Wolff v. Padja, Inc. et al

Filing 48

ORDER: Finding as Moot Motion for Leave 36 ; Granting Motion for Summary Judgment 25 ; Granting Motion for Summary Judgment 27 . Please access entire text by document number hyperlink. Ordered and Signed on 01/20/2016 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

STEPHEN WOLFF, individually and as
Personal Representative ofthe Estate of
JUDITH WOLFF, deceased;

Case No. 1:14-cv-01466-CL

ORDER
Plaintiff;
V.

PADJA, INC, an Oregon corporation;
OREGON SHAKESPEARE FESTIVAL
ASSOCIATION, an Oregon nonprofit
corporation; MICHAEL DONOVAN,
DAVID TAUB, DOUGLAS YOLK, and
PARTICIA YOLK, individuals;
Defendants.

CLARKE, Magistrate Judge.
Plaintiff decedent, Judith Wolff, fell while attempting to pass through a doorway in the
Chateaulin Restaurant and Wine Shop ("Chateaulin"). She sustained injuries that allegedly
contributed to her eventual death. Mrs. Wolffs widower, Stephen Wolff, brings this premises
liability and wrongful death action against the owners and landlords of the at-issue building;
Michael Donovan and David Taub (collectively, the "Landlord Defendants"); and the former

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owners of Chateaulin; Padja Inc., Douglas Yolk, and Patricia Yolk (collectively, the "Chateaulin
1

Defendants"). Currently before the Court are Defendants' motions for summary judgment. For
the reasons stated below, both motions (#25, #27) are GRANTED.

PRELIMINARY EVIDENTIARY MATTERS
Plaintiff moves to strike Mrs. Wolff's purported statement, "[a] step is not a problem. I
can handle a step[,]" as inadmissible hearsay. The statement does not qualify as hearsay because
it is not offered for the truth of the matter asserted. FED. R. EvJ. 801 (c). Defendants do not
submit the statement to prove that there was a step or to establish that Mrs. Wolff could handle a
step. Rather, they offer the statement as evidence that Mrs. Wolff knew of the step's existence.
Additionally, because this action is brought on Mrs. Wolff's behalf by her estate, the Court finds
this statement to be admissible as an admission by a party opponent. FED. R. Evi. 801(d)(2); see
Kesey, LLC v. Francis, No. CY. 06-540-AC, 2009 WL 909530, at

* 18

n.17 (D. Or. Apr. 3,

2009), opinion adopted, No. CIY. 06-540-AC, 2009 WL 1270249 (D. Or. May 5, 2009), aff'd,
433 F.App'x 565 (9th Cir. 2011) (recognizing that other courts have admitted decedents'
extrajudicial statements in actions brought by their estates because the decedents were essentially
party opponents). For these reasons, Plaintiff's motion is denied. The Court notes that even if the
statement was stricken, its absence from the summary judgment record would not be outcome
determinative.
The Chateaulin Defendants move to strike all references to the first responders' note that
Mrs. Wolff "didn't see" the step. The statement is hearsay. It is an out-of-court statement
submitted to prove the truth of the matter asserted. FED. R. Evi. 801(c). Therefore, the Court
cannot consider it unless it falls within an exclusion or exception to the rule against hearsay. The
1

Plaintiff has dismissed (#45) its claims against the Oregon Shakespeare Festival. Therefore,
OSF's pending summary judgment motion is moot.
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most likely basis upon which this statement could be admitted is as a statement made for medical
diagnosis or treatment. Federal Rule of Evidence 803( 4) exempts statements made for medical
care from the rule against hearsay. The "critical inquiry" is whether the statements were made for
the purpose of, and are reasonably pertinent to, medical diagnosis or treatment. U.S. v. JDT, 762
F.3d 984, 1003 (9th Cir. 2014); FED. R. Evl. 803(4). Mrs. Wolffs statement that she "didn't see"
the step meets this standard. Mrs. Wolff was describing the nature of her fall to a medical
professional. Her assertion that she did not see the step is reasonably pertinent to the manner in
which she fell, the cause of her fall, and the medical care necessary to address her injuries. The
statement is not an inadmissible statement of fault. JDT, 762 F.3d at 1003 (statements offault are
not ordinarily admissible under the medical exception). It does not assign blame to any person or
entity. Defendants' motion to strike is, therefore, denied. Again, this statement's presence in the
record does not materially affect the Court's ruling on the pending summary judgment motions.

