United States District Court, D. Oregon
Gary J. Susak, SUSAK & POWELL, P.C., 1515 S.W. Fifth Avenue, Suite 1020, Portland, OR 97201; and Shenoa L. Payne, HAGLUND KELLEY LLP, 200 S.W. Market Street, Suite 1777, Portland, OR 97201. Of Attorneys for Plaintiffs.
Stephen C. Voorhees and Kurt C. Peterson, KILMER, VOORHEES & LAURICK, P.C., 732 N.W. 19th Avenue, Portland, OR 97209-1302. Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Plaintiff James Gibson ("Gibson") was a flatbed truck driver. In March 2010, Defendant Owyhee Produce, LLC ("Owyhee") hired Meteor Express, Inc. ("Meteor"), Gibson's employer,  to haul a truckload of onions from Owyhee's packing and shipping facility in Oregon to a client in Florida. Meteor dispatched Gibson to haul the load. Owyhee requires that all loads be tarped before the driver can depart Owyhee's premises. Owyhee does not provide a tarping station or any other devices or assistance in tarping the load. Gibson stood on the load of onions to apply the required tarp, fell, and was injured. Gibson and his wife, Laurie Gibson, (collectively "Plaintiffs") bring this action to recover damages incurred as a result of Gibson's fall.
On September 4, 2012, the Court granted in part Owyhee's motion for summary judgment and dismissed Plaintiffs' claim under Oregon's Employer Liability Law ("ELL"). The Court denied Owyhee's motion with respect to Plaintiffs' negligence and loss of consortium claims. At the request of the parties, the Court entered, pursuant to Federal Rule of Civil Procedure 54(b), final judgment only as to Plaintiffs' ELL claim. Plaintiffs appealed that judgment and on August 7, 2014, the United States Court of Appeals for the Ninth Circuit vacated this Court's grant of partial summary judgment on Plaintiffs' ELL claim and remanded to this Court for further consideration in light of the Oregon Court of Appeals' intervening decision in Spain v. Jones, 257 Or.App. 777 (2013). Upon further consideration and in light of Spain, the Court denies Owyhee's motion for partial summary judgment against Plaintiffs' ELL claim.
A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment, " the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
The Court incorporates by reference the background section from its previous opinion and order on Owyhee's motion for summary judgment (Dkt. 29). The Court sets forth herein only the background information relevant to Plaintiffs' ELL claim.
Gibson lives in Alabama and hauled interstate loads for Meteor, which is based in Alabama. On March 9, 2010, Meteor dispatched Gibson to haul a load of onions from Owyhee's facility in Nyssa, Oregon to Miami, Florida. When Gibson was informed about this job, he was in a truck stop in Boise, Idaho. He was more than 2, 000 miles from Alabama and approximately 50 miles from Nyssa, Oregon.
When Gibson was dispatched to the Owyhee job, he knew that he would have to tarp the load of onions and he brought his own tarp. The Contract of Haul provided that the driver should cover the load "completely w/tarps, [and] uncover front & rear in nice weather[.]" Contract of Haul (Dkt. 23-2) (capitalization omitted). Owhyee inspects the tarping of a load before allowing trucks to depart its premises to ensure that the tarping is done correctly. When first informed about this job, Gibson did not know whether Owyhee had a tarping station or any other tarping devices available for him to use.
After Gibson arrived at Owyhee's Nyssa facility, Owyhee's employee Socimo Cruz loaded approximately 950 bags of onions, stacked onto 19 pallets (with 50 bags to a pallet and each pallet separately wrapped in plastic) onto Gibson's flatbed truck. Each pallet was approximately six feet in height. Gibson did not help Mr. Cruz load the onions onto Gibson's flatbed truck.
Gibson placed the tarp on one of the pallets, and Mr. Cruz used a forklift to lift the pallet with the tarp onto Gibson's flatbed truck. Gibson asked whether Owyhee had a tarping station and after he was told there was no tarping station, Gibson asked Owyhee employees if someone could help him tarp the load. Owyhee does not permit its employees to assist in tarping loads. After the truck was loaded and the pallet with the tarp was placed on the truck, Gibson pulled away from the loading dock and parked alongside one of Owyhee's buildings to apply the tarp. Gibson stood on the load of onions to apply the tarp. As he was pulling the tarp over the ...