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Quirk v. Skanska USA Building, Inc.

United States District Court, D. Oregon, Portland Division

May 30, 2018

DAVID QUIRK, Plaintiff,
v.
SKANSKA USA BUILDING, INC., a Delaware corporation, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff David Quirk (“Quirk”) sues defendant Skanska USA Building, Inc. (“Skanska”), asserting multiple state law claims. The claims arise from injuries Quirk sustained while working on a construction project for which Skanska served as general contractor. Skanska moves for summary judgment on all claims. For the reasons set forth below, the court grants in part and denies in part Skanska's motion.[1]

         Background

         Skanska served as general contractor for the construction of a Lam Research facility in Tualatin, Oregon. The project included the construction of a cleanroom and various mechanical devices therein. To help complete the job, Skanska hired multiple subcontractors, one of which was Quirk's employer, Charter Mechanical (“Charter”). (Declaration of Ryan J. McLellan, ECF No. 17 (“McLellan Decl.”), Ex. A, (“Subcontract”)[2]; Declaration of David Quirk, ECF No. 23-1 (“Quirk Decl.”), at 1, ¶ 2.)

         In November 2013, Skanska and Charter entered into a master subcontract (the “Subcontract”) for project-related work including the installation of new piping in the cleanroom. (See Subcontract, McLellan Decl., Ex. A, at 1.) Under the Subcontract, Charter was required to provide Skanska with a “work plan” containing a breakdown of Charter's specific activities at the site and the expected time each task would take to complete. (Subcontract, Declaration of Dylan Hydes, ECF No. 23-2 (“Hydes Decl.”), Ex.12, at 4, ¶ 3.3.) From that plan, Skanska would develop a master “project schedule” to “coordinate the times required for each area of work on the project” and “decide the time, order and priority for performance of . . . [Charter]'s Work to the extent necessary, in [Skanska]'s judgment, to . . . direct the performance of the Work accordingly.” (Id. at ¶ 3.4; ¶ 9.2.) If any of Charter's activities conflicted with other work to be completed at the site, Skanska could “direct the performance of [Charter's] Work accordingly” or, in its discretion, direct a “change order” as to Charter's work at any time. (Id. at 2-3, ¶ 2.4; 6, ¶10.1.)

         The Subcontract incorporated as exhibits Skanska's standard code of conduct and environmental health and safety requirements. (Subcontract, McLellan Decl., Ex. A, at 2.) Under those documents, Charter “agree[d] that the prevention of accidents to workmen engaged upon or in the vicinity of the project [wa]s its responsibility.” (Id. at 6.) Charter also agreed to appoint a designated safety representative and to comply with all applicable laws and rules related to environmental health and safety, including those “established by [Skanska].” (Id.)

         Skanska also could remove Charter's designated safety representative, stop work because of unsafe conditions, implement safety measures at Charter's expense, and conduct “reasonable unannounced searches” of the work area and of Charter's employees. (Subcontract, McLellan Decl., Ex. A, at 6-9.) Charter was required to comply with Skanska's Fall Prevention and Protection Policy, which required that “no worker exposed to a fall hazard of six (6) feet or greater will work without 100% fall protection, ” meaning it either had to prevent fall hazards of more than six feet or to provide such fall protection where necessary. (Id. at 7.)

         Skanska conducted daily safety hazard walks around the job-site, including the cleanroom. (Hydes Decl., Deposition of Miguel Lopez, Ex. 6, at 23:6-12; Deposition of Darren McGill (“McGill Dep.”), Ex. 5, at 49:9-50:8; Subcontract, Ex. 12., at 10.) Each day, Skanska led a morning meeting for the subcontractors. (Hydes Decl., Deposition of David Quirk (“Quirk Dep.”), Ex.10, at 112:1-22; Deposition of Joseph Gergen, Ex. 7, at 26:5-27:16.) During the meeting, each subcontractor present at the site would report to Skanska about on what and where they intended to work that day, including any relevant safety matters. (Id.; Hydes Decl., Deposition of Ben Gaunt, Ex. 2 (“Gaunt Dep.”), at 9:20-25, 11-3; McGill Dep. Ex. 5, at 42:7-43:17, 57:6-58:9.) If Skanska coordinators detected a conflict, a subcontractor might be redirected. (McGill Dep., Ex. 5, 34:19-23.)

