Boothby v. D.R. Johnson Lumber Co.

• Decision Date: 15 June 2006
• Docket Number: (CC 9812-09070; CA A110786; SC S50142).
• Citation: 341 Or. 35,137 P.3d 699
• Parties: Marilu E. BOOTHBY, individually and as Personal Representative of the Estate of Winston Boothby, deceased, for the benefit of Marilu E. Boothby, surviving spouse; Marilu E. Boothby, guardian ad litem for Brett M. Boothby, a minor, Cheryl M. Davis, a minor, Shayne N. Davis, a minor, and Rodney R. Davis, Jr., a minor, children of decedent; Michael T. Boothby and Gloria Negron, surviving parents of decedent, Petitioner on Review, v. D.R. JOHNSON LUMBER CO., an Oregon corporation, Respondent on Review, and Rhine Equipment Company and Barko Hydraulics, L.L.C., fka Barko Hydraulics, Inc., fka Barko Hydraulics, Defendants.
• Court: Oregon Supreme Court

Page 699

137 P.3d 699

341 Or. 35

Marilu E. BOOTHBY, individually and as Personal Representative of the Estate of Winston Boothby, deceased, for the benefit of Marilu E. Boothby, surviving spouse; Marilu E. Boothby, guardian ad litem for Brett M. Boothby, a minor, Cheryl M. Davis, a minor, Shayne N. Davis, a minor, and Rodney R. Davis, Jr., a minor, children of decedent; Michael T. Boothby and Gloria Negron, surviving parents of decedent, Petitioner on Review, v. D.R. JOHNSON LUMBER CO., an Oregon corporation, Respondent on Review, and Rhine Equipment Company and Barko Hydraulics, L.L.C., fka Barko Hydraulics, Inc., fka Barko Hydraulics, Defendants.

(CC 9812-09070; CA A110786; SC S50142).

Supreme Court of Oregon.

Argued and Submitted September 8, 2004.

Decided June 15, 2006.

On review from the Court of Appeals.^*

Meagan A. Flynn, Preston Bunnell & Stone, LLP, Portland, argued the cause and filed the brief for petitioner on review.

Peter R. Chamberlain, Bodyfelt Mount Stroup & Chamberlain, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Andrew D. Glascock.

KISTLER, J.

Plaintiff brought this action against D.R. Johnson Lumber Co. (Johnson Lumber) after plaintiff's husband died in a logging accident. Plaintiff claimed that Johnson Lumber was liable for her husband's death both under Oregon's Employer Liability Law (ELL), ORS 654.305 to 654.336, and common-law negligence. A jury returned a verdict for plaintiff on both claims, but the Court of Appeals reversed, holding that no reasonable juror could find that Johnson Lumber was responsible under either claim for the acts and omissions that led to plaintiff's husband's death. Boothby v. D.R. Johnson Lumber Co., 184 Or.App. 138, 55 P.3d 1113 (2002). We allowed plaintiff's petition for review and now affirm the Court of Appeals decision.

Because this case arises on Johnson Lumber's motion for a directed verdict, we set out the facts in the light most favorable to plaintiff. Johnson Lumber purchased the timber rights from the State of Washington on a tract of land located in that state. Johnson Lumber then contracted with Intermountain Forest Management (Intermountain) to harvest the timber. The contract between Johnson Lumber and Intermountain provided that Johnson Lumber "is interested only in the results to be achieved and, except for the timing of [logging] operations, the conduct and control of the [logging] work will lie solely with [Intermountain]."

Intermountain employed plaintiff's husband, Boothby, who worked at the logging site. At the end of the work day, Boothby and another employee, Hatt, were headed back to the crew bus and needed to get by an operating log loader. Hatt signaled the person operating the log loader, who put it into idle. Hatt continued walking toward the crew bus while Boothby stopped and knelt down. Without warning, the log loader operator began backing up. Hatt and another coworker shouted to Boothby, but he failed to get up. Boothby's coworkers tried unsuccessfully to signal the operator to stop. The log loader caught Boothby's ankle and rolled over him, causing his death. This action followed.¹

At trial, plaintiff presented evidence of unsafe operations at the job site. Among other things, the jury could have found that duct tape and plastic had obscured one of the log loader's windows, limiting the operator's ability to see. Further, the log loader did not have an automatic device, such as a beeper, to signal the loader's movement, and a counterweight had blocked the operator's view. Finally, Intermountain had not provided any safety training for its employees, including the person operating the log loader.

