# Wilk v. Georges > Oregon Supreme Court · October 4, 1973 · 267 Or. 19 URL: https://www.frixlaw.com/law-library/cases/9633136 ## Case - **Full name:** WILK, Appellant, v. GEORGES, Respondent - **Court:** Oregon Supreme Court - **Decided:** October 4, 1973 - **Citations:** 267 Or. 19; 514 P.2d 877; 1973 Ore. LEXIS 266 - **Precedential status:** Published - **Opinion:** Dissent by Denecke - **Judges:** O'Connell, McAllister, Denecke, Holman, Howell, Bryson - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633136 ## Opinion text DENECKE, J., dissenting. The distinctions in this area of the law are hazy; *28 however, I am of the opinion that they are sufficiently discernible in this case to require me to dissent. We are dealing with cases in which the common factor is a dangerous condition on defendant’s premises which is obvious to an invitee who is looking. These cases, however, must be divided into two snbcategories. The 2 Eestatement (Second), Torts, 218, § 343 A, and 2 Harper and James, The Law of Torts, 1489, $ 27.13 (1956), clearly make such a division. Harper and James wrote: “On the other hand, the fact that a condition is obvious- — i.e., it would be clearly visible to one whose attention was directed to it- — does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk, an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his faculties, is told to ‘watch his step’ or ‘step up’ at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendant’s negligence. Here again, plaintiff’s recovery would be prevented by that fact no matter how careful he was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.” 2 Harper and James, The Law of Torts, supra, at 1491-1493. *29 Comment f. of the 2 Restatement (Second), 220, § 343 A, describes this subcategory: “There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of tire duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm. “Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. * * In this category of cases an adequate warning satisfies the occupier’s duty of due care because the defendant cannot reasonably anticipate that with an adequate warning the plaintiff will, nevertheless, suffer harm. Harper and James described the other category of cases as follows: “In the second line of cases the condition of danger is such that it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his knowledge is not likely to be a protection against *30 danger. It is in these situations that the bite of the Restatement’s ‘adequate warning’ rule is felt. [Changed in Restatement (Second)]. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such a precaution •is still unreasonably great. * * 2 Harper and James, supra, at 1493. The Restatement describes these cases: “* * * Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. * * 2 Restatement (Second) Torts, supra, at 220. Dawson v. Payless for Drugs, 248 Or 334 , 433 P2d 1019 (1967), and Bertrand v. Palm Springs, 257 Or 532 , 480 P2d 424 (1971), are in this second category. The plaintiffs in both cases knew of the danger; therefore, a warning would have been superfluous. A jury could find the defendant liable because it should have anticipated that despite knowledge of the danger the plaintiff, nevertheless, would encounter the danger. Pribble v. Safeway Stores, 249 Or 184, 190-192 , 437 P2d 745 (1968), could fall in either of the categories, depending upon what facts the jury found. Plaintiff did not observe the condition although it may have been obvious. The jury could have found that a warning may have sufficed or it could have found the danger could not “be encountered with reasonable safety even if the danger is known and appreciated.” Harper and James, supra, at 1493. If it found the latter, then a warning would not suffice. In Pribble we reversed because the jury was not permitted to pass *31 up on these questions as the trial court granted a nonsuit. I consider the present case to he in the same class as Pribhle. The plaintiff testified she did not see the dangerous condition. The jury could have found that if the dangerous condition had been brought to plaintiff’s attention that would have sufficed to fulfill the defendant’s duty. The jury could have found the danger was such it could not be encountered with safety despite the danger being actually brought to the attention of plaintiff, in which case a warning would not have been sufficient. The jury usually determines whether it is in one class or the other. In Dawson, Bertrand and Pribble we held, in effect, that these were questions for the jury. Following this reasoning the trial court was correct in instructing that if the owner should anticipate that the dangerous condition would cause harm, the owner had a duty to “correct or warn.” To instruct that the owner could fulfill its duty only by correcting the defect would amount to holding as a matter of law that bringing the dangerous condition to plaintiff’s attention was not sufficient. In my opinion, on this basis of the evidence in this case, this should not be decided as a matter of law. The instruction given did not sufficiently elaborate upon when the defendant could fulfill his duty by an adequate warning and when he only could fulfill his duty by correcting the defect; however, the only exception taken was that the instruction was incorrect because it instructed that the defendant possibly could fulfill his duty by warning plaintiff of the danger. The plaintiff excepted: “I would also take exception to the court failing *32 to give plaintiff’s requested instruction No. 11 in the form requested. You did give that in a modified form, and in that instruction you included a requirement which in effect would leave the defendant off the hook if they warned the customers of the dangerous condition; either they correct or warn. “It is my interpretation of the Dawson and Bertrand cases that they — if the land owners can reasonably anticipate that the dangerous condition will cause harm to somebody coming on the land, then the land owner has a duty to either remove of alleviate the dangerous condition. This being the situation even if the plaintiff knew, or the customer knew of the dangerous condition. " * * * * “Under certain circumstances I do feel that a warning by the defendant would accomplish nothing and wouldn’t satisfy his legal duties under those eases,'so I except to that instruction.” Plaintiff’s requested instruction, number 11, referred to in plaintiff’s exception, similarly explains that the plaintiff’s position is that a warning cannot, under any of the evidence in this case, be adequate to fulfill' defendant’s duty. The requested instruction was: “If a person coming on to the premises knows or should have known of a dangerous condition, this, by itself, would not relieve the landowner from taking whatever precautions are reasonably necessary for the safety of such person. If the landowner ' could reasonably expect that the dangerous condition could cause one coming on the land to suffer harm,.even if such person.knows or should know of the dangerous condition, the landowner then has the. duty tp rempve or ameliorate the dangerous condition.” I would affirm. Bryson, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633136. Public record. Not legal advice.