BACKGROUND
The Landlord Defendants are part owners of the building located on 50 E. Main Street in
Ashland, Oregon. Sweitzer Decl. Ex. 4. They leased the first f1oor of the building to the
Chateaulin Defendants. Sweitzer Decl. Ex. 6. The leased property was comprised of two separate
spaces. The Chateaulin Defendants operated a wine bar in one and a restaurant in another. Yolk
Decl.

~

4. Each space had its own front door. Yolk Decl.

~4.

The Chateaulin Defendants created

an interior doorway between the restaurant and wine bar during a 2010 remodeling project. Yolk
Decl.

~

5; Sweitzer Decl. Ex. 13, 1-2. Pursuant to their rental agreement, the Landlord

Defendants consented to the door installation on the condition that it was approved by the city.
Sweitzer Decl. Ex. 2, at 9; Ex. 5, at 8. The Landlord Defendants were not otherwise involved in

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the doorway's construction or design. Sweitzer Decl. Ex 2, at 9-10. The City, an architect, and an
engineer approved ofthe remodel. Sweitzer Dec!. Ex. 2, at 7; Ex. 13.
The building is situated on a slight hill. Pl.'s Resp., at 3. Because of the variation in
elevation between the wine bar and restaurant, the doorway had a single step down into the
restaurant. McLellan Dec!. Ex. C, at 9. The step was just over six inches high. McLellan Dec!.
Ex. A, at 3. The wine bar's flooring was black and white tile. Pl.'s Resp., at 4. The restaurant
was darkly carpeted. Pl.'s Resp., at 4. A gold plastic strip identified the flooring transition. Pl.'s
Resp., at 4. A red velvet rope hung across the passageway. Yolk Decl.

~

6. Guests were generally

not permitted to remove the rope or use the passageway without assistance. Yolk Dec!.

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7. The

restaurant was more dimly lit than the wine bar. Wolff Dec!.~ 6; Tran-Caffee Dec!. Ex. 3, at 11.
Chateaulin employees received on-the-job training regarding how to handle customers
who entered on one side of the property but wanted to patronize the other. Yolk Dec!.

~

8. They

were trained to recommend that the guest exit through the front door and re-enter the property
through the other door. Yolk Dec!.

~

8a. If the guest asked to use the interior passage, or if the

guest was transitioning to one space after spending a period of time in the other, staff would
warn the guest of the step, escort the guest to the passageway, remove the rope, offer assistance,
and then replace the rope. Yolk Decl.

~

8b.

On September 16, 2011, Mrs. Wolff entered the wine bar. Sweitzer Dec!. Ex. 3. She was
using a walker. Wolff Dec!. ,[ 2. A Chateaulin employee, Ross Williams ("Williams"), greeted
Mrs. Wolff. Sweitzer Dec!. Ex. 3. He explained that her dinner reservation was for the restaurant
next door. Sweitzer Dec!. Ex. 3. He suggested that she exit the wine bar and enter the
restaurant's front ramped entrance. Sweitzer Dec!. Ex. 3. Mrs. Wolff asked if she could use the
interior passageway instead. Sweitzer Dec!. Ex. 3. Williams told her that she could, but noted

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there was a "big step." Sweitzer Decl. Ex. 3. Williams states that Mrs. Wolff said a step was not
a problem, and moved toward the doorway. Sweitzer Decl. Ex. 3. He describes her demeanor as
"confident, insistent, and dismissive to my suggestion of using the ramp." Sweitzer Decl. Ex. 3.
Williams opened the velvet rope and Mrs. Wolff attempted to move through the doorway.
Sweitzer Decl. Ex. 3. Only the first two legs of Mrs. Wolff's walker made it over the step.
McLellan Decl. Ex. D, at 3. The back two remained tilted on the wine bar's higher floor.
McLellan Decl. Ex. D, at 3. Mrs. Wolff fell forward and hit her head. McLellan Decl. Ex. D, at

"

.).

There is some dispute regarding whether Mrs. Wolff saw the doorway's step. Williams
testifies that Mrs. Wolff "picked up her walker to attempt to put it down on the second level."
McLellan Decl. Ex. D, at 3. This statement suggests that Mrs. Wolff perceived the step and was
attempting to navigate over it. Conversely, a first responder's report notes that Mrs. Wolff "fell
forward down a step she didn't see[.]" Tran-Caffee Decl. Ex. 1, at 1.

