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FILED: April 20, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JACQUELINE HAMMER,

Plaintiff-Respondent,

v.

FRED MEYER STORES, INC.,
a Delaware corporation,

Defendant-Appellant.

Josephine County Circuit Court
05CV0875
A142677

Lindi L. Baker, Judge.

Argued and submitted on January 20, 2011.

Edward H. Talmadge argued the cause for appellant. With him on the briefs was Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Megan E. Dolan argued the cause for respondent. With her on the brief were Martin C. Dolan and Dolan Griggs LLP.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Carson, Senior Judge.

BREWER, C. J.

Affirmed.

BREWER, C. J.

Defendant appeals from a judgment on a jury verdict for plaintiff in this premises liability action arising from personal injuries that plaintiff suffered while shopping in one of defendant's stores. In two assignments of error, defendant challenges the trial court's denial of its directed verdict motion and the giving of a res ipsa loquitur instruction to the jury. We affirm.

In reviewing the denial of defendant's motion for a directed verdict, we view the evidence and reasonable inferences that can be drawn from it in the light most favorable to plaintiff. Greist v. Phillips, 322 Or 281, 285, 906 P2d 789 (1995). Our review "is circumscribed by the case actually presented to the jury through pleadings, evidence, and jury instructions." Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or 304, 310, 39 P3d 846 (2002). In addressing defendant's jury instruction challenge, we view the evidence supporting the giving of the instruction in the light most favorable to plaintiff, the party requesting the instruction. Jett v. Ford Motor Company, 192 Or App 113, 120, 84 P3d 219, rev den, 337 Or 160 (2004). In light of that view of the evidence, we review to determine whether the instruction given by the trial court was a correct statement of the law. See generally State v. Rogers, 313 Or 356, 383, 836 P2d 1308 (1992), cert den, 507 US 974 (1993). Further, an erroneous instruction constitutes reversible error only if it "prejudiced the defendant when the instructions are considered as a whole." State v. Williams, 313 Or 19, 38, 828 P2d 1006 (1992).

As pertinent here, the evidence at trial showed that, while plaintiff was shopping at a Fred Meyer store, she removed a half-gallon carton of lemonade from a display shelf. The shelf was located in a refrigerated "end cap" display at the end of a shopping aisle. The shelves in the end cap were four or five feet wide and were designed to fit into the end cap and fasten down. The cartons of lemonade were loaded on a shelf inside the end cap that was at chest-level to plaintiff. The cartons were loaded, facing forward, all the way across the shelf.

When plaintiff took one of the cartons from the shelf, the shelf flipped up from the back, ejecting additional cartons of lemonade from the shelf toward plaintiff. After the shelf flipped up and ejected the cartons, it snapped back down. Plaintiff attempted to dodge the falling cartons but, despite her efforts, a couple of the cartons struck her. In attempting to get out of the way, plaintiff suffered injuries to her neck and shoulders. As a consequence of those injuries, plaintiff incurred substantial medical expenses. Plaintiff ultimately filed this action, alleging in her complaint that the shelving display in the end cap was defective and that defendant was negligent in failing to exercise reasonable care to protect plaintiff from, or warn her against, the danger posed by the defective shelf display.

When the accident occurred, a supplier's representative, Donald Anderson, was stocking shelves nearby. Anderson heard a noise that sounded like items falling to the floor. When he looked toward the direction of the noise, Anderson saw cartons "still falling," and plaintiff was standing by other fallen cartons. When Anderson attempted to place the fallen cartons back in the middle part of the shelf, the shelf tipped forward toward him, so Anderson shoved the cartons all the way to the back of the shelf. Anderson then notified one of defendant's employees that there was a problem with the shelf that needed to be fixed.

Defendant's store manager, Sowers, testified that defendant owns the end caps located in its stores. According to Sowers, when an employee builds an end cap display, product is taken off shelves and moved around. In that process, shelves and end caps can be moved around the store every week or two. Defendant does not have a designated employee who is responsible for inspecting whether shelving is correctly installed. Sowers testified that defendant's employees are responsible for noticing and fixing shelves that are unstable, sagging, or not properly installed.

Defendant's food manager, Alexander, was responsible for overseeing display (including end cap) safety, product safety, and product placement, in the store where plaintiff was injured. Alexander was unaware of any policy regarding how much product could be placed on a shelf or the weight capacity for end cap shelves. There was a policy that required employees to stack an end cap shelf until it was full. Alexander testified that, in the past, defendant had had to replace shelves in end cap displays. Inspections occurred if Alexander was notified of a problem with a display; however, there was no regular inspection system in place, nor were there maintenance or inspection logs for end cap displays at the store.

Scott McElroy, an independent risk consultant, testified as an expert witness on behalf of plaintiff. McElroy testified that, because defendant had failed to conduct safety audits, allowed improper stacking of product on store shelves without adequate attention to weight, and allowed improper loading of shelves in the store, defendant "did not meet the standard of care to protect the public from injury." McElroy also testified that defendant had failed to provide its store employees with specific training about shelving, and that shelves could become loose, metal components could become worn, or shelves could be improperly inserted into racks. McElroy could not testify to the precise mechanism that caused the shelf to tip in this case, but he opined:

"[T]he shelf doesn't fall on its own. And the shelves are supposed to be secure enough where you can reach up and grab an item from the shelf, and not have it collapse which appears to be what happened."

