Premises Liability Updates

Maas v. Miller
Johnson v. Short
Closing Thoughts

Maas v. Willer:
Slip and Fall on Damaged Sidewalk

In Maas v. Willer, 203 Or App 124 (2005), pet. for rev. denied, 340 Or 411 (2006), the plaintiff tripped and fell on a break in the sidewalk. The plaintiff said she had not observed the condition of the sidewalk before she fell. The defendant claimed that the plaintiff was comparatively negligent in failing to observe and avoid the break in the sidewalk.

The key jury instruction in Maas v.Willer was this: "I'm going to give you a definition for unreasonably dangerous condition. It is a condition [that] is considered unreasonably dangerous if it cannot be encountered with reasonable safety—even if the danger is known and appreciated. A condition is not unreasonably dangerous if the hazard arising from it would have been known and understood by reasonable persons expecting to encounter the condition." 203 Or App at 127.

Insurance evaluations are typically done in such a way that they are difficult for plaintiff's counsel to discover. If the carrier's advice is followed, the client's level of risk is reduced. And the public is safer: a win-win situation.

Ordinarily, a premises liability claim arises when someone is unaware of or forgets about an allegedly defective condition and is then injured when encountering the condition. The Maas instruction asks the jury to put aside the actual experience of the plaintiff (whether or not the plaintiff knew about the condition; whether or not the plaintiff remembered the defective condition; and whether or not the plaintiff appreciated the risk of the condition) and instead to assume that the plaintiff knew about the condition and adequately appreciated its risks. A property owner under Maas v. Willer might be liable only if a known defect were so dangerous that it could not be encountered safely. Some believe that Maas v. Willer case is a sharp departure from prior Oregon law. Plaintiff argued in that case, for example, that the ruling essentially ended liability in a typical "slip and fall" case.

Johnson v. Short:
Delivery Person Injured on Slick Steps

In June 2007, the Oregon Court of Appeals issued its opinion in Johnson v. Short. A completely different unanimous panel, which never cited Maas v. Willer, overturned a summary judgment for a property owner. In Johnson v. Short, a UPS delivery man attempted to deliver a package and chose to go up steps that "looked 'very slick' because they were completely covered in wet moss or algae." There was another set of steps a few feet away that led to the same porch. On the way down the same mossy steps he went up, the delivery man slipped and fell. He brought a premises liability claim for negligence. The defendant property owner argued in part that because the plaintiff recognized the hazards posed by the slippery steps and used them anyway that summary judgment should be entered against the plaintiff.

The Oregon Court of Appeals reversed the trial court's grant of summary judgment. "[T]here is a disputed issue of fact as to whether plaintiff had such an appreciation of the danger presented that there was, as the trial court concluded, 'no causal connection' between plaintiff's injury and 'defendant's failure to either discover the danger or provide warning of it.'"

Closing Thoughts

Any place that can be visited by people—by customers, visitors, delivery services, or even lost individuals—has some potential for injury, and thus the potential for a premises liability claim. Business owners want to know what exposure they have for these claims.

What does this mean for business lawyers, who might not give direct preventative advice on premises liability issues and who typically take a back seat to insurance defense counsel if a claim is made against a business client? For businesses that do not have extensive in-house risk management capabilities, one way to reduce exposure would be to make sure that the business is insured through a commercial lines carrier that provides premises liability risk assessment as part of its services. Insurance evaluations are typically done in such a way that they are difficult for plaintiff's counsel to discover. If the carrier's advice is followed, the client's level of risk is reduced. And the public is safer: a win-win situation.

For those business lawyers who are asked about premises liability issues, the law has unfortunately been made less clear by two relatively recent and conflicting Oregon Court of Appeals decisions.

Direction of Premises Liability Law?
Maas v. Willer suggests that a condition is only defective if it is so dangerous it cannot be safely encountered even when known; Johnson v. Short suggests that a condition may be defective even when the person knows of the danger if the person does not adequately appreciate the nature of the risk presented by the condition.