STANDARD
Summary judgment is appropriate if "the movant shows there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." FED. R. Civ. P.
56( a). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party bears the initial burden of establishing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986); Devereaux v. Abbey, 263
F.3d 1070, 1076 (9th Cir. 2001). An issue of fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the moving party fulfills its burden, the burden shifts to the

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non-moving party who must go beyond the pleadings to identify genuine issues of fact. Celotex
~'

477 U.S. at 324. Conclusory allegations, unsupported by factual material, are insufficient

to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Instead, the opposing party must, by affidavit or as otherwise provided by FED. R. CIV. P. 56,
designate specific facts that show a genuine issue for trial. Devereaux, 263 F.3d at 1076.
The court must view the evidence in the light most favorable to the nonmoving party.
Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011 ). All reasonable doubt as to the
existence of a genuine dispute of material fact should be resolved against the moving party.
Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be
drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638
F.2d 136, 140 (9th Cir. 1981 ). However, facts must be "viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S.
372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no 'genuine issue for trial."' Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
Oregon law governs this diversity action. Maricopa County of State of Arizona v.
Maberry, 555 F.2d 207, 210 (9th Cir. 1977) ("It is hornbook law that a federal court in a
diversity case must follow the substantive law of the state where the incident occurred."). Under
Oregon premises liability law, the duty that a proprietor owes to an entrant depends on whether
the entrant is an invitee, licensee, or trespasser. Walsh v. C & K Market, Inc., 171 Or.App. 536,
539 (2000). There is no dispute that Mrs. Wolff qualified as a business invitee. See Parker v.
Hull Lumber & Plywood Co., 260 Or. 1, 8 (1971) (defining "invitee" as "one who comes upon

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the premises at the occupier's invitation, express or implied, upon business which concerns the
occupier"). Accordingly, Defendants had a duty to make their property reasonably safe, exercise
due care to discover unsafe conditions, and either eliminate or warn of identified risks. Hughes v.
Wilson, 345 Or. 491, 497 (2008) ("The common law imposes a general, nondiscretionary duty
on landowners to make their property reasonably safe for their invitees."); Woolston v. Wells,
297 Or. 548, 557-58 (1984) (the possessor of land must exercise care "to discover conditions of
the premises that create an unreasonable risk of harm to the invitee" and either eliminate the
condition creating the risk or warn invitees of the risk so they can avoid the harm).

I.

Chateaulin Defendants' Motion for Summary Judgment (#27)
The Chateaulin Defendants move for summary judgment on two bases. First, they

contend that they cmmot be held liable for the step because it did not present an unreasonable
risk of harm. Oregon premises liability law only imposes a duty of care for those conditions that
pose an unreasonable risk to entrants. Hagler v. Coastal Farm Holdings. Inc., 244 Or.App. 675,
681 (2011) affd. 354 Or. 132 (2013) (a defendant property owner is entitled to summary
judgment if a reasonable trier of fact could not find the complained-of condition created an
unreasonable risk of harm). Without more, a step does not qualify. Glorioso v. Ness, 191
Or.App. 637, 644-45 (2004). A step must exhibit additional characteristics, like slipperiness or
bad lighting, in order to trigger the standard of care. ld. Plaintiff argues that multiple collateral
conditions; including dim lighting, deceptive flooring, and a distracting environment; rendered
the at-issue step unreasonably dangerous. Defendant disagrees. A jury must sort through this
factual dispute. Summary judgment is not appropriate on this basis.
Second, even assuming the step was unreasonably risky, the Chateaulin Defendants argue
that no reasonable trier of fact could conclude that they failed to exercise due care in relation to

