Barnes v. Walsh

Defendants1 appeal the judgment entered after a jury verdict awarded tort damages to plaintiff. They contend that the trial court erred when it struck their allegations about plaintiffs negligence and when it refused to instruct the jury on that subject. ORCP 60. We reverse.

In June, 1991, plaintiff and a friend were visiting plaintiffs relative, who lived on the second floor of an apartment complex owned by defendants. The common area of the outside balcony of the second floor was protected by a guardrail. James Kubalek, the previous owner, had recently reinstalled the guardrail, just before…