Towe v. SACAGAWEA, INC.

*28ORTEGA, P. J.

Plaintiff in this negligence case appeals after the trial court granted summary judgment in favor of defendants Rick Matthews and Sherry Matthews, dba Mountain View Rock (Mountain View), and Re/Max Ideal Properties (Re/Max). Plaintiff brought an action to recover for injuries he suffered after hitting a cable stretched across a private road (the access road) while riding his motorcycle. Plaintiff now challenges the trial court’s conclusion that, as a matter of law, plaintiff was 100 percent responsible for his injuries. We affirm the trial court’s award of summary judgment to both defendants, but on alternative grounds that were also presented below — namely, that (1) as a matter of law, plaintiff was a trespasser and Mountain View’s conduct met the standard of care applicable to trespassers, and (2) Re/Max cannot be liable for plaintiffs injuries because its conduct was not the cause of those injuries as a matter of law.

When reviewing a trial court’s grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party — in this case, plaintiff. Vaughn v. First Transit, Inc., 346 Or 128, 132, 206 P3d 181 (2009).

On a Sunday in November 2006, plaintiff and his girlfriend’s son, Jerid, were out riding their motorcycles together on Indian Creek Road near plaintiffs home. Just after 4:00 p.m., while it was still daylight, the two turned off of Indian Creek Road and onto the access road. That road was partly graveled, but was paved on Mountain View’s property, which began about half a mile off of Indian Creek Road. At the beginning of the access road, where it connected with Indian Creek Road, a large sign was posted, listing information for Mountain View and another landowner on the access road and indicating, in red lettering, “Private Road No Trespassing.” Although plaintiff saw the sign and knew the access road to be private, he nevertheless proceeded up the road on his motorcycle. Mountain View’s property contains a quarry and is the last property on the access road, past two other properties.

Approximately two years earlier, because of theft and vandalism at the quarry, Mountain View installed a *29cable — suspended about three feet high between two posts— to block the access road at the entrance to Mountain View’s property. Plaintiff, who had worked for Mountain View in December 2005 and January 2006, was aware that the first person to the quarry in the morning would open the cable using a key that was hidden under a rock nearby, and the last person to leave at the end of the work day would close the cable. In fact, plaintiff himself had opened or closed the cable at least twice during his employment there.

On the day in question, in addition to the “No Trespassing” sign, a Re/Max sign was posted at the intersection of Indian Creek Road and the access road. The sign contained a directional arrow pointing up the access road and had been placed in that location 10 months earlier by a Re/Max agent with whom one of the properties on the access road — “the Kinyon property” — had been listed for sale. The real estate agent also had placed a larger Re/Max sign on the Kinyon property itself, approximately 120 yards from the location where the cable stretched across the access road. When he initially toured the Kinyon property with the owner, the listing agent noticed the cable across the access road on Mountain View’s land. He also saw it on later occasions when he visited the property. In spring of that year, plaintiff had driven up the access road with his girlfriend to look at the Kinyon property, which was still listed for sale with Re/Max at that time. Later, in the summer of that year, the listing was withdrawn and, as a result, the real estate agent removed the Re/Max sign from the Kinyon property. He failed, however, to remove the directional sign from the base of the access road.

On the weekend in question, as well as the previous weekend, plaintiffs girlfriend had told him that there were several properties for sale on the access road in addition to the Kinyon property that they had looked at in the spring. Plaintiff understood from those discussions that the properties must be on Mountain View’s “private road somewheref.]” Plaintiffs girlfriend had indicated that the additional properties would not sell because Mountain View would not “allow [an] easement on the road,” and plaintiff thought that, because Mountain View had paved its part of the access road, it would not be willing “to allow anybody” on its road.

*30Before following Jerid up the access road, plaintiff saw the Re/Max directional sign. He thought that he would look for the additional properties for sale up the access road. On the way up the road, plaintiff looked around for a sign to locate property for sale. There was no longer a sign on the Kinyon property and plaintiff did not see any other sign identifying property on the road that was for sale. He had never seen a Re/Max sign on Mountain View’s property.

On that day, several ribbons of yellow caution tape as well as an orange cone hung from the cable. In addition, immediately after the accident at issue, an orange sign reading “POSTED No Trespassing” was found face up on the ground in the road near the cable.1 Although plaintiff previously had known about the cable, on that particular day he forgot about its possible presence across the access road.

