Karen S. HINCHMAN, Plaintiff-Appellant,
UC MARKET, LLC, an Oregon limited liability company, Defendant-Respondent
Submitted January 9, 2015.
120404915. Multnomah County Circuit Court. Eric J. Neiman, Judge pro tempore.
Timothy J. Vanagas filed the brief for appellant.
Kathryn Reynolds Morton filed the brief for respondent.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[270 Or.App. 562] LAGESEN, J.
Plaintiff visited a convenience store, defendant UC Market, LLC, to purchase a newspaper and lottery ticket. While plaintiff was inside, high winds caused the floor mat located at the exterior doorway of the business to fold over on itself. As plaintiff was leaving the premises, she tripped over the mat and sustained an elbow fracture and other injuries. Plaintiff sued defendant, alleging that defendant was negligent in failing to ensure that the store was safe for reasonable use by business invitees and, in particular, in failing to secure the floor mat to the ground. The trial court granted summary judgment in favor of defendant, concluding that plaintiff's ORCP 47 E affidavit was insufficient to create a genuine issue of fact with respect to whether defendant " knew or should have known" of the hazard posed by the floor mat. We reverse and remand, concluding that, in the light of plaintiff's specific theory of the case, the summary judgment record was sufficient to preclude summary judgment.
Consistent with our standard of review, discussed below, we state the facts in the light most favorable to plaintiff, the nonmoving party. Plaintiff was a frequent customer of defendant, a convenience store located in east Multnomah County. On a morning in early February 2012, plaintiff visited the store to make her regular purchase of a newspaper and a Megabucks lottery ticket. As usual, plaintiff entered the premises by stepping on and over a floor mat located at the exterior doorway of the store. A surveillance video indicates that the mat, which was positioned at an angle in front of the door, was of lightweight design and was not taped, glued, or otherwise secured to the ground.
The east wind was blowing quite hard that day. While plaintiff was inside the store, the wind lifted the edge of the mat, causing it to fold in half, doubling over on itself. After making her purchases, plaintiff turned to leave the store. As she was exiting, plaintiff tripped over the folded-over mat and sustained injuries. A surveillance camera captured the incident.
[270 Or.App. 563] Plaintiff sued defendant for negligence. She alleged that defendant was negligent in " failing to ensure the store entrance was free of obstructions and hazards for reasonable use by business invitees" and, in particular, " failing to ensure the floor mat stayed flat on the floor by use of glue or otherwise." Plaintiff requested economic damages in the sum of $50,000 and noneconomic damages in an amount not to exceed $160,000.
Defendant moved for summary judgment on the ground that any unreasonable danger posed by the mat was limited to the period during which the fabric folded over on itself, and, because plaintiff could present no evidence that defendant knew or should have known that the mat was prone to folding, or did fold, in that manner, plaintiff could not prove that defendant's conduct had deviated from the standard of care. In particular, defendant emphasized the undisputed facts that (1) defendant had no actual knowledge
of any prior instances in which the mat had folded over, due to heavy wind or otherwise; and (2) the mat was lying flat when plaintiff entered the store, and it did not fold over until sometime during the very short period that plaintiff was inside. In the alternative, defendant asserted that it was entitled to summary judgment because the condition of the floor mat was not unreasonably dangerous as a matter of law.
Plaintiff relied on the following evidence in opposition to defendant's motion: (1) the surveillance video recording of her fall; (2) records reflecting wind speeds on and around the date of the incident; and (3) an ORCP 47 E affidavit from plaintiff's attorney. The ORCP 47 E affidavit averred generally that plaintiff " ha[d] retained herein an unnamed expert who is available and willing to testify to [270 Or.App. 564] admissible facts and/or opinions creating a question of fact in this matter." In response, defendant argued that plaintiff's submission of an ORCP 47 E affidavit was insufficient to avoid summary judgment, because expert opinion testimony would be neither necessary nor helpful to prove negligence under the circumstances.
At a hearing on the motion, plaintiff clarified her theory of the case. She explained that her position was not, as defendant presumed, that, " once the mat flipped over, [defendant] should have known of that occurring." Rather, plaintiff asserted that the analysis should " preced[e] the flipping over of the mat" and should instead ask " whether it was negligent on the part of [defendant] to have placed a mat outside the store, the size that it was, the weight that it was," in the light of the local wind conditions. In view of that theory, plaintiff argued that her ORCP 47 E affidavit was sufficient to create a genuine issue of material fact with respect to whether defendant had deviated from the relevant standard of care. Plaintiff told the court:
" And that's the issue, Your Honor, that my expert speaks to. It was simply negligent. Reasonable minds could differ whether it was negligent to place a lightweight mat outside a store without gluing it down, without taping it down, without doing anything else in an area where the winds are such that it's going to lift it up and flip ...