Rex v. Albertson's Inc.6/13/1990
COURT OF APPEALS OF OREGON
CA No. A60733
1990.OR.40901 ; 102 Or. App. 178; 792 P.2d 1248
June 13, 1990
BILLIE J. REX, APPELLANT,
v.
ALBERTSON'S, INC., RESPONDENT
Appeal from Circuit Court, Coos County. Richard L. Barron, Judge. No. 88CV-1117.
Alexander A. Wold, Jr., Eugene, argued the cause for appellant. With him on the brief was Dwyer, Simpson & Wold, P.C., Eugene.
Daniel M. Spencer, Coos Bay, argued the cause for respondent. With him on the brief were William A. McDaniel and Foss, Whitty, Littlefield & McDaniel, Eugene.
In Banc. Graber, J. pro tempore. Edmonds, J., dissenting. Rossman and Newman, JJ., join in this dissenting opinion.
Graber
In this personal injury action, plaintiff alleged that she was injured when she fell after slipping in defendant's grocery store. The trial court granted defendant's motion for summary judgment. ORCP 47 C. Plaintiff appeals, and we affirm.
Plaintiff slipped and fell on a blueberry that was on the tile floor of the produce section of defendant's store. The berry was 20 to 25 feet away from the display table, where berries were arranged in small, uncovered baskets. Defendant's produce manager testified that employees swept the produce area about every half hour if needed and that, for "safety reasons," the store put mats on the floor in front of displays of "loose" produce, such as blueberries. The store used the mats, because small fruit "could fall off, hit the ground." The manager said that he had swept the area where plaintiff fell about 10 to 15 minutes before the incident and that he did not see the berry then.
Plaintiff conceded that defendant did not place the berry on the floor, that defendant had no actual notice of it, and that she could not prove that the berry had been there for so long that defendant should, in the exercise of reasonable diligence, have discovered and removed it, because the length of time that it had rested there was "unknown and unprovable." The trial court granted summary judgment, holding that there was no issue of fact as to whether defendant had actual or constructive notice of the presence of the berry on the floor.
Relying on Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), plaintiff argues that the court should not have granted summary judgment, because a
"jury could find that defendant should have taken additional measures to ensure that the fruit would not fall on the floor * * * namely, by wrapping the small fruit in cellophane or other wrapping. * * * The issue is not notice, but the reasonability of defendant's conduct in dealing with a known risk."
We observe at the outset that Fazzolari did not supplant existing case law concerning premises liability. The obligations of a storekeeper to a customer create a "special relationship" that
takes the claim out of the general standards of common law negligence. Thompson v. Klimp, 101 Or App 127, 130, 789 P2d 696 (1990); Van Den Bron v. Fred Meyer, Inc., 86 Or App 329, 331 n 1, 738 P2d 1011 (1987); but see Bellikka v. Green, 306 Or 630, 640, 762 P2d 997 (1988); U.S. National Bank of Oregon v. Zellner, 101 Or App 98, 789 P2d 670 (1990).
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