289 OR 747 - Richards v. Dahl

LENT, J.,

¶1concurring.

¶2I concur in the majority opinion but wish to add two thoughts not covered therein.

¶3My recollection is, and my notes show, that one of the reasons we allowed review in this case was because of a general impression shared by the members of this court that trial courts were overusing summary judgment procedure in disposing of actions for damages for alleged negligence.1 Given our opinion in Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 783 (1970),2 which indicates that this court believes that it is the rare negligence case which should be taken from the jury to hold for either plaintiff or defendant as a matter of law, I believe a trial judge should be just as cautious in disposing of negligence cases by summary judgment without jury intervention as the judge must be at the close of evidence in a jury *755trial. This court has so held in Uihlein v. Albertson’s, Inc., 282 Or 631, 580 P2d 1014 (1978). Since my recollection is that that belief was shared by other members of the court and served as one of the bases for allowing review, I had hoped that the opinion of the court would address that matter.

¶4I write separately, also, to express a caveat. The court notes that in Lapp v. Rogers, 265 Or 586, 588, 510 P2d 551 (1973), this court adopted the principles of 2 Restatement (Second) of Torts, § 358. Since that case was decided, the legislature has abolished the "doctrine of implied assumption of the risk.” ORS 18.475(2); Or Laws 1975, ch 599, § 4. This court is not faced in this case with determining whether § 358 carries with it some of the trappings of implied assumption of risk. If it does, I do not understand that the court, by the reference to that section, intends to diminish the effect of that legislative abolishment by the decision in this case. Compare the back door intrusion of assumption of risk embodied in 2 Restatement (Second) of Torts, §§ 343 and 343A. See Shepler v. Weyerhaeuser Company, 279 Or 477, 495, 569 P2d 1040 (1977). I do not at this point take a position that § 358 does introduce the concept of assumption of risk; I merely express the opinion that it is arguable that the section does that. If it does, it seems clear to me that this court could no longer analyze the liability of landlord to tenant under that section.

¶5 An examination of the record on appeal in this case discloses that the trial judge did not yield to any temptation to dispose of this case in a manner requiring less judicial time than a trial would, for he obviously spent many hours in arriving at decision.

¶6 We have since indicated the continuing vitality of the policy espoused in Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 783 (1970), in several decisions: Allen v. Shiroma/Leathers, 266 Or 567, 514 P2d 545 (1973); Fred Meyer, Inc. v. Temco Met. Prod., 267 Or 230, 516 P2d 80 (1973); Sabolish v. Playland Shows, Inc., 267 Or 339, 516 P2d 1271 (1973); Cutsforth v. Kinzua Corp., 267 Or 423, 517 P2d 640 (1973); McEwen v. Ortho Pharmaceutical, 270 Or 375, 528 P2d 522 (1974); Kirtland v. Davis, 276 Or 613, 555 P2d 1262 (1976); Jacobs v. Tidewater Barge Lines, 277 Or 809, 562 P2d 545 (1977); Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 566 P2d 509 (1977); Thomas v. Inman, 282 Or 279, 578 P2d 399 (1978) Uihlein v. Albertson’s, Inc., 282 Or 631, 580 P2d 1014 (1978); Kirby v. Sonville, 286 Or 339, 594 P2d 818 (1979); Welch v. U.S. Bancorp, 286 Or 673, 596 P2d 947 (1979); and Arp v. Kerrigan, 287 Or 73, 597 P2d 813 (1979). See, also, Vetri, "Tort Markings: Chief Justice O’Connell’s Contributions to Tort Law,” 56 Or L Rev 235, 238 to 242.