Jerid saw the cable across the road and stopped his motorcycle about 100 yards away from it. Although he saw Jerid stop, plaintiff continued up the access road and accelerated slightly while passing Jerid. Plaintiff then turned and looked back at Jerid for about half a second — long enough to see that Jerid had a “shocked” look on his face — before looking back at the road ahead. At that point, while driving between 25 and 30 miles per hour, plaintiff saw the cable, which was then less than 25 yards away. Although he attempted to stop, he was unable to do so in time, and hit the cable. Plaintiff acknowledged that, before looking back at Jerid, he had not been focused straight ahead, but instead had been glancing from one side of the road to the other looking for property for sale. As a result of the accident, plaintiff suffered serious injuries.

Plaintiff sought damages from defendants, contending that his injuries were the result of their negligence. Specifically, plaintiff alleged that Mountain View was negligent in placing the cable across the access road, failing to better mark the cable, failing to warn travelers of the cable’s presence, and failing to adequately inspect the access road. Plaintiffs complaint also alleged that Mountain View was *31negligent per se and that its actions constituted wanton misconduct. Plaintiff alleged that Re/Max was negligent in placing the directional sign on Indian Creek Road, failing to remove the directional sign after the “larger Tor Sale’ sign had been removed,” failing to warn travelers of the cable, and failing to adequately inspect the access road. Both Mountain View and Re/Max moved for summary judgment.

After hearing argument by all of the parties, the trial court issued an order recounting what it considered to be the dispositive facts:

“(1) [Plaintiff and Jerid] were riding their motorcycles on a private road during daylight when they approached a cable across the road.
“(2) [Jerid] saw something ‘hanging across’ the road, ‘started slowing down,’ and knew it was a cable.
“(3) [Plaintiff and Jerid’s] version of the events preceding the time when [plaintiff] hit the cable are identical in all material respects. According to [Jerid], [plaintiff] ‘kind of coasted and then turned around and looked . . . back at me and then he looked forward again . . . [a]nd then he hit the cable.’ According to [plaintiff, Jerid] ‘stopped but I. . . continued to go. And I started to accelerate [a] little bit, and I looked back, and he had a shocked look on his face, and I turned back around, cable.’ [Plaintiff] testified that because of the shocked look on [Jerid’s] face, [Jerid] ‘could see that I was going to run into’ the cable.
“(4) Although [plaintiff] only turned around once to look at [Jerid], when asked if he was looking forward down the road at all other times, he testified, ‘actually my eyes are wandering, looking for a sign’ indicating where a piece of property was for sale.”

(Citations omitted.) Based on those facts, the trial court concluded that, as a matter of law, defendants could not be liable for plaintiffs injuries. Noting that the law requires a person driving a motor vehicle to keep a lookout at all times, the court concluded that defendants could not “be found negligent in not foreseeing that [plaintiff] would disobey the law requiring motorists to keep a lookout by taking his eyes off the road to turn around.” In the court’s view, plaintiff was *32“driving without looking” and was, therefore, “100% responsible for his injuries and no reasonable juror could find otherwise.” In other words, the trial court concluded that plaintiffs conduct alone was the cause of plaintiffs harm. Accordingly, it granted summary judgment in favor of defendants.

On appeal, we review the trial court’s summary judgment ruling to determine whether we agree that “there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C; O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Or App 456, 460, 157 P3d 1272 (2007). There is no genuine issue of material fact if, “based on the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C. Because, at trial, plaintiff would have the burden of producing evidence that defendants acted negligently, on summary judgment plaintiff must “come forward with specific facts demonstrating a genuine issue for trial.” O’Dee, 212 Or App at 461; see ORCP 47 C (“The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial.”).

In view of the trial court’s conclusion that he was 100 percent responsible for his own injuries, plaintiff contends that “comparative fault is an issue to be decided by a jury” and that, “[f]or purposes of summary judgment, [he] presented sufficient evidence such that a jury could decide that the combined fault of [Re/Max and Mountain View] is greater than that of * * * plaintiff.” Defendants, in turn, contend that the judgment in their favor should be affirmed because, as a matter of law, plaintiffs negligence exceeded any negligence on their part.

