                           NOT FOR PUBLICATION                           FILED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


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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.




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