         The cleanroom floor consisted of two levels - the central portion of the room was sub-grade, leaving an elevated “ledge” up against the room's four walls. (Quirk Dep., Hydes Decl., Ex. 10, at 26:21-24, 80:7-17; 93:23-24; McGill Dep., Ex. 5, at 22:6-17; 84:5-9; see Ex. 14 for photographs.) The ledge measured approximately 18-inches wide and four-feet above the subgrade. (Quirk Dep., Hydes Decl. Ex. 10, at 124:24-125:2; McLellan Decl., Ex. B, at 84:18-20.) The ledge was interrupted along one side of the room by an approximately two-foot wide trench, leaving a hole or opening in the ledge. (Hydes Decl., Ex. 14, at 1, 4; Quirk Dep., McLellan Decl., Ex. B, at 130:10-16.) The opening was covered initially by a large, heavy tile, then later replaced with plywood. (Quirk Dep., Hydes Decl. Ex. 10, at 91:9-92:25; McGill Dep., Ex. 5, at 79:11-80:20.) Those covers were later removed, however, to allow another subcontractor to apply a white, shiny, epoxy-like coating to all of the cleanroom's surfaces, including the floor, the ledge, and the opening. (Hydes Decl., McGill Dep., Ex. 5, at 67:21-68:6; 83:1-7; Gaunt Dep., Ex. 2, at 25:4-12.)

         In late March, 2014, Skanska closed the cleanroom to contractors for three to four days to allow the coating to cure. (Hydes Decl., Deposition of Feodor Pukhalsky (“Pukhalsky Dep.”), Ex. 4, at 26:9-27:9; Gaunt Dep., Ex. 4, at 13:9-18; Deposition of Robert Filley, Ex. 8., at 22:19-25.) Once cured, Skanska representatives did not replace the cover over the trench because doing so could have compromised the integrity of the coating. (Hydes Decl., McGill Dep., Ex. 5, at 83:4-7, 84:1-5; Gaunt Dep., Ex. 2, at 25:4-12.)

         Quirk worked as a pipefitter for Charter on the Lam cleanroom project. (Quirk Decl., ¶¶ 2, 3, 7). On April 2, 2014, the day the cleanroom was reopened after the coating cured, Quirk reported to Skanska's morning meeting, ready to label pipes and replace gauges on the cleanroom's coils. (Quirk Dep., Hydes Decl., Ex. 10, at 56:1-25.) At the morning meeting, Skanska representatives announced that the cleanroom was once again accessible to workers, but to protect the new coating, workers entering had to wear booties. (Id.; Gaunt Dep., Ex. 2, at 51:13-53:15.) No. mention was made of the trench and no warning tape surrounded it. (Id. at 52:23-53:4; Pukhalsky Dep., Ex. 4, at 49:24-50:10.) Skanska's meeting leader instructed Quirk and his Charter colleague, Don Condit, to perform their pipefitting work in the cleanroom first, before any other subcontractors. (Quirk Dep., Hydes Decl., Ex. 10, at 56:4-25.)