In addition, both defendants raise alternative bases on which they contend we should affirm the trial court’s decision. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001) (the right for the wrong reason principle permits a reviewing court to affirm a lower court’s ruling under appropriate circumstances). As defendants’ proffered alternative bases for affirmance were raised *33in the summary judgment proceedings before the trial court, it is appropriate to consider them in this case. See id. at 659-60 (for an appellate court to affirm on an alternate basis (1) the facts of record must be sufficient to support the alternate basis; (2) the trial court’s ruling must be consistent with the view of the evidence under the alterative basis; and (3) the record must materially be the same one that would have been otherwise developed). According to Mountain View, its conduct “met the standard of reasonable conduct deemed to have [been] set by the community” and, whether plaintiff is viewed as a trespasser or a licensee, Mountain View met the applicable standard of care. Re/Max, for its part, asserts that the facts on summary judgment fail to establish duty, foreseeability, and causation and that, therefore, the trial court’s ruling should be affirmed. Because they are dispositive, we address only (1) Mountain View’s contention that summary judgment was proper because plaintiff was a trespasser as a matter of law and Mountain View’s conduct met the standard of care applicable to trespassers; and (2) Re/Max’s assertion that it cannot be held liable for plaintiffs injuries because its conduct was not the cause of the harm.

As a general matter, in order to prevail on a claim for negligence, a plaintiff must demonstrate

“(1) that defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons and plaintiff s injury was within the general type of potential incidents and injuries that made defendant’s conduct negligent.”

Solberg v. Johnson, 306 Or 484, 490-91, 760 P2d 867 (1988). The role of the court, as “it ordinarily is in cases involving the evaluation of particular situations under broad and imprecise standards[,]” is “to determine whether upon the facts alleged or the evidence presented no reasonable factfinder could decide one or more elements of liability for one or the other party.” Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987).

*34We begin by evaluating Mountain View’s potential liability. As noted, Mountain View asserts that the trial court’s judgment should be affirmed because plaintiff was, as a matter of law, a trespasser on its property. Plaintiff responds that there are genuine issues of fact regarding whether he was a trespasser. Furthermore, according to plaintiff, even if he was a trespasser, there are genuine issues of material fact regarding whether Mountain View’s conduct met the standard of care owed to trespassers.

“Oregon follows the traditional rules governing landowner liability, under which the duty that a landowner owes to a person who comes on land depends on whether the person is an invitee, licensee, or trespasser.” Stewart v. Kralman, 240 Or App 510, 517, 248 P3d 6 (2011). A possessor of land has the duty to warn an invitee of latent dangers and to “ ‘protect the invitee against dangers in the condition of the premises about which the [possessor] knows or reasonably should have known.’ ” Johnson v. Short, 213 Or App 255, 260, 160 P3d 1004 (2007) (quoting Cassidy v. Bonham, 196 Or App 481, 486, 102 P3d 748 (2004) (brackets in Johnson)). With respect to a licensee, a possessor of land may be liable for injury resulting from a condition on the land only if

“(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
“(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
“(c) the licensees do not know or have reason to know of the condition and the risk involved.”

Johnson, 213 Or App at 260 (internal quotation marks omitted). On the other hand, it is well settled that the possessor of premises owes no duty to a trespasser other than to avoid injuring him by willful or wanton conduct. Stewart, 240 Or App at 517; see, e.g., Monnet v. Ullman et al., 129 Or 44, 55, 276 P 244 (1929).

*35An invitee is “ ‘one who comes upon the premises upon business which concerns the occupier, with the occupier’s invitation, express or implied.’ ” Denton v. L. W. Vail Co., 23 Or App 28, 32, 541 P2d 511 (1975) (quoting Rich v. Tite-Knot Pine Mill, 245 Or 185, 191-92, 421 P2d 370 (1966)). Unlike an invitee, a licensee is one who “ ‘with the [possessor’s] permission, comes upon premises for the licensee’s own purposes, often social.’ ” Johnson, 213 Or App at 260 (quoting Nelsen v. Nelsen, 174 Or App 252, 256, 23 P3d 424 (2001) (brackets in Johnson)). Finally, a trespasser “ ‘is one who enters or remains on premises in the possession of another without a privilege to do so, created by the possessor’s consent or otherwise.’ ” Denton, 23 Or App at 32 (quoting Rich, 245 Or at 191).

