Arthur YEATTS; and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Plaintiffs-Appellants,
POLYGON NORTHWEST COMPANY, a foreign corporation, Defendant-Respondent and Matthew WHITMAN, Plaintiff,
Argued and Submitted July 11, 2013.
[Copyrighted Material Omitted]
Clackamas County Circuit Court. CV08020124. Jeffrey S. Jones, Judge.
Robert K. Udziela argued the cause for appellants. With him on the opening brief were J. Randolph Pickett, R. Brendan Dummigan, Kimberly O. Pickett, and Pickett Dummigan LLP, and Scott M. Supperstein and Law Office of Scott Supperstein, P.C., and Jeffrey A. Bowersox and Bowersox Law Firm P.C. With him on the reply brief were Jeffrey A. Bowersox and Bowersox Law Firm P.C., and J. Randolph Pickett, R. Brendan Dummigan, and Pickett Dummigan LLP, and Scott M. Supperstein and Law Office of Scott Supperstein, P.C.
Bruce H. Cahn argued the cause for respondent. With him on the brief were Aaron D. Goldstein and Ball Janik LLP.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[268 Or.App. 258] NAKAMOTO, J.
In this personal injury case, plaintiff appeals a general judgment in favor of defendant, Polygon Northwest Company (Polygon), assigning error to the trial court's grant of summary judgment in favor of Polygon on plaintiff's claims for relief under Oregon's Employer Liability Law (ELL), ORS 654.305 to 654.336, and for common-law negligence. The trial court entered judgment for Polygon based on its conclusion that there were no genuine issues as to any material facts and that Polygon was entitled to prevail as a matter of law. On appeal, plaintiff contends that he presented sufficient evidence to create genuine issues of material fact on both of his claims and, as a result, that summary judgment was not appropriate. We affirm.
I. FACTS AND PROCEDURAL HISTORY
When reviewing a trial court's grant of summary judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party, in this case, plaintiff. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). When viewed in the light most favorable to plaintiff, the record establishes the following facts.
Polygon was the general contractor for a residential townhouse development project. In 2005, Polygon, on behalf of the developer, signed a contract with plaintiff's employer, Wood Mechanix, LLC (Wood Mechanix) to perform framing work on the project. The contract provided that Wood Mechanix " shall, at all times, be responsible for providing a safe work site and be responsible for the safety" of its employees and equipment. As part of the contract, Wood Mechanix was required to develop a site-specific safety plan that identified the anticipated hazards of the framing work and the specific means that it would use to address those hazards. [268 Or.App. 259] Wood Mechanix was required to submit its safety plan to Polygon before beginning work on the project.
The contract required Wood Mechanix's owner, Stan Trytko, to attend a meeting with Polygon's superintendent before beginning work on the project. At that meeting, Trytko completed a checklist entitled " Subcontractor Precon Safety Orientation" that required him to answer " yes," " no," or " N/A" to a number of questions related to Wood Mechanix's safety plan for the project. On the form, Trytko confirmed that Wood Mechanix had provided its " Fall Protection Program" to Polygon and had " Fall Protection Work Plan" forms available for each building on which it would work. Trytko also confirmed that the plan:
" o Identif[ied] all fall hazards[.]
" o Describe[d] the method of fall arrest or fall restraint to be used for these hazards[.]
" o Describe[d] the correct procedures for assembly, maintenance, inspection and disassembly of the fall protection system[.]"
Trytko verified that Wood Mechanix's employees were trained and instructed in the above items and that Wood Mechanix would have a " competent and qualified person" inspect the fall-protection equipment daily. Wood Mechanix decided to use guardrails as its form of fall protection on the project.
Polygon prepared a site-specific, internal safety manual on behalf of the developer for use by Polygon's employees. Within the Polygon safety manual, there is a " Fall Protection Plan." On one page of that plan, there is a list of various work-site conditions or tasks, such as " Painting" [268 Or.App. 260] or " Stair openings," and a corresponding " Restraint." For example, the plan provides, in part:
" 1. High foundation/retaining walls.
" Restraint: guardrails [.]
" 2. Ladders (any type), interior or exterior.
" Restraint: secure ladders to structure, insuring stability.
" 3. Second floor decks.
" Restraint: guardrails [.]"
(Emphasis in original.) Under that list, a section labeled " Procedures for Assembly" provides that the " proper procedure for assembly of fall arrest/restraint equipment will be found in the related" subcontractor's fall-protection plan and according to the manufacturer's recommended procedures. Another part of the Polygon manual states that its construction superintendents " [w]ill know and enforce" its fall-protection plan. Polygon did not provide the internal safety manual to Wood Mechanix.
Polygon's role on the project was to manage the construction of the townhouses, which included managing the site, budget, schedule, and general safety of the project. Polygon's employees were at the site every day, and its superintendents would perform daily site walks. If they saw a safety violation, such as a worker without a hard hat or a missing guardrail, Polygon's superintendents would direct the person to stop the dangerous activity or tell the subcontractor to fix the problem. In addition, and pursuant to the contract, Polygon held weekly meetings with subcontractors on the project. Brennan Taylor, one of Polygon's superintendents, testified that the purpose of those weekly meetings was to " [g]o over a schedule, any issues amongst * * * the [268 Or.App. 261] plans and * * * on different subcontractors. If somebody was caught without a hard hat, it would be brought up, 'You must wear your hard hat, must'--but it was more--it was scheduling and day-to-day activities." Wood Mechanix held a separate safety meeting for its employees each week.
