable.
II. PROCEDURAL POSTURE
Plaintiff brought an action for negligence against Mountain View and Re/Max in circuit
court. The crux of the allegation against Mountain View was that it had been negligent in hanging the cable across the access road and failing to either mark the cable adequately or warning that it was there, given that Mountain View knew or should have known that the general public frequently traveled on the access road and that the public had been invited to inspect real property for sale on that road. The crux of plaintiff's allegation against Re/Max was that it had been negligent in putting up the sign that directed interested parties up the access road toward the cable, while also removing the second sign marking the Kinyon property for sale, the absence of which caused plaintiff to be distracted looking property for sale and thus not notice the cable, which Re/Max had not warned was there.
Both Mountain View and Re/Max moved for summary judgment on multiple grounds. As relevant to the issues presented here, Mountain View argued that, as a matter of law, it had met the requisite standard of care for a property owner regardless of whether plaintiff was a trespasser or a licensee (although it asserted that plaintiff was a trespasser). Mountain View also maintained that plaintiff was wholly responsible for his own injuries. Re/Max asserted that it was not a property owner and so had no duty of care to warn plaintiff of dangers on adjacent land. It also argued [357 Or. 83] that plaintiff was solely at fault for not seeing the cable and that Re/Max did nothing to prevent plaintiff from seeing the cable. Finally, Re/Max argued that, under ordinary negligence principles, as a matter of law it should not be subject to liability for hazards on the access road based merely on its conduct in posting a real estate directional sign at the entrance to the access road.
The trial court granted summary judgment for defendants, concluding that plaintiff was solely responsible for the accident. As the trial court explained in its order:
" None of the defendants can be found negligent in not foreseeing [that plaintiff] would disobey the law requiring motorists to keep a lookout by taking his eyes off the road to turn around. Even without considering the other respects in which [plaintiff] failed to keep a lookout (by having his eyes 'wander'), at a minimum, it is undisputed [that plaintiff] did not keep a lookout when he turned around to look back at Koch.
" [Plaintiff] was driving without looking. He might as well have been driving blindfolded. Koch could see the cable and stopped. [Plaintiff] was 100% responsible for his injuries and no reasonable juror could find otherwise. * * *
" In light of the dispositive nature of [plaintiff's] undisputed testimony, the court need not reach the issues of whether [plaintiff] was an invitee or a trespasser on the private road, whether the cable should have been better marked, the import of the undisputed facts about [plaintiff's] prior knowledge that Mountain View kept a cable across the road at ...