         Quirk had worked in the cleanroom more than 20 times previously, the most recent occasion being four weeks prior. (Quirk Dep., McLellan Decl., Ex. B, at 91:11-17.) He had seen Skanska and other Charter employees stand on the ledge before to accomplish their work in the cleanroom. (Quirk Dep., Hydes Decl., Ex. 10, at 80:3-6.) He was aware the trench existed, but he had never needed to stand on the ledge or cross over it, because the trench always had been covered. (Id. at 92:10-16; McGill Dep., Ex. 5, at 79:2-7.) According to both Quirk and another subcontractor working in the cleanroom that day, the new, shiny, white appearance of the coating caused the trench to blend in with the surrounding ledge. (Quirk Dep., Hydes Decl., Ex. 10, at 95:4-7 (“it was brand new painted white and everything was shiny and looked the same”); Pukhalsky Dep., Ex. 4, at 55:11-56:6 (“anybody could have fell in there because it kind of blends in”).)

         To access the pipe gauges, Quirk climbed onto the ledge and walked, “sidestepping, ” along it. (Quirk Dep., Hydes Decl., Ex. 10, at 80:21-81:6; McLellan Decl., Ex. B, at 76:11-78:2, 80:3-6.) Quirk testified he believed walking sideways was safer than walking straightforward because he could hold on to the “ribs” of the wall. (Id.) Without “see[ing]” the trench, Quick stepped into it, hitting his back on its angle iron-corner. (Quirk Dep., Hydes Decl., Ex. 10, at 84:18-20.) He suffered physical injuries as a result. (Id.; Hydes Decl., Ex. 11; McLellan Decl., Ex. B, at 111:15-18.)

         Quirk filed suit against Skanska in state court, alleging violation of the Oregon's Employer Liability Law (“ELL”) and the Oregon Safe Employment Act (“OSEA”) and asserting claims of negligence and negligence per se. (See Complaint, ECF No. 1, at 4-9.) Skanska timely removed the case to this court, (Notice of Removal, ECF No. 1), and now moves for summary judgment on all of Quirk's claims (“Motion”). (Def.'s Mot. for Summ. J., ECF No. 16, (“Motion”).)

         Preliminary Procedural Matters

         In its reply brief, Skanska objects to and moves to strike portions of Quirk's response brief and supporting materials. The court addresses each evidentiary objection in turn.

         I. Subsequent Remedial Measures.

         Quirk proffers evidence of what he deems subsequent remedial measures instituted by Skanska after his accident. Skanska objects that such evidence as inadmissible under Federal Rule of Evidence (“FRE”) 407.

         Though evidence of subsequent remedial measures ordinarily is prohibited to show a defendant's negligence, under Oregon law, such evidence is admissible in cases brought under the ELL. Rich v. Tile-Knot Pine Mill, 245 Or. 185, 199 (1966). Federal Rule of Evidence 407, however, generally prohibits such evidence. Fed. R. Ev. 407 (“When measures are taken that would have made an earlier injury or harm less likely to occur, [such] evidence . . . is not admissible to prove [] negligence; culpable conduct; . . . or a need for a warning or instruction.”). The Ninth Circuit has held that even where state law governs substantive questions, in diversity cases, evidentiary admissibility is governed by federal law. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010); see e.g., Rosa v. Taser Int'l, Inc., 684 F.3d 941, 948-49 (9th Cir. 2012) (analyzing liability under California law but applying FRE 407 to exclude a subsequent warning because “Rule 407 [i]s sufficiently procedural in nature to apply in diversity cases under Erie R.R. Co. v. Tompkins, 304 U.S. 64[] (1938)”) (citation omitted)); Clare v. Timber Prod. Co. P'ship, No. CIV. 1:11-3024-CL, 2012 WL 629964, at *8 (D. Or. Feb. 23, 2012) (admitting evidence of subsequent remedial measures in Oregon ELL context, but only to show control).

