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Shoup v. Wal-Mart Stores12/13/2000
f harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm." See also Andrews v. R.W. Hays Co., 166 Or App 494, 502-03, 998 P2d 774 (2000); Jensen v. Kacy's Markets, Inc., 91 Or App 285, 288, 754 P2d 624 (1988) (both applying standard).
A condition presents an unreasonable risk of harm if "it cannot be encountered with reasonable safety, even if the danger is known and appreciated." Jensen, 91 Or App at 289.
Defendant contends that the risk of harm arising from the positioning of a greeter in a busy and congested entry of a retail store is not unreasonable because the greeter can still be approached safely, even when stationed in a congested and busy environment:
"Being a person, the greeter is not an unreasonably dangerous condition found at the store, such as a foreign substance on the floor or a concealed hole. He is not an inanimate object. * * * The plaintiff would know and understand, as any reasonable person would, that a person with the inherent mobility of his legs can stand in one place, step forward, back, to either side, or begin walking from a standstill at any moment. There is therefore a zone around a person which could be occupied or invaded by his or her movements at any moment. It should be expected that a reasonable person would appreciate this zone whenever encountering another person in a store, on a sidewalk, or anywhere for that matter. Therefore, the greeter, a person, can be encountered with reasonable safety where his presence is known and appreciated by a reasonable person in the position of the plaintiff."
Thus, defendant's argument, as we understand it, is that even viewing the evidence most favorably to plaintiff, any harm suffered in this case arose not from Niver's mere presence in the entryway, but from his volitional act of turning and stepping back into plaintiff. That is, plaintiff's injury was caused not by any "human obstruction" in the aisle, but by Niver's independent movement.
We agree that the risk of harm that plaintiff encountered here arose from Niver's conduct and not from the condition of his mere presence in a busy and congested entry. Most simply, the irreducible essence of plaintiff's complaint is that plaintiff was hurt because Niver moved without looking. This is not a case in which plaintiff was injured when she ran into Niver after he had been directed to stand immobile, like a sentient pillar, in the middle of a busy aisle. Nor was this a case in which the condition of Niver's static presence forced plaintiff into the dangerous path of onrushing traffic. Rather, the asserted risk arose--and plaintiff's injuries allegedly occurred--precisely because human beings are animate, mobile, and occasionally careless.
We thus agree with defendant that, in this case, the greeter's mere presence in a crowded and busy entryway did not, in itself, create an unreasonable risk of harm of the sort giving rise to premises liability. Schnell v. Goodwill Industries, 253 Or 100, 102, 451 P2d 484 (1969), is illustrative. There, the trial court refused to withdraw a specification that the defendant store owner had been negligent in "unloading rugs in that portion of said store normally occupied by customers during business hours." Id. at 102. The Supreme Court reversed, drawing a distinction between the act of unloading rugs, which was not "a dangerous act in itself" and the manner in which those rugs were unloaded. Id. at 103. The court held that while a storekeeper does have "a duty not to unload rugs negligently," there was no duty not to unload rugs at
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