Both Maas and Johnson cite the leading Oregon Supreme Court premises liability case, Woolston v. Wells, 297 Or 548, 687 P2d 144 (1984). Although Maas and Johnson can be reconciled on a formal level, they seem to reflect very different views about premises liability. In our opinion, Johnson v. Short is closer in spirit to Woolston than is Maas v. Willer, but different trial court judges may have different views on that subject.

UPDATE ON SETTLEMENTS
In June 2007 the Oregon Supreme Court denied review in Terrain Tamers v. IMCO. The settlement approach that was used in the Terrain Tamers case has passed appellate muster, at least for now. For access to the previous Tort Tips on how to do these kinds of settlements, click here.

Tort Tip Archives

Teen Drivers and Parents' Liability
Get the Lead Out Test Kits
When Government Does Wrong
Nursing Home and Assisted Living Rights
Health Insurance Tort Blues
Uninsured Motorist Update
Holiday Accidents
Insurance Legislation
Inadequate Liability Insurance
Measure Seeks to Limit Contingent Fees
Dealing with Clients Outside Your Scope of Practice

The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton.

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The Corson & Johnson Law Firm does not offer any guarantee of case results. Past success in litigation does not guarantee success in any new or future civil action. Our web site describes some of the cases that Don Corson, Lara Johnson, or The Corson & Johnson Law Firm has worked on in the past. Our description of those cases is summary in nature. The results obtained in each of the cases depended on the particular facts of each case. The results of other cases will differ based on the different facts involved.