         The FREs, however, “do not supplant all state law evidentiary provisions with federal ones.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (internal quotation and citation omitted). “[S]tate evidence rules that are intimately bound up with the state's substantive decision making must be given full effect by federal courts sitting in diversity.” Id. Exemplary is the admissibility of unilaterally recorded conversations under California state law. Id. at 667. Because the California penal code criminalizes the taping of such conversations and “limits the admissibility of illegally intercepted conversations, ” and the California Constitution “expressly guarantee[d] a right to privacy, ” the tapes' admissibility is governed not by the FREs but by state law. Id.; see also Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir.1995) (holding federal courts applying Nevada substantive law also must apply Nevada evidentiary rules on admissibility of the state's medical malpractice screening panel rulings because the panels “constitute[d] a central feature” in the state's “established and integrated scheme for handling medical malpractice claims”).

         Citing Rich, Quirk argues the evidence of subsequent remedial measures here is admissible “due to the substantive law governing the ELL” because the ELL requires employers to “use every device, care and precaution which it is practicable to use for the protection and safety of life and limb.” (Pl.'s Supp. Resp. Br. at 2 (quoting the ELL language on which the Oregon Supreme Court in Rich relied).)

         The evidence at issue here does not fall within the Feldman exception. To be sure, the Rich court appears to have based its ELL subsequent remedial measures exception on the statute's requirement that specific safety measures be implemented. But affirmatively requiring certain safety measures does not equate to criminalizing the collection of evidence itself, as was the case in Feldman. Quirk does not provide any state constitutional or statutory support to suggest the ELL contains any specific evidentiary rules analogous to those in the California law in Feldman. Thus, Quirk fails to show that the judicially created exception in Rich evidences a state substantive policy interest sufficient to override FRE 407's application in this case.

         However, FRE 407 permits the admission of subsequent remedial measures evidence for the purpose of showing control, if control is disputed. Fed.R.Evid. 407 (“[T]he court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or the feasibility of precautionary measures.”) Control is disputed here: much of the controversy in this case centers on who controlled the cleanroom and the trench at the time of Quirk's injury. Therefore, the evidence Quirk proffers is admissible, though to show only control. Accordingly, Skanska's second evidentiary objection is sustained, except to the extent the evidence of subsequent remedial measures is relevant to prove control.

         II. Admissions of Fault.

         According to Quirk's deposition testimony, a Skanska representative admitted fault for the accident during a subsequent meeting between the parties. (See Quirk Dep., Hydes Decl., Ex. 10, at 120:17-122:13.) Quirk could not recall exactly who made this representation. (Id.) Skanska argues the statement is inadmissable hearsay made by an unknown declarant under FRE 802. Quirk contends the statement is non-hearsay under exclusion FRE 801(d)(2)(D).

         Hearsay is an out-of-court statement, whether oral or written, offered into evidence to prove the truth of the matter asserted. FRE 801(a), (c). Hearsay is inadmissible unless it is defined as non-hearsay under FRE 801(d) or falls within a hearsay exception. See Fed. R. Ev. 802; 30B Michael H. Graham, Federal Practice & Procedure: Evidence § 7031 (2017 ed.) Under FRE 801(d)(2)(D), “a statement [] offered against an opposing party and . . . made by the party's agent or employee on a matter within the scope of that relationship while it existed” is non-hearsay and, therefore, admissible.

         Skanska argues the FRE 801(d)(2)(D) does not apply here because Quirk cannot identify who made the statement and thus cannot establish that the exclusion's elements are satisfied.

         Conclusory, speculative testimony is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). Quirk, as the offering party, must demonstrate that the statement at issue meets the requirements of FRE 801(d)(2)(D). Quirk's testimony fails to identify the admitting declarant's identity. Without that information, the court cannot determine whether the declarant was Skanska's agent or employee, as the exclusion requires. Cf. United States v. Gonzalez-Valdez, 321 Fed.Appx. 683, 684 (9th Cir. 2009) (reversing trial court's admittance of unknown declarant's statements because offering party failed to prove statements fell under co-conspirator hearsay exception when “there [wa]s no evidence other than the alleged co-conspirator's statements themselves that would establish . . . a conspiracy between the defendant and the unknown, unidentified caller”). As a result, the statement remains inadmissible hearsay and is stricken from the record.

