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Coulter Property Management Inc. v. James12/17/1998
10 P2d 551 (1973) (stating the rule); Richards, 289 Or at 749 (applying the rule and stating that " e have previously stated that the principles announced in the Restatement of Torts (Second) reflect our views of the law governing the liability of a landlord to a tenant"). The Concurring opinion in Richards noted that the court's decision in Lapp predated the legislature's abolition of the doctrine of implied assumption of risk in 1975, that section 358 arguably "carries with it some of the trappings of implied assumption of risk[,]" and that, if it does, "this court could no longer analyze the liability of landlord to tenant under that section." Richards, 289 Or at 755 (Lent, J., Concurring). This case presents the issue posed by the concurrence in Richards.
As landlord's proffered instructions indicate, section 358 provides that, if tenant either knew or should have known that the railing presented a safety hazard, he would be barred from any recovery. See Lapp, 265 Or at 588 ("If the common law rules defining the lessor's duty are applicable, then the demurrer was properly sustained because the complaint alleges as the cause of injury a condition which would be known to plaintiff."). At a minimum, such a regime would revitalize the concept of contributory negligence, because a tenant is precluded from any recovery if the tenant knew or should have known either of the condition or the risk involved, even if the tenant's fault or negligence is less than the landlord's. ORS 18.470 precludes such a result. In other words, ORS 18.470 alters an "essential legal element assumed in the earlier case," Kaiser Foundation Hospitals, 306 Or at 59, i.e., the propriety of a liability scheme that includes contributory negligence as an element.
Two decisions of this court support our Conclusion. Nylander v. State of Oregon, 292 Or 254, 637 P2d 1286 (1981), involved a wrongful death action in which a personal representative alleged that the state negligently had failed to post warnings about the icy condition of a bridge. The trial court had instructed the jury that, if it found that the decedent either knew or reasonably should have known of the nature and extent of the danger, then the state had no duty to warn. Id. at 257. This court held the instruction erroneous, reasoning, in part, as follows:
"Although the instruction * * * asked the jury to consider what [the decedent] actually knew when she drove onto the bridge, it could well be understood to state a defense of implied assumption of the risk that was abolished by ORS 18.475. * * * Insofar as the instruction asked the jury to decide what she 'reasonably' should have known when she did so, it could be understood to state a defense of contributory negligence. But any contributory negligence on her part would be relevant only as 'comparative fault' under ORS 18.470, whether or not it is the kind of negligence that before ORS 18.475 was described as implied assumption of the risk." Nylander, 292 Or at 260 (citation omitted).
In Woolston v. Wells, 297 Or 548, 687 P2d 144 (1984), the plaintiff sought damages for injuries he sustained when he fell while ascending stairs to deliver a television to the landlord's tenant. The trial court instructed the jury on the basis of the Restatement (Second) of Torts, ยงยง 343(b) and 343(A)(l) (1965). Woolston, 297 Or at 551-52. Those sections provide, respectively:
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
"* * * * *
"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it * * *."
"A possesso
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