FULL DISCLAIMER

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	Premises Liability Updates Maas v. Miller Johnson v. Short Closing Thoughts Maas v. Willer: Slip and Fall on Damaged Sidewalk In Maas v. Willer, 203 Or App 124 (2005), pet. for rev. denied, 340 Or 411 (2006), the plaintiff tripped and fell on a break in the sidewalk. The plaintiff said she had not observed the condition of the sidewalk before she fell. The defendant claimed that the plaintiff was comparatively negligent in failing to observe and avoid the break in the sidewalk. The key jury instruction in Maas v.Willer was this: "I'm going to give you a definition for unreasonably dangerous condition. It is a condition [that] is considered unreasonably dangerous if it cannot be encountered with reasonable safety—even if the danger is known and appreciated. A condition is not unreasonably dangerous if the hazard arising from it would have been known and understood by reasonable persons expecting to encounter the condition." 203 Or App at 127. Insurance evaluations are typically done in such a way that they are difficult for plaintiff's counsel to discover. If the carrier's advice is followed, the client's level of risk is reduced. And the public is safer: a win-win situation. Ordinarily, a premises liability claim arises when someone is unaware of or forgets about an allegedly defective condition and is then injured when encountering the condition. The Maas instruction asks the jury to put aside the actual experience of the plaintiff (whether or not the plaintiff knew about the condition; whether or not the plaintiff remembered the defective condition; and whether or not the plaintiff appreciated the risk of the condition) and instead to assume that the plaintiff knew about the condition and adequately appreciated its risks. A property owner under Maas v. Willer might be liable only if a known defect were so dangerous that it could not be encountered safely. Some believe that Maas v. Willer case is a sharp departure from prior Oregon law. Plaintiff argued in that case, for example, that the ruling essentially ended liability in a typical "slip and fall" case. Johnson v. Short: Delivery Person Injured on Slick Steps In June 2007, the Oregon Court of Appeals issued its opinion in Johnson v. Short. A completely different unanimous panel, which never cited Maas v. Willer, overturned a summary judgment for a property owner. In Johnson v. Short, a UPS delivery man attempted to deliver a package and chose to go up steps that "looked 'very slick' because they were completely covered in wet moss or algae." There was another set of steps a few feet away that led to the same porch. On the way down the same mossy steps he went up, the delivery man slipped and fell. He brought a premises liability claim for negligence. The defendant property owner argued in part that because the plaintiff recognized the hazards posed by the slippery steps and used them anyway that summary judgment should be entered against the plaintiff. The Oregon Court of Appeals reversed the trial court's grant of summary judgment. "[T]here is a disputed issue of fact as to whether plaintiff had such an appreciation of the danger presented that there was, as the trial court concluded, 'no causal connection' between plaintiff's injury and 'defendant's failure to either discover the danger or provide warning of it.'" Closing Thoughts Any place that can be visited by people—by customers, visitors, delivery services, or even lost individuals—has some potential for injury, and thus the potential for a premises liability claim. Business owners want to know what exposure they have for these claims. What does this mean for business lawyers, who might not give direct preventative advice on premises liability issues and who typically take a back seat to insurance defense counsel if a claim is made against a business client? For businesses that do not have extensive in-house risk management capabilities, one way to reduce exposure would be to make sure that the business is insured through a commercial lines carrier that provides premises liability risk assessment as part of its services. Insurance evaluations are typically done in such a way that they are difficult for plaintiff's counsel to discover. If the carrier's advice is followed, the client's level of risk is reduced. And the public is safer: a win-win situation. For those business lawyers who are asked about premises liability issues, the law has unfortunately been made less clear by two relatively recent and conflicting Oregon Court of Appeals decisions. Direction of Premises Liability Law? Maas v. Willer suggests that a condition is only defective if it is so dangerous it cannot be safely encountered even when known; Johnson v. Short suggests that a condition may be defective even when the person knows of the danger if the person does not adequately appreciate the nature of the risk presented by the condition. Both Maas and Johnson cite the leading Oregon Supreme Court premises liability case, Woolston v. Wells, 297 Or 548, 687 P2d 144 (1984). Although Maas and Johnson can be reconciled on a formal level, they seem to reflect very different views about premises liability. In our opinion, Johnson v. Short is closer in spirit to Woolston than is Maas v. Willer, but different trial court judges may have different views on that subject. UPDATE ON SETTLEMENTS In June 2007 the Oregon Supreme Court denied review in Terrain Tamers v. IMCO. The settlement approach that was used in the Terrain Tamers case has passed appellate muster, at least for now. For access to the previous Tort Tips on how to do these kinds of settlements, click here. Tort Tip Archives Teen Drivers and Parents' Liability Get the Lead Out Test Kits When Government Does Wrong Nursing Home and Assisted Living Rights Health Insurance Tort Blues Uninsured Motorist Update Holiday Accidents Insurance Legislation Inadequate Liability Insurance Measure Seeks to Limit Contingent Fees Dealing with Clients Outside Your Scope of Practice
	The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton. Benton County • Clackamas County • Coos County • Crook County • Deschutes County • Douglas County • Jackson County • Jefferson County • Josephine County • Klamath County • Lane County • Lincoln County • Linn County • Marion County • Multnomah County • Polk County • Tillamook County • Washington County The Corson & Johnson Law Firm serves clients throughout Oregon, including Eugene, Portland, Brownsville, Springfield, Hood River, Brookings, Corvallis, Salem, Redmond, Roseburg, Medford, Klamath Falls, Myrtle Creek, Bend, Albany, Creswell, Ashland, Central Point, Grants Pass, Junction City, Florence, Tigard, Cottage Grove, Coos Bay, North Bend, Newport, Oregon City, Hillsboro, Gresham, Beaverton. Benton County • Clackamas County • Coos County • Crook County • Deschutes County • Douglas County • Jackson County • Jefferson County • Josephine County • Klamath County • Lane County • Lincoln County • Linn County • Marion County • Multnomah County • Polk County • Tillamook County • Washington County The Corson & Johnson Law Firm does not offer any guarantee of case results. Past success in litigation does not guarantee success in any new or future civil action. Our web site describes some of the cases that Don Corson, Lara Johnson, or The Corson & Johnson Law Firm has worked on in the past. Our description of those cases is summary in nature. The results obtained in each of the cases depended on the particular facts of each case. The results of other cases will differ based on the different facts involved. FULL DISCLAIMER