FILED: December 27, 2000

ANN N. WALSH,

Appellant,

v.

C & K MARKET, INC.,
an Oregon corporation,

Respondent.

Appeal from Circuit Court, Curry County.

Hugh Downer, Judge.

Argued and submitted May 18, 2000, Klamath Falls.

George W. Kelly argued the cause and filed the brief for appellant.

Robert E. Bluth argued the cause for respondent. With him on the brief was Bluth & Billin, P. C.

Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

EDMONDS, P. J.

Reversed and remanded.

EDMONDS, P. J.

Plaintiff seeks damages for injuries that she suffered when the automatic doors at defendant's grocery store malfunctioned and hit her as she was entering. She appeals from a judgment that the trial court entered after granting defendant's motion for a directed verdict at the close of plaintiff's evidence. (1) ORCP 60. The trial court held that plaintiff was a licensee at the time of her injury rather than an invitee, as she had alleged. We reverse.

Because we are reviewing a directed verdict, we state the facts most favorably to plaintiff, the losing party. Defendant operates Ray's Food Store in Harbor, Oregon. Plaintiff lives near the store and shops at it five or six times a week. On November 23, 1996, she went to the store with a friend, who intended to deliver a videotape to a store employee. Plaintiff did not intend to purchase anything on this particular visit. While plaintiff was entering the store, the automatic doors closed on her, causing the injuries in question. There is evidence from which the jury could conclude that defendant knew that the doors frequently malfunctioned, that defendant was negligent in not permanently fixing the malfunction, and that plaintiff's injuries were the result of that negligence.

In her complaint, plaintiff alleges that she was an invitee of defendant at the time of her injury. In its original answer, defendant admitted that allegation; however, in an amended answer filed ten days before trial, it changed the admission to a denial. After plaintiff rested, defendant moved for a directed verdict on the ground that plaintiff was only a licensee rather than an invitee, as she had alleged. Defendant emphasized that plaintiff did not intend to shop or to purchase anything when she entered the store at the time of the injury. Rather, defendant argued that plaintiff was simply going to visit its employee and that that employee was not a manager and did not otherwise have any authority to invite her into the store on defendant's behalf. The trial court granted the motion. (2)

Oregon adheres to the traditional rules governing the liability of an owner or possessor of land, under which the duties that the occupier owes to a person who comes on the land depend on whether the person is an invitee, licensee, or trespasser. The occupier owes the greatest duties to an invitee, including both a duty to warn of latent dangers and an affirmative duty to protect the invitee against dangers in the condition of the premises about which the occupier knows or should reasonably have known. Rich v. Tite-Knot Pine Mill, 245 Or 185, 192, 421 P2d 370 (1966). Oregon has adopted two tests for determining whether a person is an invitee. Under the first, the "economic advantage" test, anyone who comes on the premises for business that concerns the occupier, with the occupier's express or implied invitation, is an invitee. Id. at 191-92; Reed v. Jackson County, 105 Or App 24, 26-27, 803 P2d 1194 (1990), rev den 311 Or 261 (1991). Under the second, the "invitation" test, a person is an invitee when the occupier, expressly or impliedly, leads the person to believe that it intended visitors to use the premises for the purpose that the person is pursuing and that the use was in accordance with the intention or design for which the premises were adapted or prepared. Parker v. Hult Lumber & Plywood Co., 260 Or 1, 8, 488 P2d 454 (1971); Reed, 105 Or App at 26-27.

Restatement (Second) of Torts