         III. Incomplete Interrogatory Responses.

         Finally, Skanska moves to strike allegations in Quirk's response brief related to workplace safety violations under Oregon Revised Statute (“ORS”) 654.310 and Oregon Administrative Rules (“OARs”) 437-002-0022 and 437-003-1500, because the allegations were not included as answers to Skanska's interrogatories. Skanska served Quirk with interrogatories requesting he set forth and describe “ the bas[e]s for liability against Skanska, including . . . any . . . ordinance, administrative regulation, or any other . . . rule . . . [he] claim[s] Skanska violated.” (Def.'s Reply Br. at 4.) Quirk responded but did not include allegations based on ORS 654.310 or OAR 437-002-0022 and 437-003-1500. He later referenced those statute and rules in his response brief in conjunction with his OSEA and negligence per se claims. Hence, Skanska argues that Federal Rules of Civil Procedure (“Rules”) 33 and 26, which require answering parties to respond fully to interrogatory questions and to correct or supplement incomplete interrogatory responses, compel striking the allegations.

         Quirk concedes he failed to include the aforementioned bases in his interrogatory response, but defends, first, that Skanska had sufficient notice of the implication of OAR 437-002-0022, which imposes “additional Oregon general [workplace safety] requirements, ” because discovery discussions and collection centered on the subject and, as such, no prejudice would ensue from the allegation now. Second, he argues that ORS 654.310, which is the second of the two substantive statutory provisions comprising the ELL, and OAR 437-003-1500, which contains only a definition, fell outside the scope of the interrogatory request.

         Rule 12(f) authorizes the court to strike from the pleadings “any redundant, immaterial, impertinent, or scandalous matter, ” Fed.R.Civ.P. 12(f), but such requests “are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.” Champlaie v. BAC Home Loans Servicing, LP, 706 F.Supp.2d 1029, 1039 (E.D. Cal. 2009); see also Patapojf v. Vollstedt's, Inc., 267 F.2d 863, 865 (9th Cir. 1959) (noting “the interests of justice are best served by [hearing a case] on the merits.”) The absence of prejudice is a sufficient reason to deny moving defendants' motion to strike. See, e.g., N.Y.C. Emps.' Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. Cal. 2009) (“Where the moving party cannot adequately demonstrate . . . prejudice, courts frequently deny motions to strike even though the offending matter was literally within one or more of the categories set forth in Rule 12(f).” (citation and internal quotation marks omitted)).

         By its express language, however, Rule 12(f) applies only to material contained in a “pleading.” See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (“only pleadings are subject to motions to strike”); Sokoli, 2015 WL 7720466, at *3 (D. Idaho Nov. 27, 2015) (“Rule 12(f) allows a motion to strike a pleading, not a motion. A motion is not a pleading.”). Generally, therefore, arguments contained in motions, briefs, and memoranda may not be attacked by a motion to strike. See Act Now to Stop War & End Racism Coal. v. D.C., 286 F.R.D. 117, 125 (D.D.C. 2012), vacated sub nom. Act Now to Stop War & End Racism Coal. & Muslim Am. Soc'y Freedom Found. v. D.C., 846 F.3d 391 (D.C. Cir. 2017) (vacated on other grounds) (“motions, affidavits, briefs, and other documents outside of the pleadings are not subject to Rule 12(f)”). However, courts on occasion have exercised their discretion to treat such motions as procedurally proper evidentiary objections challenging the admissibility of the supporting record. See e.g., Sokoli, 2015 WL 7720466, at *4; see also Natural Resources Defense Council v. Kempthorne, 539 F.Supp.2d 1155, 1161 (E. D. Cal. 2008) (“[A] motion to strike materials that are not part of the pleadings may be regarded as an invitation by the movant to consider whether [proffered material] may properly be relied upon.” (citing U.S. v. Crisp, 190 F.R.D. 546, 551 (E. D. Cal. 1999) (“[A] motion to strike has sometimes been used to call courts' attention to questions about the admissibility of proffered material in [ruling on motions].”)).

