WOLLHEIM, J.
Defendant Oregon Arena Corporation (OAC) appeals after a jury found it 50 percent at fault for injuries suffered by plaintiff when she fell from a railing at the Rose Garden arena. OAC asserts that the trial court erred in instructing the jury that any negligence of OAC's agent Coast to Coast Event Services, Inc. (Coast to Coast) is the negligence of OAC and in repeating that principle in a comment to the jury about the instruction. We affirm.
Plaintiff 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. Plaintiff filed a complaint against OAC, the developer and owner of the arena, and Coast to Coast, the company that provided security services at the basketball game.
Plaintiff and Coast to Coast settled before trial. Then plaintiff filed a motion in limine, asking the court to exclude evidence that Coast to Coast was formerly a party.
(Emphasis added.) The parties agreed to limit the evidence to the scope of the third amended complaint.
Over the course of the 10-day trial, both parties called Coast to Coast employees to testify as witnesses about the types of security Coast to Coast provided for OAC. Plaintiff proposed a verdict form that asked the jury to determine if Coast to Coast was negligent and in what proportion.
Accordingly, plaintiff proposed the following jury instruction:
OAC's attorney objected to plaintiff's proposed jury instruction. OAC argued that, because the allegations of fault in the pleadings were all personal to OAC and there were no pleadings to support independent negligence of Coast to Coast, the instruction was in error. The court overruled OAC's objection. The court gave the proposed instruction and also told the jury, "And just to be clear, in this case, * * * there's the direct liability of OAC and then there's the principal-agent liability as to Coast to Coast. That's all under OAC as already [has] been
The jury found that OAC was 50 percent at fault and 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 plaintiff damages of $2,125,000 (50 percent of the total damages found by the jury).
The two related issues on appeal are whether the trial court erred (1) in instructing the jury that any negligence of Coast to Coast is the negligence of OAC, and (2) in repeating that principle in its comment to the jury about the instruction. OAC renews 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. 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, plaintiff argues that the jury instruction was consistent with OAC's theory of the case. We agree with plaintiff.
We begin with an overview of the agency principles applicable to this case. An agent is one who is subject to the control of another and acts on behalf of the other. Vaughn v. First Transit, Inc., 346 Or. 128, 136, 206 P.3d 181 (2009). Generally, a principal is not liable in tort for physical injuries caused by the action of its nonemployee agents unless the principal intended or authorized the result or manner of performance of the agent. Id. at 137, 206 P.3d 181. Stated differently, a principal is liable for the actions of a nonemployee agent only if those actions are "within the actual or apparent authorization of the principal." Jensen v. Medley, 336 Or. 222, 231, 82 P.3d 149 (2003).
In Lipman Wolfe v. Teeples & Thatcher, 268 Or. 578, 587, 522 P.2d 467 (1974), the Supreme Court held that when a storekeeper has an independent contractor perform work that increases the danger to the storekeeper's customers but the storekeeper continues to invite customers, the storekeeper is vicariously liable for the negligence of the independent contractor. See also Bryant v. Sherm's Thunderbird Mkt, 268 Or. 591, 602, 522 P.2d 1383 (1974) ("[A] storekeeper cannot delegate to any third party his duty to his customers to keep the premises reasonably safe."). Thus, a landowner cannot delegate its responsibility to keep the premises safe for its business invitees.
Here, OAC concedes that Coast to Coast was its agent and OAC's duty to maintain the safety of the Rose Garden was a nondelegable duty. Despite these concessions, OAC argues that the court erred in instructing the jury that "[a]ny negligence of [Coast to Coast] is the negligence of [OAC]." The argument is two-fold: (1) In the absence of allegations specifying the ways in which Coast to Coast was negligent, the jury should not have been allowed to consider Coast to Coast's negligence; and (2) by instructing the jury that "any" negligence of Coast to Coast is the negligence of OAC, the court gave the jury "free rein to speculate about `any negligence' of Coast to Coast, and then to attribute that unpleaded negligence, whatever it might be, to OAC." In other words, OAC contends that the instruction allowed the jury to hold OAC responsible even for negligence by Coast to Coast that would otherwise be outside the scope of OAC's acknowledged vicarious liability as Coast to Coast's principal, even though the third amended complaint alleged that, at all material times, Coast to Coast was acting within the course and scope of its services for OAC.
The first prong of OAC's argument—that, under ORCP 18 A,
The second prong of OAC's argument focuses on the use of the phrase "any negligence." As noted above, OAC contends that the instruction invited the jury to consider "any" evidence of negligence by Coast to Coast, whether or not that negligence had been alleged in the complaint. Again, we are not persuaded.
In addition to instructing the jury that "[a]ny negligence of [Coast to Coast] is the negligence of [OAC]," the court instructed the jury that it could decide only the questions framed by the pleadings:
Thus, the jury was instructed that the negligence of Coast to Coast for which OAC could be held liable was limited by the specifications of negligence in the complaint. Further, the complaint alleged that Coast to Coast acted within the course and scope of its services to OAC at all material times. Given those limitations and OAC's position that it was responsible for Coast to Coast's conduct, the trial court did not err in instructing the jury that OAC was responsible for "any" negligence by Coast to Coast. In light of the strictures of those instructions, the jury would have understood that "any negligence" referred to negligence within the scope of the pleadings, and the jury instruction was not an invitation to go beyond the pleadings. See Maas v. Willer, 203 Or.App. 124, 129, 125 P.3d 87 (2005), rev. den., 340 Or. 411, 134 P.3d 169 (2006) ("We review jury instructions as a whole and will reverse only if we can fairly say that the instructions probably created an erroneous impression of the law in the minds of the jurors that affected the outcome of the case."). The trial court did not err in giving plaintiff's proposed jury instruction and did not err in giving the additional comment to the jury.
Affirmed.