A motorcycle accident victim may proceed with his lawsuit against a property owner – though not a real estate agent – after state high court justices ruled against trial court assertion that the rider was 100 percent responsible for his injuries.
The case, Towe v. Sacagawea Inc., was weighed recently by the Oregon Supreme Court, and it’s somewhat unique from most motorcycle cases in that it occurred on a private road allowed for accesses to several pieces of private property. That means it’s framed as a premises liability case (i.e., failure to keep the property in reasonably safe condition) as opposed to one of auto negligence.
But Florida has its fair share of private access roads too, and we also have motorcycle riders year-round, so this is a case worth examining.
According to court records, one of the private property owner defendants in the case put a cable across the point at which the road diverged onto their property. The idea was to prevent entrance to a quarry that was at the end of that access road.
Plaintiff had been perusing properties for sale in the area. The real estate company posted a sign on the main road indicating one of the properties off the private access road was for sale.
Plaintiff entered the access road for the purposes of driving by the property for sale. There was no sign or barrier blocking vehicles from entry onto private access road where the cable had been placed just 10 to 12 inches off the ground. It was weathered and rusted, and the posts that held it on either side were weathered and rusted too. There was a “No Trespassing” sign that was found on the ground later. Workers at the quarry would later testify the sign was supposed to hang on the cable, but it kept falling off.
The motorcyclist didn’t see the cable before he struck it. Just before impact, he glanced back it his passenger for maybe half a second. When he turned around, they struck the cable. Plaintiff suffered serious injuries.
It was later revealed plaintiff had previously known about the cable because he had worked at the quarry for about two weeks approximately one year earlier. However, he noted there were several days in which the cable was not up. He admitted he forgot about it entirely as he made his way up the access road to view the for-sale property.
Trial court ruled there was no possible way a reasonable jury could reach any other conclusion than that plaintiff was 100 percent responsible.
An appeals court affirmed, but on different grounds: That neither the real estate company nor the property owner owed him a duty of care.
The Oregon Supreme Court reversed as to the property owner, but affirmed as to the realtor.
Oregon recognizes a system of modified comparative fault, wherein a plaintiff who is deemed more than 50 percent negligent cannot collect damages. In Florida, courts follow a pure comparative fault model, meaning plaintiffs can be up to 99 percent liable for their own injuries and still collect 1 percent of damages, theoretically.
In this case, the Oregon Supreme Court disagreed with trial court’s assertion that there was no question plaintiff was 100 percent liable as a matter of law. The trial court had ruled that because plaintiff wasn’t looking ahead, he was essentially blindfolded and no amount of warning signs would have prevented the accident because he wasn’t paying enough attention.
However, the state supreme court ruled this overstated the evidence. Motorcyclist had only turned around for a half second. Viewed in the light most favorable to plaintiff, a quick glance would not absolve property owner of responsibility to keep property safe. At most, that quick, backward glance could be a point from which to argue comparative fault, but it didn’t heap all the fault onto the motorcyclist.
Therefore, the case was remanded for trial.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Towe v. Sacagawea Inc., March 26, 2015, Oregon Supreme Court
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