The record here contains no evidence that plaintiff entered Mountain View’s private road in connection with business he had with Mountain View, so he would not be an invitee under the usual criteria. See Denton, 23 Or App at 32 (concluding that a motorist who was “not on the roadbed in connection with any purpose of the defendants * * * was not an invitee”). Nevertheless, a person may also be considered 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.” Walsh v. C & K Market, Inc., 171 Or App 536, 539, 16 P3d 1179 (2000). Moreover, the possessor of a private road may be considered to have tacitly invited people to use the road when the possessor maintains that road in such a manner that “ ‘he knows or should know that others will reasonably believe it to be a public highway[.]’ ” Wolfe v. Union Pacific R. Co., 230 Or 119, 124, 368 P2d 622 (1962) (quoting Restatement of Torts § 367 (1934)). Under those circumstances, the possessor of the private road can be subject to liability for bodily harm caused “ ‘by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.’ ” Id. (quoting Restatement § 367).

In Wolfe, the court considered whether the plaintiff had presented a jury question regarding whether the defendant, the owner of a private road on which the plaintiff was *36injured, had issued “a tacit invitation to use the roadway as a part of the public highway[.]” 230 Or at 125. In that case, believing that it would take him onto the freeway, the plaintiff turned off of Halsey Street in Portland onto the defendant’s private road and was injured when he ran his car off a steep embankment at a sharp curve in the road. The defendant had placed a sign on its property east of the private road that read “No Trespassing Private Property Union Pacific Railroad[.]” Id. at 121 (internal quotation marks omitted). The court reasoned that there was evidence from which the jury “could have found that the position of the ‘Private Property’ sign would have led a reasonable man to believe that it was intended to designate only the private character of the * * * field adjoining the roadway and not the roadway itself.” Id. at 125. Thus, it concluded that the jury could reasonably have concluded that plaintiff, exercising reasonable judgment, “could have regarded the roadway as an integral part of the public highway system.”

Here, by contrast, there is no evidence that Mountain View engaged in any conduct that could be considered a tacit invitation to use the access road. At the entry point of the road, a sign read, in part, “Private Road No Trespassing.” Unlike the sign in Wolfe, the sign in this case clearly stated that the road itself (as opposed to the land beside the road) was private and not open to the public. Plaintiff saw the sign before turning onto the access road. Furthermore, plaintiff, in his deposition testimony, indicated that he personally was aware that Mountain View’s road was private and that Mountain View did not want people using its road. Although Mountain View’s section of the access road was paved, in contrast to the gravel section of the access road adjoining Indian Creek Road, that type of improvement would not reasonably lead others to believe that the clearly marked private road was part of a public highway. Furthermore, the real estate directional sign at the base of the road was not placed there by Mountain View or its agent, and did not relate to any land of Mountain View’s. Overall, Mountain View did nothing that would reasonably lead plaintiff to believe that Mountain View’s private road was part of the public highway system. Its sign at the base of the road clearly stated the opposite: that the road was private and that *37motorists were not to trespass on it — and indeed, plaintiff was in fact aware that the road was not part of the public highway system. Thus, on this record, no reasonable juror could conclude that Mountain View had tacitly invited people to use the road.

Turning to the distinction between a licensee and a trespasser, in Denton this court examined which of the two categories fit a motorcyclist riding on a road that was not open to the public. In that case, the plaintiff was injured “when he rode his motorcycle into a barbed wire fence stretched across a new section of highway that was under construction and had never been open to the public.” 23 Or App at 30. The new roadway had a smooth surface in some areas and in others “was impassable because of piles of boulders.” Id. Before this court, the issue was whether the defendants “owed a duty to plaintiff not to put up a fence or to post some kind of warning that the fence was there,” id. at 31, and, to resolve that issue, the critical question was whether the “plaintiff was a licensee or a trespasser,” id. at 32.

The court explained that “a trespasser and a licensee enter the land for their own purposes; the distinction is whether or not there is consent of the occupier.” Id.

