An Oregon state appeals court has affirmed a trial court’s decision to allow a jury instruction in a case involving a spectator, who fell through the railing at an arena. The instruction ascribed the negligent acts of a staffing company to the corporation that owned an arena.
Plaintiff Tammy L. Matson was seriously injured when she fell approximately 40 feet from a railing enclosing the 300-level smokers lounge during a Portland Trail Blazers basketball game at the Rose Garden. She filed a complaint against Oregon Arena Corporation (OAC), the developer and owner of the arena, and Coast to Coast Event Services, Inc., the company that provided security services at the basketball game.
While the plaintiff and Coast to Coast settled before trial, the plaintiff filed an amended complaint, alleging that OAC “acted through its officers, employees, and agents, including Coast to Coast, who were at all times material herein acting within the course and scope of those relationships.”
The complaint listed nine specific allegations of negligence against OAC, including:
“a. In choosing not to post any warning signs in the east 300 level outdoor smokers lounge to protect customers from the risk and danger of falling from the bench-like platform to the ground level below, such as of the type posted in the similar 200 level ‘Preferred’ or ‘Club’ and the ‘Suite’ level outdoors smokers lounges directly below the east 300 level outdoor smokers lounge;
“b. In choosing not to have a window, wall, fence or some other barrier to prevent customers from falling from the bench-like platform in the east 300 level outdoors smokers lounge to the ground over forty feet below;
“c. In choosing not to have or implement adequate policies or procedures requiring its employees or agents 3 to look for customers sitting on the bench-like platform in the east 300 level smokers lounge and warn those customers not to sit there due to the dangers;
“d. In choosing not to have or implement adequate policies or procedures requiring its employees and other agents to inform OAC of repeated incidents wherein its personnel observed customers at The Rose Garden in potentially dangerous situations so that OAC could then take safety measures to protect its customers;
“e. In choosing to have moveable picnic tables in the east 300 level smokers lounge that could be used to access and sit on the bench-like platform;
“f. In choosing not to have adequate policies or procedures requiring its employees or agents to take reasonable steps to prevent the moveable picnic tables in the east 300 level smokers lounge from being used to access and sit on the bench-like platform;
“g. In having unsafe premises due to having a large horizontal concrete area directly behind part of the bench-like platform in the east 300 level smokers lounge, which tended to give an impression that the bench-like platform could safely be used for seating, that stops midway so that a portion of the bench-like platform does not have the horizontal concrete area behind it;
“h. In having nighttime lighting in the east 300 level smokers lounge that did not adequately illuminate the end of the large horizontal concrete area directly behind part of the bench-like platform, thereby making it unreasonably difficult to notice that only half of the bench-like platform had a large horizontal concrete area behind it; and
“i. In choosing not to use its video security surveillance system to have a surveillance camera adequately directed into the east 300 level smokers lounge, thereby failing to obtain information from that source about customers on the bench-like platform so that they could be protected from the risk of harm.”
At trial, the plaintiff proposed the following jury instruction: “Coast to Coast Event Services was the agent of the defendant Oregon Arena Corporation. Any negligence of Coast to Coast Event Services is the negligence of the defendant Oregon Arena Corporation.”
While OAC’s attorney objected to the jury proposed jury instruction, but the court would have none of it, even telling the jury “there’s the direct liability of OAC and then there’s the principal-agent liability as to Coast to Coast.”
The jury found that OAC was 50 percent at fault and the plaintiff was 50 percent at fault. The jury found that plaintiff had economic damages of $2,750,000 and noneconomic damages of $1,500,000. Accordingly, the court awarded the plaintiff damages of $2,125,000 (50 percent of the total damages found by the jury). OAC appealed.
OAC renewed the argument that it made to the trial court: “The jury should not have been instructed that any negligence of Coast to Coast is the negligence of OAC, because there were no pleadings to support independent negligence of Coast to Coast.
“The plaintiff responds that the court properly instructed the jury as to the legal effect of OAC’s delegation of responsibility to Coast to Coast as its agent. In addition, the plaintiff argues that the jury instruction was consistent with OAC’s theory of the case. We agree with the plaintiff.”
Tammy L. Matson v. Oregon Arena Corporation et al.; Ct.App.Ore.; A139601, 2011 Ore. App. LEXIS 643; 5/4/11
Attorneys or Record: (for appellant) James N. Westwood argued the cause. With him on the briefs were Stoel Rives LLP, and Schwabe Williamson & Wyatt, P.C., and Daniel F. Knox. (for respondent) Kathryn H. Clarke argued the cause. With her on the brief were Don Corson and Phillip C. Gilbert.
