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Mark v. Hutchinson2/1/1995
either knew of the oil or that it had been there for so long that defendant should have discovered and removed it. Plaintiffs point particularly to: (1) Mark's testimony about the blue-green rings on a puddle where he fell; (2) Mark's testimony that, when he fell, his arm became stained with an oily substance that could not be removed with soap and water, but only with alcohol; (3) Jean Mark's testimony that there was oil on the ground in the area where her husband fell; and (4) defendant's admission that it was possible that customers' cars could leak oil on the premises and that he and his employees had used kitty litter to clean up past oil spills.
Plaintiffs presented no direct testimony that defendant or his employees actually knew of the alleged foreign substance. Nor did plaintiffs' evidence support a reasonable inference of actual knowledge. Thus, the inquiry reduces to whether the evidence supported a reasonable inference that oil had been present for so long that defendant, in the exercise of reasonable diligence, should have discovered it and removed it. We conclude that it did not.
The blue-green rings in the nearby puddle and the fact that the oily substance on Mark's arm could be removed
only with alcohol do not establish how long those substances had been present. In particular, plaintiffs adduced no evidence pertaining to the time it takes for oil to form rings in water or to how the adhesive properties of certain "black and oily substances" vary with time under the conditions present on defendant's premises at the time of the accident. Similarly, although Jean Mark testified that there was oil near where her husband fell, that testimony went merely to the presence, and not the duration of the presence of the foreign substance. Finally, defendant's admission that there had been oil spills on his premises previously did not, without more, support a reasonable inference that this substance had been present for so long that defendant should have discovered and removed it. Thus, the trial court did not err in striking the references to oil from plaintiffs' allegations of negligence.
Finally, plaintiffs contend that the trial court erred when it omitted the terms "refuse and gas" from its summary of issues in instructing the jury. Because plaintiffs failed to specifically except to the instruction, the error, if any, is not preserved for our review. See ORCP 59H; see also Garrett v. Olsen, 71 Or.App. 93, 95-96, 691 P.2d 123 (1984).
Affirmed.
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