         Skanska does not argue the aforementioned allegations rely on inadmissible evidence. Because the allegations are found in a pre-trial motion, not a pleading, Skanska's motion to strike such arguments is procedurally improper.

         Even if it were not, the court does not strike the arguments from the record. Skanska does not argue the allegations here would be prejudicial; it asserts only that they should have been included in Quirk's interrogatory response. Skanska by now is aware that the aforementioned rules constitute bases for Quirk's suit; has been afforded the chance to respond to the arguments; and, as the record demonstrates, has conducted extensive discovery on the topics central the allegations. (See Hydes Decl., Exs. 15-17.) Moreover, regardless of the scope of the interrogatory, ORS 654.310 and OARs 437-002-0022 and 437-003-1500 represent only minor, supporting aspects of some of Quirk's claims. OAR 437-003-1500, in particular, merely provides a related definition; OAR 437-002-0022 is relevant only to establish an underlying safety violation to support Quirk's OSEA claim; and ORS 654.310 is asserted only indirectly, to establish an underlying violation to support Quirk's negligence per se claim. Therefore, because the allegations relate to the controversy, little prejudice would result from their introduction here, and in light of the strong judicial preference for deciding matters on their merits, Skanska's third motion to strike is denied.

         Legal Standard

         A court grants a motion for 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 bears the burden of establishing that no issue of fact exists and that the nonmovant cannot prove one or more essential elements of a claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the movant meets its burden, the nonmovant must “go beyond the pleadings [ ] by her own affidavits . . . [to] designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotation marks omitted). Conclusory allegations unsupported by factual material such as affidavits and documentary evidence are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). On summary judgment, the court must view all facts in a light most favorable to the nonmovant and draw all justifiable inferences in the nonmovant's favor. Narayan v. EGI, Inc., 616 F.3d 895, 899 (9th Cir. 2010).

         Discussion

         I. Oregon Employer Liability Law.

         Quirk's first claim arises under the Oregon Employer Liability Law (“ELL”), ORS §§ 654.305-.336. Section 654.305 of the“ELL imposes a heightened statutory standard of care on a person or entity who is either in charge of, or responsible for, any work involving risk or danger.” Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159 (2003). Under this heightened standard of care,

Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.

Or. Rev. Stat. § 654.305. Quirk alleges Skanska violated that standard by leaving the cleanroom trench uncovered, without a warning or adequate precautions to prevent a fall. Skanska seeks summary judgment, arguing first that the ELL does not apply to the circumstances of Quirk's accident and, second, that the vice principal rule bars the ELL claim because Quirk was a foreman at the time of his injury.

         A. Risk or Danger.

         Skanska contends the ELL does not apply here because Quirk's work in the cleanroom did not involve “risk or danger.” Skanska defines Quirk's “work” as the narrow task he was performing at the time of his injury - replacing the temporary test gauges with permanent gauges. Quirk argues his “work” also encompassed the location and circumstances of the task.

         The Oregon Supreme Court has interpreted “work involving a risk or danger to . . . employees” under ORS § 654.305 to include both the worker's discrete task and the circumstances under which the worker performs that task. Woodbury, 335 Or. at 161. In Woodbury, a defendant-contractor hired a plaintiff-subcontractor to construct a “decontamination pad” at a job-site, which entailed installing a pipe connecting the pad to adjacent equipment. Id. at 157-58. The pipe was suspended over a ten-foot pit, and to build it, workers constructed a temporary platform on which to stand. Id. at 162. The subcontractor later was tasked with dismantling the platform, and doing so, was injured when he lost his balance and fell into the pit below. Id. at 158. The subcontractor sued under the ELL and for negligence. Id. at 159. Interpreting the language of the ELL, the Oregon Supreme Court reasoned,