Defendant moved for a directed verdict at the conclusion of plaintiff's case-in-chief, and again at the close of the evidence, on the ground that plaintiff could not prevail because there was no evidence that defendant knew of a problem with the shelf or was aware of a danger before the accident occurred in this case. The trial court denied those motions. At the end of the trial, among the other instructions that it gave, the court instructed the jury concerning the doctrine of res ipsa loquitur, using a modified version of Uniform Civil Jury Instruction 24.01.(1) We consider below whether defendant adequately objected to the instruction.

The jury found that defendant was negligent in one or more of the ways alleged in plaintiff's complaint and that defendant's negligence caused plaintiff damage; it awarded plaintiff economic and noneconomic damages in the total amount of $362,000. Defendant appeals from the ensuing judgment that the trial court entered on the jury's verdict.

We first address defendant's argument that the trial court erred in denying its motions for directed verdict. Plaintiff's claim invokes the legal duty owed by a land occupier to business invitees. Defendant asserts on appeal, as it did before the trial court, that plaintiff adduced no evidence that defendant had discovered, or in the exercise of reasonable care should have discovered before plaintiff was injured, any defect in the shelf display. According to defendant, the trial court--in reaching a contrary conclusion-- erroneously applied the doctrine of res ipsa loquitur to identify permissible inferences from which the jury could find that defendant was negligent. In particular, defendant asserts that the trial court overlooked controlling case law establishing that that doctrine cannot be invoked in the circumstances of this case.

The Supreme Court summarized the legal duty owed by a land occupier to business invitees in Woolston v. Wells, 297 Or 548, 557-58, 687 P2d 144 (1984):

"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm."

Res ipsa loquitur is a rule of circumstantial evidence that permits a jury to infer both negligence and causation if the harm that occurs is "'of a kind that which more probably than not would not have occurred in the absence of negligence on the part of the defendant'" McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353, 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649, 642 P2d 651 (1982)); Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 640, 978 P2d 429, rev den, 329 Or 318 (1999). A plaintiff must establish the fundamental elements of the doctrine before an inference of negligence or causation will be permitted, namely, (1) that there is an injury, (2) that the injury "is of a kind which ordinarily does not occur in the absence of someone's negligence," and (3) that the negligence that caused the event was more probably than not attributable to a particular defendant. Umpqua Aquaculture, Inc. v. Ron's Welding, 111 Or App 220, 223-24, 826 P2d 31 (1992) (quoting Barrett v. Emanuel Hospital, 64 Or App 635, 638, 669 P2d 835, rev den, 296 Or 237 (1983)). In Pattle v. Wildish Construction Co., 270 Or 792, 797, 529 P2d 924 (1974), the court explained that, in order to satisfy the third element, the defendant need not have had exclusive physical possession of the injury-producing instrumentality. Rather, it must appear from the evidence that the negligence of which the thing speaks is probably that of defendant and not of another. Wilson v. Cooke, 174 Or App 426, 26 P3d 822 (2001). Whether a reasonable juror could draw such an inference is an issue of law to be determined by the court. Fieux, 159 Or App at 639-40.

With that introduction, we turn to defendant's argument. According to defendant, this case is controlled by the Supreme Court's decision in Lee v. Meier & Frank Co., 166 Or 600, 114 P2d 136 (1941), where the court held that a customer who had tripped over a pillow in the aisle of a store failed to state a claim against the owner of the store. The plaintiff's theory was

"that (1) the defendant's pillow rack was not of sufficient size; (2) the rack was not provided with a sufficient guard to prevent pillows from falling into the aisle; and (3) the defendant piled pillows in the rack 'at a careless and negligent height, manner and arrangement.'"

166 Or at 602. Nevertheless, the storekeeper was not liable, because it had not placed the pillow in the aisle, did not actually know of its presence, and had no constructive notice arising from the pillow's presence on the floor for a sufficiently long time. Id. at 604-05.

Defendant also invokes Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 760 P2d 874 (1988). In that case, the plaintiff's decedent, a guest at the defendant's hotel, died while attempting to rescue some children, also guests of the hotel, who were apparently caught in an undertow or some other hazardous condition of the surf on the beach next to the hotel. The plaintiff alleged that the decedent's death was the result of the defendant's failure to warn its guests about the dangerous condition of the surf or to provide safety measures.

The court first determined the appropriate analytical approach to be followed when the negligence alleged is a failure to warn or protect:

"Failure to warn or protect should be analyzed in terms of foreseeability and unreasonable conduct. If a specific affirmative duty is imposed by statute, status or relationship, an analysis based on that specific duty is also appropriate. As noted in Fazzolari [v. Portland School Dist No 1J, 303 Or 1, 734 P2d 1326 (1987)], the difference between a traditional duty analysis and a foreseeability analysis may be only semantic. In 'duty' terms, a defendant may be found to have a duty to warn another of an undue risk of harm to a protected interest of the other if the defendant knows of the risk. See the discussion of Prosser and Keeton, The Law of Torts (5th ed 1984), and Harper, James & Gray, The Law of Torts (2d ed 1986), in Fazzolari, 303 Or at 9. If the defendant has a specific duty to the plaintiff, the defendant may also be liable without knowledge of the risk; that depends on the terms of the particular duty. Absent an affirmative duty, the existence of a 'duty' in the given circumstances is a conclusion to be reached, not a means of analysis."

Fuhrer, 306 Or at 438. The court then considered the role of the defendant's status as innkeeper in the negligence analysis, noting that, under the Restatement (Second) of Torts