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Reed v. Jackson County12/26/1990
COURT OF APPEALS OF OREGON
CA No. A63039
1990.OR.40031 ; 105 Or. App. 24; 803 P.2d 1194
December 26, 1990
MARION ADELINE REED, APPELLANT,
v.
JACKSON COUNTY, RESPONDENT
Appeal from Circuit Court, Jackson County. Loren L. Sawyer, Judge. No. 89-0651-L-2.
Kelly L. Andersen, Central Point, argued the cause for appellant. With him on the briefs was Richardson & Andersen, P.C., Central Point.
L. Lee Ferguson, Medford, argued the cause for respondent. With her on the brief was Cowling and Heysell, Medford.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Richardson
Plaintiff appeals from the summary judgment for defendant county in this personal injury action. We reverse.
Plaintiff was injured while on her way to the county fair. She parked her car at a shopping center, where she caught a shuttle that was to take passengers to the fairgrounds. Because traffic was backed up on Penninger Road, which is owned by the county and serves as an access road to the fairgrounds, the shuttle driver allowed passengers who so chose to disembark and walk approximately one-quarter mile on Penninger Road to the fairgrounds. Plaintiff cut her foot on a bent and jagged reflector post during her walk on the road. She brought this action, alleging, inter alia, that the county was negligent in failing to warn invitees of the dangerous condition and that it knew or in the exercise of reasonable care should have known about the condition.
The trial court allowed the county's summary judgment motion. It concluded that plaintiff was a licensee rather than an invitee, that the county's only duty to her was to warn of known concealed defects and that there was nothing in the evidence submitted by the parties to show that the county was aware of the defective reflector post.
Plaintiff contends, first, that the trial court erred by concluding that she was a licensee. She argues that she was walking on a county road on her way to the county fair and that she was therefore the county's invitee. In Baker v. Lane County, 28 Or App 53, 558 P2d 1247 (1977), the most analogous case on which plaintiff relies, we held that a boy who was injured after wandering to a part of the county fairgrounds other than the one used for the supervised activity in which he was participating was nevertheless an invitee rather than a trespasser. We held that he came within the second of two tests used to determine whether a person is an invitee:
"The first test, known as the economic-benefit theory, accords invitee status upon one who enters premises upon business which concerns the occupier, with the occupier's express or implied assent. Rich v. Tite-Knot Pine Mill, [245 Or 185, 421 P2d 370 (1966)]. The second test, known as the invitation test, would term a person an invitee
"'* * * if the occupier, expressly or impliedly, has led such person to believe that the premises were intended to be
used by visitors for the purpose which plaintiff is pursuing and that such use was not only acquiesced in by the occupier but was in accordance with the intention or design with which the place was adapted and prepared * * *.' Parker v. Hult Lumber & Plywood Co., 260 Or 1, 8, 488 P2d 454 (1971).
See also W. Prosser, Law of Torts ยง 61 (4th ed 1
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