“ ‘The word “consent” or “permission,” indicates that the possessor is in fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing that he shall enter, if he desires to do so. A mere failure to object to another’s entry may be a sufficient indication or manifestation of consent, if the possessor knows of the other’s intention to enter, and has reason to believe that his objection is likely to be effective in preventing the other from coming. On the other hand, the fact that the possessor knows of the intention to enter and does not prevent it is not necessarily a manifestation of consent, and therefore is not necessarily permission. A failure to take burdensome and expensive precautions against intrusion manifests only an unwillingness to go to the trouble and expense of preventing others from trespassing on the land, and indicates only toleration of the practically unavoidable, rather than consent to the entry as licensee. Even a failure to post a notice warning the public not to trespass cannot reasonably be construed as an *38expression of consent to the intrusion of persons who habitually and notoriously disregard such notices.’ ”

Id. at 33 (quoting Restatement (Second) of Torts § 300 comment c (1965)). The court concluded that the plaintiff in that case was a trespasser on the roadway as a matter of law because the condition of the roadway made clear that the road was not open for use:

“Where objecting will probably do no good or people habitually disregard notices, or where it is burdensome or expensive to keep people out of the area, consent will not be implied [even from knowledge that people use the land in question], * * * It was very clear that the new roadway was not yet open for public use, not the least from the fact that it could not be driven from one end to the other, even by a motorcycle.”

Id. at 34-35.

As support for his argument that there are issues of fact regarding whether he was a trespasser on the access road, plaintiff here points to the fact that, unlike the road in Denton, “the access road was clear and open for use[.]” However, the fact that the road was passable and, on Mountain View’s property, paved does not somehow create an issue regarding whether Mountain View consented to plaintiffs use of the road. To create such an issue, plaintiff would need to produce evidence of conduct by Mountain View that could reasonably be understood as expressing consent to plaintiffs intrusion on the access road. Plaintiff has not done so. On the contrary, the sign at the entrance of the road expressed exactly the opposite intention. Plaintiff saw the sign and was aware that Mountain View did not want people driving on its road. Moreover, the real estate sign at the base of the access road had no connection to Mountain View, and the condition of which plaintiff complains — the cable blocking the access road at the entrance of Mountain View’s property — was itself an attempt to prevent others from using Mountain View’s road. Given all these facts, plaintiff was a trespasser on the access road as a matter of law.

Plaintiff also contends that there are questions of fact as to whether he should be considered a “persistent intruder,” imposing a higher duty on Mountain View. For a *39person to be considered a “constant trespasser” or, to use plaintiffs term, “persistent intruder,” a possessor of land must know, or from facts within his knowledge have reason to know, that trespassers constantly intrude on a limited area of his land. Stewart, 240 Or App at 518 n 4; Denton, 23 Or App at 36. “It is not enough that he know or have reason to know that persons persistently roam at large over his land.” Id. (internal quotation marks omitted). Rather, the possessor must be aware of constant and persistent intruders on his land in the area where the allegedly dangerous condition is located. See id.

Mountain View installed the cable in an attempt to prevent access to the quarry after incidents of theft and vandalism there. According to plaintiff, that evidence supports the view that Mountain View knew or should have known that trespassers constantly intruded on its land. However, “persistent intruder” liability requires evidence related to the limited area in question. Here, there is no evidence that Mountain View was or should have been aware of constant and persistent intruders into the limited area at the entrance to its property after installation of the cable. The evidence of incidents of theft and vandalism at the quarry before installation of the cable in 2004 is not sufficient to create a genuine issue of fact as to whether, at the time of the accident in November 2006, Mountain View should have been aware that trespassers constantly and persistently intruded onto its private road.

In light of the foregoing conclusions, Mountain View was required only to avoid willful and wanton conduct that might cause injury to plaintiff. Put another way,

“ ‘a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care
“ ‘(a) to put the land in a condition reasonably safe for their reception, or
“ ‘(b) to carry on his activities so as not to endanger them.’ ”

Denton, 23 Or App at 35 (quoting Restatement (Second) § 333). The willful and wanton conduct that must be avoided is “a willful determination not to perform a known duty.” *40Monnet, 129 Or at 55 (internal quotation marks omitted). In other words, the act which produced the injury to a trespasser, in order to support liability for that injury, “must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of[.]” Id. at 56 (internal quotation marks omitted).