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it. In order to avoid liability, a possessor of property must either eliminate or warn of any
unreasonable hazards on its premises. Woolston, 297 Or. at 558. The Chateaulin Defendants
contend that they satisfied this duty by warning invitees, including Mrs. Wolff, of the step with
visual cues and oral statements. They deterred patrons from using the passageway by hanging a
velvet rope across it. There was an obvious change in flooring between the two spaces. The
Chateaulin Defendants installed a flooring strip to highlight the step. They trained employees to
discourage use of the passageway and to explicitly warn patrons of the step. Williams testified
that he followed that training, and suggested that Mrs. Wolff use a different entrance because the
interior passageway had a "big step." Sweitzer Decl. Ex. 3.
Plaintiff asserts that there is a genuine issue of material fact regarding whether Williams
verbally warned Mrs. Wolff. First, Plaintiff claims that Williams' testimony is contradicted by
the first responders' note that Mrs. Wolff did not see the step. Viewed in the light most favorable
to the non-movant, the Court finds the first responders' note raises a genuine issue regarding
whether Mrs. Wolff perceived the step, but does not conflict with Williams' statement that he
warned her of its presence. A person may receive notice of a condition and nevertheless fail to
see it. Next, Plaintiff suggests that Williams' testimony has changed over time. The Court
disagrees. Though Williams' deposition testimony was more extensive than the statement he
drafted at the time of the incident, his story remained the same. Third, Plaintiff questions the
veracity of Williams' testimony, and alleges that he might be biased given his role as "the one
person who could have prevented the fall(.]" Pl.'s Resp., at 16. Because the Court cannot make
credibility determinations at this stage of litigation, Plaintiff asserts summary judgment is not
appropriate. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987). However, summary judgment is only improper where credibility "is at issue." S.E.C. v.

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Koracorp Indus., Inc., 575 F.2d 692, 699 (9th Cir. 1978). Plaintiffs bare assertion of bias is
insufficient to create a triable issue of fact. T. W. Elec. Serv., Inc., 809 F.2d at 630 ("[T]he
nonmoving party may not merely state that it will discredit the moving party's evidence at trial
and proceed in the hope that something can be developed at trial in the way of evidence to
support its claim."). Plaintiff mounts no direct evidence to contradict Williams' testimony or to
otherwise impeach his credibility. In the absence of probative evidence of bias, Plaintiff has
failed to raise a genuine issue of material fact. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983) ("[N]either a desire to cross-examine an
affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary
judgment."). Summary judgment is not precluded.
In any event, Plaintiff argues a trier of fact must assess the sufficiency of Williams'
warning. A warning is adequate only if it informs the invitee of "both the hazardous condition
and the risk posed by that condition." Nelsen v. Nelsen, 174 Or.App. 252, 259 (2001). The
Oregon Court of Appeals found a warning did not meet this standard in Nelsen, 174 Or.App. at
261. There, the defendant spread smooth plastic on the ground just outside of her house to
protect it from paint spills. Id. at 255. There was a shmi step from the house to the ground
outside. The defendant invited the plaintiff to view her paint job, and said "watch your step" as
the plaintiff walked outside. The plaintiff slipped on the plastic and fell. The Oregon Court of
Appeals held a reasonable juror could find that "watch your step" was an inadequate warning
because it did not identify the hazardously slick plastic on the ground below the step. Id. at 259.
The present case is distinguishable from Nelsen. First, in Nelsen, 174 Or.App. at 259 n.5,
there was "no evidence that [the] defendant took any action to make the condition safe."
Dissimilarly, the Chateaulin Defendants took multiple precautions beyond warning Mrs. Wolff.

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As detailed above, they blocked, marked, and trained employees about the step. Second, unlike
Nelsen, where the defendant warned of one condition and the plaintiff slipped on another,
Williams warned of the same "big step" that Mrs. Wolff fell over. Plaintiff does not allege the
presence of any additional tripping hazards that Williams failed to mention. Third, whereas the
defendant in Nelsen said "watch your step" as the plaintiff was moving through the doorway,
Williams notified Mrs. Wolff of the step before she was near it. Id. at 255. Given this delay,
Plaintiff argues there is a genuine issue of fact regarding whether Williams adequately informed
Mrs. Wolff of the step's precise location. The Court notes that the timing and location of the
warning in Nelsen was not necessarily preferable. Indeed, the Nelsen plaintiff testified that it
came too late for her to take preventative action. Id. Williams gave Mrs. Wolff sufficient time to
appreciate the risk posed by the step and alter her course, if necessary. Considered in context,
Williams' warning was not imprecise. Mrs. Wolff asked to use the doorway against Williams'
recommendation. He told her that she could but that there was a "big step." Visual cues including the change in flooring, transition strip, and velvet rope -

