Roriguez v. Union Pac. R.R. Co.

Summary judgment does not present an opportunity to assert a theory of liability that is not in the pleadings. Permapost Products Co. v. Osmose, Inc., 200 Or App 699, 705 (2005).

Plaintiff appealed from a limited judgment for Defendant on a personal injury claim. Plaintiff was struck by a freight train while looking at her cell phone. Plaintiff argued that even though a negligence claim was preempted, a premises liability claim was not. Plaintiff relied on evidence that vegetation obstructed the line of sight sustaining the premises liability claim. Defendant argued that Plaintiff did not allege that the vegetation blocked either her view or the operator’s view in the complaint, thus the court cannot consider that argument and evidence related to it. Summary judgment does not present an opportunity to assert a theory of liability that is not in the pleadings. Permapost Products Co. v. Osmose, Inc., 200 Or App 699, 705 (2005). The Court reasoned the theory of liability alleged in the complaint was different than the theory based on conditions of obstruction of vegetation. The Court found that Plaintiff’s premises liability claim was not asserted in the complaint. Affirmed.