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Coulter Property Management Inc. v. James12/17/1998
r of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."
This court held both instructions invalid. The instruction based on section 343(b) "frustrate the purpose of instituting a system of comparative fault," 297 Or at 556, while the instruction based on section 343(A)(1) "introduce the concept of assumption of risk into the liability calculus," id. at 555. Tenant argues that section 358 "should suffer the same fate" as the Restatement sections at issue in Woolston. We agree.
One final point bears mentioning. We do not mean by our decision to state or imply that evidence of a tenant's actual or constructive knowledge is irrelevant to a landlord-tenant negligence action. Rather, as the court stated in Woolston: "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 558; see also id. at 559-61 (Peterson, C.J., Concurring) (emphasizing point). We hold only that a tenant's actual or constructive knowledge of a dangerous condition does not determine, as a matter of law, the nature or extent of a landlord's obligations to the tenant.
For those reasons, landlord was not entitled to have the jury instructed based on the instructions it proffered to the trial court, and the Court of Appeals' Conclusion to the contrary constituted error. See Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (refusal to give requested jury instruction is not error "if the requested instruction is not correct in all respects"). Because landlord did not except separately to the trial court's general foreseeability instruction as improper, we do not assess the propriety of that instruction in this case. Finally, because we conclude that the Court of Appeals erred in its interpretation of the RLTA, it should have considered tenant's cross-appeal concerning attorney fees. We express no view as to the merits of that issue.
The decision of the Court of Appeals is reversed, and the case is remanded to that court to consider petitioner's cross-appeal.
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