highlighted the step's

presence in the discussed doorway. On these facts, no reasonable juror could find that Williams'
warning was inadequate to inform Mrs. Wolff of the step or the tripping hazard that it posed.
Finally, Plaintiff asserts the Chateaulin Defendants were obligated to do more than warn.
Where evidence supports the finding that a condition "could not be encountered with reasonable
safety even if the danger was known and appreciated by the invitee," a warning is not enough.
Vandeveere-Pratt v. Portland Habilitation Ctr., Inc., 242 Or.App. 554, 557 (2001) (quoting
Oregon Civil Jury Instruction 46.09). For example, the Oregon Court of Appeals found a wet
floor that was "almost as slippery as ice" qualified as a condition that invitees could not navigate
safely despite a warning. Id. at 561. In such circumstances, the possessor of the premises "must

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take reasonable and feasible steps to eliminate the danger." Id. at 557. The summary judgment
record does not support the application of this heightened standard of care. There is no evidence
from which a jury could find that the step was unreasonably hazardous. Put differently, there is
no evidence that any "hazard arising from [the step] would not be known and understood by
reasonable persons expected to encounter [it]." Maas v. Willer, 203 Or.App. 124, 127 (2005).
For all these reasons, summary judgment is appropriate.
II.

Landlord Defendants' Motion for Summary Judgment (#25)
The Landlord Defendants assert that they are entitled to summary judgment because they

had no control over their tenant's creation of the step, and reasonably relied on their tenant to
protect its patrons. Under Oregon law, a commercial landlord may be held liable for reasonably
foreseeable injuries sustained by its tenant's invitees arising from "known or reasonably
knowable conditions antedating the lease." 2 Walsh v. Spalding & Son, Inc., 216 Or.App. 55, 64
(2007). This is true unless, under the totality of the circumstances, the lessor reasonably expected
its tenant would remedy the defect or otherwise safeguard its invitees. Id.
Whether a landlord has control over a condition sufficient to trigger liability is
determined by assessing the landlord's "ability to decide whether to rent or lease a property to a
tenant in the first place, whether to renew a lease or a periodic tenancy, or whether to terminate a
tenancy at will or other tenancy that the landlord is able to terminate unilaterally." Park v.
Hoffard, 315 Or. 624, 631-32 (1993). Here, the Chateaulin Defendants began the process of
designing and installing the at-issue doorway months before the lease was assigned to them.
2

At oral argument, the Landlord Defendants asked the Court to apply the liability standard set
forth in Park v. Hoffard, 315 Or. 624, 632 (1993). There, the Oregon Supreme Court held, in
pertinent part, that a landlord may be liable for a tenant's dangerous activity if the landlord had
reason to know the activity would "unavoidably involve an unreasonable risk of harm to persons
off the rental property." Id. The standard is not applicable to the present action which involves an
invitee injured by a condition on the premises.
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Sweitzer Dec!. Ex. 12; Ex. 13, at 2. The Landlord Defendants had the opportunity to terminate
negotiations with the Chateaulin Defendants because of their remodel. The Landlord Defendants'
failure to do so can properly be viewed as implied consent to the step's creation. Therefore, the
Landlord Defendants may be held liable for reasonably foreseeable injuries sustained from the
step unless, under the totality of the circumstances, they reasonably relied on the Chateaulin
Defendants to protect their invitees from such injuries. Spalding & Son, Inc., 216 Or.App. at 64.
Typically, the trier of fact must sort through this question of reasonableness. ld. However, here,
the same undisputed evidence that shows the Chateaulin Defendants satisfied the standard of
care also supports the Landlord Defendants' summary judgment motion. The Chateaulin
Defendants mitigated the step's risks, controlled patrons' use of the step, and warned patrons
about the step. Under these circumstances, no reasonable trier of fact could conclude that the
Landlord Defendants were wrong to rely on their tenant to safeguard its patrons. Jensen v.
Meyers, 250 Or. 360, 365 (1968) (finding a "lessor should not be liable" where its tenant had the
opportunity to render the condition harmless, warn guests of the danger, and exercise control
over the premises).

ORDER
For the reasons stated above, the Landlord Defendants' motion (#25) and the Chateaulin
Defendants' motion (#27) are GRANTED. This ruling moots the Chateaulin Defendants' motion
(#36) for leave to amend their answer.

United States Magistrate Judge
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