The words “any work” are inclusive, suggesting that the reference is to the tasks in which the employee was engaged. The phrase “involving a risk or danger” modifies “any work.” Thus, identifying the relevant scope of the work for purposes of the ELL requires an initial determination of whether the work involved a risk or danger to the employees or the public. “Risk” and “danger” are both words of common usage. Webster's Third New Int'[l] Dictionary 573 (unabridged ed 1993) indicates that “risk” and “danger” are synonyms for each other, as well as for “peril, ” “jeopardy, ” and “hazard.” Webster's first modern definition of “danger” is “the state of being exposed to harm: liability to injury, pain or loss: PERIL, RISK.” Id. Similarly, Webster's defines “risk” as “the possibility of loss, injury, disadvantage, or destruction: CONTINGENCY, DANGER, PERIL, THREAT.” Id. at 1961. Thus, as used in ORS 654.305, “risk” or “danger” refers to conditions of the work that create the possibility that a worker will suffer harm.

Id. at 161. The court therefore rejected the decision below that described the “work involving a risk or danger” as merely “moving the boards to facilitate disassembly of the platform, ” instead holding that the “work involving risk or danger” the subcontractor had performed more broadly “included requiring plaintiff to work at height during the assembly, use, and disassembly of the platform.” Id. at 162.

         Thus, for purposes of the ELL, Quirk's work in the cleanroom involved not only the gauge replacement but also the location and manner in which he had to access the gauges, which included navigating the ledge and the uncovered trench.

         Skanska next argues that the fall hazard posed by the trench was insufficient to constitute a risk or danger because of the trench's shallow depth. Quirk contends that determination is one for the jury.

         Whether work involves risk or danger under the ELL is a question of fact that the court may resolve at summary judgment only if no reasonable jury could conclude that risk or danger was involved. Golden v. Ash Grove Cement Co., No. CV 06-336-PK, 2007 WL 1500168, at *4-5 (D. Or. May 21, 2007) (declining to “invade the province of the jury to” determine whether a “risk or danger was involved where [plaintiff] was required to slide a heavy gangway along a metal track subject to blockage by falling debris”); Snyder v. Seneca Lumber Co., 297 Or. 572, 577 (1956) (“Ordinarily, the question of whether a particular employment is inherently dangerous is for the jury to decide . . . and it is only in clear cases that the court is authorized to decide, as a matter of law, that the work does not involve risk or danger.”).

         Here, a reasonable jury could conclude that the presence of an unmarked, uncovered, visually obscured trench created a “risk or danger” for Quirk's work in the cleanroom. Skanska rightfully notes that ELL cases involving fall hazards have usually involved heights greater than four feet. See, e.g., Woodbury, 335 Or. at 158, 161-62 (ten-foot fall); Spain v. Jones, 257 Or.App. 777, 779, 793-94 (2013) (nine-foot fall). But in so arguing, Skanska ignores other potentially hazardous circumstances that could have rendered the trench dangerous: the necessity of walking on the ledge, the narrow width of the ledge, the lack of warning or barrier about the newly uncovered trench, the potentially disorienting epoxy coating. Skanska also cites no authority to support the implied premise of its argument: that only falls from a certain height are subject to the ELL's coverage and falls below that height simply do not constitute risk or danger. Indeed, whether a particular height presents risk or danger is the very determination a jury must make. Thus, construed in a light most favorable to Quirk, these circumstances create a genuine issue of material fact as to whether Quirk's work in the cleanroom involved a risk or danger.

         Finally, Skanska argues that the accident here bore no “no relationship to the uncommon risks or dangers associated with . . . pipefitting, ” offering that under McLean v. Golden Gate Hop Ranch of Or., 195 Or. 26, 29 (1952), “the proper focus is on the nature of the duties of the injured employee in connection with the injuries sustained.” (Motion at 10 (emphasis in original).)

