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Blackwell v. Panhandle Helicopter, Inc.

United States District Court, D. Oregon

March 4, 2015

PANHANDLE HELICOPTER, INC., an Idaho Corporation, Defendant

For Plaintiff: David Jay Lefkowitz, LAW OFFICE OF DAVID LEFKOWITZ, Portland, OR.

For Defendant: Philip A. Rush, David W. Cramer, MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN, Portland, OR.


MARCO A. HERNÁ NDEZ, United States District Judge.

Defendant Panhandle Helicopter, Inc. brings this motion to dismiss Plaintiff John Blackwell's negligence claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendant's motion to dismiss is granted.


Plaintiff was a ground worker directly employed by Helmig Tree Farms (" Helmig" ) in Oregon. Pl.'s First Am. Compl. (" Compl." ) ¶ 1. His job duties included hooking bundles of Christmas trees to Defendant's helicopter. Id. ¶ 3. Defendant is an Idaho corporation that does business in Oregon. Id. ¶ 2. Defendant owned and operated a helicopter to lift, transport, and deliver Christmas trees for Helmig. Id. ¶ 19.

The Christmas tree harvesting process consisted of multiple steps. First, Defendant's helicopter would fly toward a bundle of cut Christmas trees until it was directly, or almost directly, over the bundle. Id. ¶ 6. Plaintiff would stand by the bundle, about 100 feet below the helicopter. Id. Then, Defendant would dangle a cable and bell-shaped hooking mechanism for Plaintiff to hook the bundle to the helicopter. Id. ¶ 5-6. Defendant would then instruct Plaintiff to get clear and give a signal that Plaintiff was clear. Id. ¶ 5. After this signal, Defendant would lift the bundle. Id. Finally, Defendant would fly the bundle several hundred yards and drop it at a landing site before repeating the process. Id. ¶ 6.

Plaintiff alleges that the Christmas tree harvesting process did not always go as planned. According to Plaintiff, on multiple occasions, ground workers got caught in the ropes or rigging while trying to hook bundles of trees to Defendant's helicopter. Id. In early November 2013, Defendant lifted a person, flew him to the landing site as he dangled with a bundle of trees, and dropped him. Id. ¶ 7. Additionally, Defendant experienced repeated incidents where bundles of trees would " explode" and release as Defendant tried to lift them. Id. ¶ 6.

On three occasions, Plaintiff was injured while attempting to hook a bundle of trees to Defendant's helicopter. Id. ¶ 6. On the first occasion, on or about October 29, 2013, Plaintiff fractured his left thumb. Id. On the second occasion, on or about November 9, 2013, Plaintiff fractured his left ring finger. Id.

The third occasion forms the basis for Plaintiff's Complaint. On or about November 15, 2013, Plaintiff was at work wearing a cast on his left arm due to his previous injuries. Id. ¶ 8. On or about that day, he hooked a bundle of trees to Defendant's helicopter and, as Plaintiff tried to leave the area, Defendant lifted the bundle and the rope, caught Plaintiff, and " flipped" him. Id. Plantiff landed on his back on a stump and fractured his spine at multiple levels. Id.

The Court refers to any additional relevant facts in the discussion section below.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). " All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Am. Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (" [W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." ) (internal quotation marks, citation, and alterations omitted).

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the " grounds" of his " entitlement to relief" with nothing " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Id. (citations and footnote omitted).

To survive a motion to dismiss, a complaint " must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]" meaning " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Additionally, " only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. A complaint must contain " well-pleaded facts" which " permit the court to infer more than the mere possibility of misconduct[.]" Id.


Plaintiff brings three negligence claims against Defendant. The first claim is a common law negligence claim. The second claim is a statutory negligence claim under OAR 437-004-1750, the Oregon OSHA " Helicopters" rule. The third claim is a statutory negligence claim under Oregon's Employer Liability Law, ORS 654.305 et seq. Defendant moves to dismiss Plaintiff's claims, arguing that Defendant cannot be liable under the Oregon OSHA " Helicopters" rule because Defendant was not Plaintiff's employer, and arguing that the remainder of Plaintiff's claims are preempted by federal law.

A. Claim 2 - Oregon OSHA " Helicopters" rule

Plaintiff brings his second claim under OAR 437-004-1750, the Oregon OSHA " Helicopters" rule. Defendant argues that Plaintiff's claim must be dismissed because Plaintiff was not a direct employee of Defendant. Defendant is correct.

The Oregon OSHA " Helicopters" rule only applies to direct employees. The rule is included in the Oregon Occupational Safety and Health Code (OOSHC), which was adopted pursuant to the Oregon Safe Employment Act (OSEA). ORS 654.025(2); see also, German v. Murphy, 146 Or.App. 349, 357, 932 P.2d 580 (1997). The OSEA does not extend its coverage to indirect employees. Id. See also, Flores v. Metro Machinery Rigging, Inc., 99 Or.App. 636, 641, 783 P.2d 1024 (1989) (" The purpose of the [OSEA] is to require an employer to take necessary steps to protect its own employees, not those of other employers." ). Plaintiff conceded at oral argument that he was not a direct employee of Defendant.[1] Therefore, the " Helicopters" rule does not apply in this case. Plaintiff's additional argument that the rule ought to apply to Defendant as a matter of " common sense" and to avoid " needless harm" is without support. Pl. Resp. 14. Therefore, the Court grants Defendant's motion to dismiss Plaintiff's second claim.

B. Claims 1 and 3 -- Negligence under the Common Law and Oregon Employer Liability Law

Plaintiff brings his first and third negligence claims under common law and the Oregon Employer Liability Law, respectively. Defendant moves to dismiss Plaintiff's claims, arguing that, to the extent Plaintiff's claims are based on state law standards of care, they are preempted by the Federal Aviation Act (FAA) and its regulations. The Court grants Defendant's motion to dismiss because some of Plaintiff's allegations are preempted by the FAA.

The parties agree that the standard of care for the preempted allegations will be determined under federal law. State law will govern the other negligence elements--breach, causation, damages, and remedies. See Gilstrap v. United Airlines, Inc., 709 F.3d 995, 1006 (9th Cir. 2013).

The Court dismisses Plaintiff's complaint in order to provide Plaintiff the opportunity, as requested in Plaintiff's brief and at oral argument, to revise his claims to reflect the proper standard of care.

1. Preemption Background

There are three ways that a federal law can preempt a state law. A federal law can expressly preempt a state law, or preemption can be implied either by conflict preemption or field preemption. See Gilstrap, 709 F.3d at 1003. Conflict preemption occurs when " it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 1008 (citing English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (citation and internal quotation marks omitted)). Field preemption occurs when Congress indicates in some manner an intent to occupy a given field to the exclusion of state law. Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407, (1992)).

The FAA has no express preemption clause. Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc.,555 F.3d 806, 808 (9th Cir. 2009). Nor do the negligence claims at issue in this case conflict with any provision of the FAA or regulations promulgated under ...

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