The record here contains no facts from which a reasonable jury could conclude that Mountain View acted willfully and wantonly. Mountain View placed a cable across its private road to prevent trespassers from accessing its property. As noted, it posted a sign at the entrance of the access road indicating that the road was private and that trespassing was forbidden. The cable, further along the road at the entrance to Mountain View’s property, stretched across the road between two posts and was marked by ribbons of caution tape and an orange cone. There simply is no evidence that Mountain View acted with a reckless disregard for the safety of others and a willingness to inflict injury upon them when it placed the cable across its road. Accordingly, Mountain View is entitled to summary judgment in its favor.

We next turn to Re/Max, which asserts, in part, that we should affirm the summary judgment in its favor because, as a matter of law, plaintiff cannot establish causation. In other words, it is Re/Max’s position that its conduct in leaving its directional sign at the base of the access road, but removing its sign from the Kinyon property after the listing was withdrawn, did not cause plaintiffs injuries.

Our case law varies in its descriptions of causation. However, in any negligence case, the plaintiff has the burden to present evidence that the defendant caused the harm at issue. See Joshi v. Providence Health System, 342 Or 152, 161-62, 149 P3d 1164 (2006). There are two tests of causation that are potentially applicable: the “but for” test and the “substantial factor” test. Id. at 162. Under the “but for” test for causation, “[t]he defendant’s conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event, if the event would have occurred without it .’’Id. at 161 *41(internal quotation marks omitted). In other words, the “plaintiff must demonstrate that the defendant’s negligence more likely than not caused the plaintiffs harm[.]” Id. at 162. Under the “substantial factor” test, “[a] party is liable in negligence only if its conduct was a substantial factor in causing the plaintiff’s injury.” Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or App 76, 83, 51 P3d 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (internal quotation marks omitted). Although the term “substantial factor” is somewhat amorphous, id., it refers to an important or material factor, and not one that is insignificant, id. at 83 n 5. The term “substantial” denotes “ ‘the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable [persons] to regard it as a cause, using the word in the popular sense, in which there always lurks the idea of responsibility[.]’ ” Furrer v. Talent Irrigation District, 258 Or 494, 511, 466 P2d 605 (1969) (quoting Restatement (Second) § 431 comment a); see also Lasley v. Combined Transport, Inc., 351 Or 1, 7, 261 P3d 1215 (2011) (discussing “substantial factor” test of causation). Here, under either test, no reasonable juror could conclude from the facts on summary judgment that Re/Max’s conduct caused plaintiff’s injuries.

Again, the conduct that Re/Max is alleged to have engaged in is placing a directional sign pointing to the access road, failing to remove that sign when it removed the “for sale” sign from the Kinyon property, and failing to warn plaintiff of the cable. Plaintiff in this case saw the Re/Max directional sign when he turned to go up the access road. He and his girlfriend had been up the access road before to look at the Kinyon property when it was listed for sale. However, plaintiff testified that his girlfriend had informed him on the weekend of the accident as well as the weekend before that there were “more” properties for sale up that road, and that he understood from those conversations that those properties were on Mountain View’s private road. When he rode up the access road, plaintiff intended to locate the additional properties that his girlfriend had told him were for sale. Although plaintiff had worked at Mountain View’s quarry several months earlier, and had opened and closed the cable at least twice, he “forgot” about the cable on the day of the accident. *42When Jerid stopped his motorcycle upon seeing the cable, plaintiff turned around to look at Jerid, rather than keeping his eyes on the road.

Taken together, those facts are not legally sufficient to support the conclusion that Re/Max’s conduct caused plaintiff to collide with the cable across the access road and to sustain injuries. Plaintiff did not go up the road to look at the Kinyon property; rather, he testified that he went up the road to look for property that his girlfriend told him was for sale and that he believed to be on Mountain View’s road, which he knew to be private. There is no indication from this record that the presence of the Re/Max sign substantially influenced his decision to travel up the access road or that, in the absence of Re/Max’s conduct, the accident would not have occurred. Moreover, despite his personal knowledge of the cable, plaintiff “didn’t think” about it and was looking backwards as he approached it. Under those circumstances, plaintiff cannot establish causation as to Re/Max as a matter of law and, accordingly, Re/Max is entitled to summary judgment.

Affirmed.

We describe the markings on the cable based on photographs taken by police responding to the accident. In his brief, plaintiff also references those photographs in describing the cable.