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Garrison v. Deshutes County6/21/2002
"The issue is not whether plaintiffs were comparatively negligent, which is indeed a jury question, but, rather, whether the presence of a warning would have had any additional effect on plaintiffs' knowledge of the risk. In other words: Was there a causal link between the absence of a warning and Gary Garrison's injuries? If, on the summary judgment record, the trial court were able to conclude that the absence of a warning sign was not the cause of Garrison's injuries, then it would be appropriate for it to decide the issue as a matter of law." 162 Or App at 168.
We agree with that reasoning.
Plaintiffs argue that Woolston stands for the proposition that even obvious hazards must be considered within a scheme of comparative fault. The court there stated:
"Each party is held to the same standard of care with respect to common law negligence. Negligence is conduct falling below the standard established for the protection of others, or oneself, against unreasonable risk of harm. The standard of care is measured by what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.
"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.
"The invitee is required to exercise that same standard of care in avoiding harm from a condition of the premises of which he knows, or, in the exercise of that standard of care, of which he should know.
"Instructions to the jury should be framed in terms of that standard of care. The jury will thereby be enabled to determine whether any given party is at fault and if both are at fault to compare that fault as the statute commands. In determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party." 297 Or at 557-58 (citation omitted).
Plaintiffs contend that the Court of Appeals' holding is inconsistent with the foregoing directive. They assert that the Court of Appeals effectively held, as a matter of law, that there is no "causal link" when the invitee confronts a known or obvious danger. They contend that that ruling violates Oregon's comparative negligence statute.
Plaintiffs misunderstand the Court of Appeals' holding. The Court of Appeals did not make the kind of broad ruling that plaintiffs describe. Instead, the court concluded that, on the undisputed evidence in this case, there was no causal link between the county's failure to warn and the injuries that befell plaintiffs. That conclusion is well supported by the evidence that plaintiffs were fully aware of the danger presented by the drop-off and the lack of a barrier at the edge of the platform.
In the present case, the evidence on summary judgment establishes that the county's failure to warn did not expose plaintiffs to any greater risk of harm than if they had been warned. Plaintiffs testified at length at their depositions that they had used the transfer station before, that they knew of and always had been concerned about the drop-off and the lack of a protective barrier at the edge of the platform, and that they had discussed the importance of being careful not to fall. Given that testimony, no reasonable juror coul
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