In 2006, plaintiff was working for Wood Mechanix as a framer on the project when he fell from the third floor of one of the buildings and was injured. Earlier that day, a Polygon employee had told plaintiff to put his hard hat on and to " go up there and finish something," in reference to the building. Plaintiff went to the third floor of the building and began framing an exterior wall. Plaintiff finished placing sheetrock on a section of the wall that was going to be raised and attached, and he was kneeling down, facing a guardrail. In an effort to push himself up to a standing position, plaintiff leaned against the guardrail, and it gave way, causing him to fall 19 feet to the concrete surface below. At the time of his fall, there were no Polygon employees on the third floor of the building.
Following his injury, plaintiff filed this action against Polygon, alleging that it was liable under the ELL as his " indirect employer" and was liable for common-law negligence. Specifically, plaintiff alleged in his ELL claim that Polygon was negligent and liable for numerous failures:
" a. In failing to require and utilize a guardrail system that was effective in preventing falls;
" b. In failing to have a guardrail system that was effectively anchored on both ends;
" c. In failing to have a guardrail system that could withstand 200 pounds of pressure;
" d. In failing to warn plaintiff that he was working in an area where the guardrail system was inadequate;
" e. In failing to use every device, care and precaution that was practicable to use for the protection and safety of life and limb, in violation of Oregon's Employer Liability Law pursuant to ORS 654.305."
In his negligence claim, plaintiff alleged that Polygon " was negligent in failing to adequately control and supervise the work" for the same reasons.
[268 Or.App. 262] Polygon moved for summary judgment on both of those claims, arguing that (1) it was not subject to the ELL because it did not control the guardrails and (2) it was not liable in negligence because it did not owe plaintiff a duty given that it was entitled to rely on Wood Mechanix's knowledge and expertise in framing the buildings. Plaintiff responded by submitting evidence that, in his view, created genuine issues of material fact with respect to whether the ELL applied to Polygon. Plaintiff's response to Polygon's motion for summary judgment did not respond to Polygon's arguments regarding his common-law negligence claim.
The trial court granted Polygon's motion as to both of plaintiff's claims. It concluded that the summary judgment record did not establish that there were genuine issues of material fact for trial and that Polygon was entitled to prevail as a matter of law. The court thereafter entered a general judgment in favor of Polygon, which plaintiff now appeals.
II. STANDARD OF REVIEW
We will affirm a trial court's ruling granting a party's motion for summary judgment if there is no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. ORCP 47 C. " There is no genuine issue of material fact if, based on the record before the court viewed in a manner most favorable to the nonmoving party, here plaintiff, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Shell v. Schollander Companies, Inc., 265 Or.App. 624, 626, 336 P.3d 569 (2014) (citing ORCP 47 C).
III. PLAINTIFF'S ELL CLAIM
Plaintiff first assigns error to the trial court's grant of summary judgment in favor of Polygon on his ELL claim. Plaintiff argues that the trial court erred in concluding that he had failed to present evidence from which a reasonable juror could conclude that Polygon exercised the control necessary to bring it within the ELL. We disagree.
The ELL is a statute that imposes a higher standard of care on employers who are engaged in dangerous [268 Or.App. 263] lines of work. ORS 654.305. The purpose of the ELL is to provide workers who are engaged in those lines of work with maximum protection from injury. Wilson v. P.G.E. Company, 252 Or. 385, 395, 448 P.2d 562 (1968). The ELL accomplishes that purpose by requiring persons
" having charge of, or responsibility for" dangerous work to " use every device, care and precaution that is practicable" to protect those employees. ORS 654.305.
Thus, to sustain an ELL claim, a plaintiff must prove that the defendant had charge of, or responsibility for, the dangerous work. That requirement has been interpreted in terms of a defendant's control over the work. Wilson, 252 Or. at 390. When, as is the case here, the defendant is not the plaintiff's direct employer, the plaintiff can prove the necessary control by demonstrating that (1) the defendant and the plaintiff's direct employer were engaged in a " common enterprise" ; (2) the defendant retained the right to control the manner or method in which the risk-producing activity was performed; or (3) the defendant actually controlled the manner or method in which the risk-producing activity was performed. Woodbury v. CH2M Hill, Inc., 335 Or. 154, 160, 61 P.3d 918 (2003).
Each of those tests considers whether the defendant had a sufficient degree of control over the dangerous work such that the defendant will be subject to the heightened standard of care under the ELL. To make that determination, it is necessary to first identify the work involving a risk or danger over which the defendant must have had control.
That determination is guided by the Oregon Supreme Court's decision in Woodbury, in which the court considered how to define the scope of " work involving a risk or danger" under the ELL. 335 Or. at 161. In Woodbury, [268 Or.App. 264] the defendant had instructed the plaintiff's employer to install a water pipe. Id. at 157. Most of the pipeline had been installed underground, but the last few feet of the pipe had to be installed over a sunken stairway and corridor. The plaintiff's employer had constructed a wooden platform to facilitate the installation of that section of the pipeline. After that section of pipe had been installed, the plaintiff was dismantling the platform and lost his balance while he was attempting to move one of the boards from the platform, causing him to fall onto the corridor below. Id. at 158. Relying on our decision in George v. Myers, 169 Or.App. 472, 10 P.3d 265 (2000), rev den, 331 Or. 692, 26 P.3d 149 (2001), we held that the scope of the work involving a risk or danger should be narrowly construed to be the discrete activity that precipitated the plaintiff's accident. Woodbury v. CH2M Hill, Inc., 173 Or.App. 171, 181, 21 P.3d 153 (2001), rev'd, ...