         McLean worked as a “lacer” for the defendant-farmer, which involved cutting vines while walking immediately in front of a crop-collecting truck, atop of which sat a detachable “crows nest” platform. McLean, 195 Or. at 29-30. The day of the accident, after McLean's crew had already finished harvesting their crop load and driven back to a storage area for unloading, McLean stood next to the loaded truck when she was struck by a heavy piece of equipment another worker had thrown from the top of an adjacent truck. Id. at 31. Addressing McLean's ELL claim, the Oregon Supreme Court held that because McLean “was engaged in ordinary farming operations[, ]” and “[ n]one of the work incident to the harvesting of the hops in the field was inherently dangerous[, ]” McLean's duties were “not accompanied by any more risk or danger than is present in any ordinary crop-harvesting operation, or other nonhazardous occupation.” Id. at 34-35.

         McLean reflects an older, more limited concept of ELL liability, common in other cases of the era. See, e.g., Wells v. Nibler, 189 Or. 593, 598 (1950) (holding that sawing a limb from a tree was not dangerous as a matter of law, noting “[f]rom time immemorial men, women and children have climbed trees and sawed off limbs without anything further required than agility and a saw”), overruled by Quick v. Andresen, 238 Or. 433, 440 (1964) (discussed below).

         Since that time, the Oregon appellate courts have moved away from this narrow view, instead embracing the broader construct explained in Woodbury, discussed supra. See, e.g., Snyder, 207 Or. at 577 (holding that, although scaling logs “in and of itself is not a hazardous occupation, ” it was for jury to decide whether doing so in the vicinity of “hazardous” logging activities posed a risk or danger); Richardson v. Harris, 238 Or. 474, 476-77 (1964) (holding “the question of risk or danger [wa]s for the jury” when plaintiff-farmer worker “struck his knee on a steel rung” while climbing a ladder inside a grain elevator); Quick v. Andresen, 238 Or. 433, 440 (1964) (“it is the particular work being done at the time, not the general type of employment, that determines risk or danger.”); Kruse v. Coos Head Timber Co., 248 Or. 294, 304 (1967) (plaintiff's injury caused by falling timber in an enclosed tower necessarily created a “jury question whether the work was so inherently dangerous or presented dangers so uncommon that the employment would be classed as work involving ‘risk or danger'”).

         In fact, McLean rarely has been cited in the decades since; one of the only such examples is Helland v. Hoffman Const. Co. of Oregon, No. 3:11-CV-01157-HU, 2013 WL 5937001 (D. Or. Nov. 3, 2013). That court invoked McLean to bar ELL recovery for a steamfitter who was injured on his way to a construction site when the school bus he was riding in, driven by the general contractor, crashed. Id. at *5-*6. The court “c[ould ]not say Helland's work at the time of his injury involved risk or danger simply because it was incidental to the duties he would later perform during his workday after arrival at the work site.” Id. at *5. Therefore, “there [wa]s no genuine issue of fact as to whether Helland's work as a steamfitter was rendered inherently dangerous by [the contractor]'s use of an old school bus to transport workers to the construction site.” Id. at *6.

         McLean's application in Helland illustrates that under current ELL case law, McLean's lasting jurisprudential significance, if any, is that to recover under the ELL, a plaintiff's injuries must be attributable to the work plaintiff actually performs, as opposed to conditions unrelated or merely incidental to his duties. Unlike McLean or Helland, Quirk was injured in the direct vicinity of and in the process of performing the gauge replacement. And, under Snyder, even if pipefitting is not itself an inherently dangerous occupation, as detailed above, a reasonable jury could find that performing such work in the vicinity of an active construction site, particularly one containing narrow, uneven walking surfaces and an uncovered trench, involves a risk or danger. Thus, summary judgment as to the risk or danger of Quirk's work in the cleanroom is inappropriate.

         B. Indirect Employer Liability.

         Skanska also refutes liability under the ELL based on its indirect ...


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