NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUSIE W. HAILE, No. 14-36050
Plaintiff-Appellant, D.C. No. 3:13-cv-00053-KI
v.
MEMORANDUM*
HICKORY SPRINGS MANUFACTURING
COMPANY, a North Carolina company,
Defendant-third-party-
plaintiff-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted June 8, 2017**
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
In this premises liability action, self-employed truck driver Musie W. Haile
appeals the district court’s grant of summary judgment to Hickory Springs
Manufacturing Company (“Hickory”). Haile delivered a sealed intermodal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
container to Hickory’s facility in Portland, Oregon. While Haile was opening the
container on Hickory’s premises, two 600-pound bales of scrap foam fell from the
container, causing the container door to strike Haile in the head and severely injure
him. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Under Oregon law, “it is the duty of the possessor of land to make the
premises reasonably safe for [an] invitee’s visit.” Woolston v. Wells, 687 P.2d 144,
150 (Or. 1984) (en banc). The possessor satisfies this duty by “discover[ing]
conditions of the premises that create an unreasonable risk of harm to the invitee,”
and “either [] eliminat[ing] the condition creating that risk or [] warn[ing] any
foreseeable invitee of the risk so as to enable the invitee to avoid the harm.” Id.
The district court properly granted summary judgment to Hickory on Haile’s
premises liability claim because Haile’s harm was not the result of a condition on
Hickory’s property. Haile was harmed by a shift in cargo in a container that Haile
himself brought onto Hickory’s premises. This container and the scrap foam
within it are not a condition of Hickory’s property, and there is no Oregon
precedent supporting premises liability in such circumstance.
We are unpersuaded that the Supreme Court of Oregon would expand its
premises liability doctrine to allow liability here. See Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1125 (9th Cir. 2008). Haile contends that
Hickory was aware that cargo sometimes shifted in containers delivered to its
2
premises; was aware that cargo sometimes rested against the doors of containers;
and was aware that cargo sometimes fell out of those containers. He contends that,
under these circumstances, the Supreme Court of Oregon would recognize a duty
to warn Haile that the cargo he carried may be dangerously unsecured.
But the general foreseeability of harm is the basis for the standard of care in
a negligence action, not one for premises liability. See Fazzolari By & Through
Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d 1326, 1336 (Or. 1987) (en banc).
To expand Oregon’s law of premises liability to encompass all foreseeable risks of
harm would erase any distinction between premises liability and negligence,
contrary to recent Oregon precedent emphasizing the distinction between the two
theories of relief. See Towe v. Sacagawea, Inc., 347 P.3d 766, 775 (Or. 2015);
Hagler v. Coastal Farm Holdings, Inc., 309 P.3d 1073, 1079–80 (Or. 2013) (en
banc). We conclude that the Supreme Court of Oregon would not expand
Oregon’s common law of premises liability to encompass Haile’s claim.
Because we hold that Haile’s premises liability claim fails under state law,
we need not, and do not, address Hickory’s asserted preemption defense under
Federal Motor Carrier Safety Regulations.
AFFIRMED.
3