2) Najjar v. Safeway

Case No.: A121182

http://www.publications.ojd.state.or.us/A121182.htm

AREA OF LAW: CIVIL PROCEDURE

HOLDING: (Opinion by Armstrong, J.) A trial court correctly denies a motion for summary judgment and subsequent related motions where evidence presented could reasonably lead a jury to conclude that plaintiff was a foreseeable plaintiff and that the risk of harm was foreseeable.

Furthermore, issue preclusion does not prevent litigation of an issue touched upon by the Workers’ Compensation Board when the issue was not essential to the WCB’s decision.

Abderrahim Najjar was an employee of Safeway. Wilson Lee was another employee with authority over Najjar. While off duty, Najjar assisted Lee in a failed attempt to catch a shoplifter, injuring himself in the process. Najjar filed an unsuccessful workers’ compensation claim and later sued Safeway and Lee for personal injury. Safeway and Lee (collectively “Safeway”) moved for summary judgment on the grounds that the Workers’ Compensation Board (WCB) had found that Lee had not requested Najjar’s assistance. Safeway’s summary judgment motion and later motions for directed verdict, for judgment notwithstanding the verdict and for new trial failed. The jury found for Najjar, and Safeway appealed. The Court of Appeals held that the information available could reasonably lead a jury to conclude that Najjar was a foreseeable plaintiff and that the risk of harm was foreseeable. Furthermore, evidence provided by Lee and the store manager about the standard of care was sufficient to survive a motion for directed verdict. Lastly, because the disputed request for assistance was not essential to the WCB’s decision that the incident did not occur within the scope of Najjar’s employment, the Court ruled that issue preclusion did not apply to prevent litigation of the issue previously considered by the WCB. Affirmed. [Summarized by Laurie Nelson.]