DEREK M. SPAIN, Plaintiff-Appellant,
MARK JONES, individually, dba Mark Jones Construction, and as Trustee of the Jones 1996 Family Trust; KEITH ROSSETTO, individually and dba Keith Rossetto Construction; and DAVID BROWN, individually and dba David Brown Construction, Defendants-Respondents.
Argued and submitted on October 12, 2012.
Jackson County Circuit Court 092402L7, Ronald D. Grensky, Judge.
Frederick H. Lundblade argued the cause for appellant. With him on the brief was Black, Chapman, Webber & Stevens.
Dominic M. Campanella argued the cause for respondent Mark Jones. With him on the brief was Brophy, Schmor, Brophy, Paradis, Maddox & Weaver, LLP.
Ryan J. McLellan argued the cause for respondent Keith Rossetto. With him on the brief were W. Michael Quillen and Smith Freed & Eberhard P.C.
Tracy M. McGovern argued the cause for respondent David Brown. With her on the brief was Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, PC.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore. DUNCAN, J.
Plaintiff, a plumber, fell on a construction worksite and was injured. He filed suit against defendant Jones,  who owned the property and was overseeing the construction project, and defendants Rossetto and Brown, who were framing subcontractors on the project, alleging that (1) all three defendants' negligence caused his injuries, (2) Jones was liable for his injuries under a theory of premises-liability, and (3) he was entitled to recover from each defendant under the Employer Liability Law (ELL), ORS 654.305 to 654.336. The trial court granted each defendant's motion for summary judgment and entered a general judgment of dismissal. On appeal, plaintiff argues that the trial court erred in granting summary judgment for each defendant on each of plaintiff's claims. We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
When reviewing the grant of a motion for summary judgment, we view the facts in the light most favorable to the nonmoving party. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P.2d 608 (1997). The record, viewed in the light most favorable to plaintiff, establishes the following facts: Plaintiff's employer, Randy's Plumbing, contracted with Jones to do the plumbing work on a house that Jones was building. On November 5, 2007, plaintiff went to the house to do plumbing work, which included putting vents through the roof. He went to the second floor, drilled the necessary holes in the roof, and then walked back toward the stairs along a hallway that was open to the lower level. There was no barrier or other fall protection in place along the edge of the hallway. Plaintiff turned right, intending to go down the stairs, and stepped off the edge. He fell to the ground floor, approximately nine feet below, and was injured.
Jones, who lived in Eureka, California, was building the house for his son and daughter-in-law on property that the Jones 1996 Family Trust owned in Medford. Jones was an experienced general contractor with extensive knowledge of fall protection, but he was not licensed in Oregon. Jones oversaw the construction of the house by obtaining the necessary permits, hiring subcontractors, and arranging some of the inspections. He had been to the site only a few times before plaintiff fell, and he was not present when the accident occurred.
Jones orally agreed with Rossetto that Rossetto would frame the house. Rossetto was an experienced framer and had also acted as the general contractor on numerous home construction projects. In the past, as part of his responsibilities as a framing subcontractor, he had held safety meetings regarding fall protection and had installed fall protection along second-floor hallways exposed to the first floor. That fall protection had remained in place while other subcontractors worked on the site until Rossetto's work was complete.
Rossetto testified that, in this case, he did not install fall protection because he had no employees working on the project. For his part, Jones assumed that, as part of Rossetto's responsibility for framing, Rossetto would provide fall protection for areas around the stairwell before other subcontractors began performing interior work. However, Jones and Rossetto did not discuss fall protection at any time before plaintiff was injured.
Rossetto engaged Brown to help him frame the house. He paid Brown a flat fee and the two worked on the project together. Brown also had extensive construction experience, including experience installing fall protection. Brown's practice was to install fall protection in areas where the drop was 10 feet or more. In this case, Brown testified that he "probably" measured the distance from the second-floor hallway to the first floor and concluded that, because the distance was less than 10 feet, no fall protection was needed.
As noted, Jones contracted with plaintiff's employer to plumb the house. The record does not reflect whether that contract was oral or written or what its terms were. When the interior framing was about 90 percent complete, Rossetto notified Jones, who contacted plaintiff's employer and requested that the company send someone out to do the necessary plumbing work. Plaintiff was notified that he should go to the site. At the time of the accident, plaintiff was the only person at the site.
When Jones learned of plaintiff's injury, he was surprised that there was no fall protection installed. The same day, he contacted Rossetto and told him to put up temporary barriers. Rossetto did so, and the barriers remained in place until a permanent system was installed.
Plaintiff had worked on the construction of numerous multi-story buildings, many of which had lacked fall protection, and he did not expect fall protection at the site. He knew that there was a danger of falling off of exposed ledges. However, he had never taken precautions against falling--for example, by installing temporary railings or using a spotter--when working at sites without fall protection.
Plaintiff's expert, Baird, stated that, as the framing contractors, Rossetto and Brown were responsible for installing fall protection on the second floor, including the area where plaintiff fell, and that installation of fall protection by framers is standard industry practice. Baird also stated that it is not the responsibility of a plumbing subcontractor like plaintiff's employer to install fall protection. Plaintiff submitted OAR 437-003-1501(3) and American National Standard (ANSI/ASSE) ...