In moving for a directed verdict, Johnson Lumber did not dispute that a reasonable juror could find that Intermountain had either maintained or operated the log loader in an unsafe fashion. Johnson Lumber argued, however, that it was not liable for Intermountain's acts and omissions. The trial court denied Johnson Lumber's motion and submitted both the ELL and the negligence claims to the jury, which returned a verdict for plaintiff on both claims. The jury found that Johnson Lumber was 60 percent at fault on the ELL claim and 67 percent at fault on the negligence claim. The jury also found that plaintiff suffered $900,000 in economic damages and $3,125,000 in noneconomic damages; the trial court reduced those amounts to take into account both the jury's allocation of fault and a cap on noneconomic damages.

Plaintiff appealed and Johnson Lumber cross-appealed from the resulting judgment. Reaching only the issues raised by Johnson Lumber's cross-appeal, the Court of Appeals reversed. It held that Johnson Lumber was not liable under the ELL because there was no evidence that it had a right to control the operation of the log loader or that it was engaged in a common enterprise with Intermountain. Boothby, 184 Or.App. at 155, 55 P.3d 1113. On plaintiff's negligence claim, the court held that, on the facts of the case, Intermountain's status as an independent contractor shielded Johnson Lumber from liability for Boothby's injuries. Id. at 161, 55 P.3d 1113. Having concluded that the trial court should have granted Johnson Lumber's directed verdict motion, the Court of Appeals reversed the trial court's judgment. Id. at 162, 55 P.3d 1113.

On review, plaintiff argues that the Court of Appeals erred in reversing the trial court's rulings on both her ELL and her negligence claims. We begin with the ELL.² The ELL "imposes a heightened statutory standard of care on a person or entity who either is in charge of, or responsible for, any work involving risk or danger." Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159, 61 P.3d 918 (2003). That statute provides:

"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 [sic] and devices."

ORS 654.305.

In this case, the jury reasonably could find that the operation of the log loader without adequate safety devices was "work involving a risk or danger" for which the ELL required the use of "every device, care and precaution that is practicable to use for the protection and safety of life and limb." See Woodbury, 335 Or. at 161, 61 P.3d 918 (holding that statutory phrase "risk or danger" refers to "conditions of the work that create the possibility that a worker will suffer harm").³ More specifically, the jury could find that operating the log loader without sufficient safety procedures or devices violated the ELL. The issue on which this case turns is whether the jury also could find that Johnson Lumber was responsible for the method or manner in which Intermountain operated the log loader.

On that issue, the ELL imposes liability on "all owners, contractors or subcontractors and other persons having charge of, or responsibility for," work involving a risk or danger. ORS 654.305. Interpreting the quoted wording, this court has held that, in addition to a worker's direct employer, liability under the ELL

"can be imposed on a person or entity who (1) is engaged with the plaintiff's direct employer in a `common enterprise'; (2) retains the right to control the manner or method in which the risk-producing activity was performed; or (3) actually controls the manner or method in which the risk-producing activity is performed."

Woodbury, 335 Or. at 160, 61 P.3d 918 (omitted; summarizing Wilson v. P.G.E. Company, 252 Or. 385, 391-92, 448 P.2d 562 (1968)). Here, Johnson Lumber was not Boothby's direct employer, and plaintiff does not contend that Johnson Lumber actually controlled the manner or method in which Intermountain operated the log loader. Moreover, plaintiff does not argue on review that Johnson Lumber and Intermountain were engaged in a common enterprise.⁴ The question under the ELL accordingly reduces to whether a reasonable juror could find that Johnson Lumber "retain[ed] the right to control" the manner or method in which Intermountain operated the log loader.

In order to establish that Johnson Lumber retained a right to control how Intermountain operated the log loader, plaintiff must identify some source of legal authority for that perceived right. See Wilson, 252 Or. at 392-97, 448 P.2d 562 (looking to the defendant's contractual right to control how contractor's employees performed work to determine the defendant's retained right to control). In analyzing that issue, we begin with the contract between Johnson Lumber and Intermountain. If the contract does not resolve the matter in plaintiff's favor, we then turn to the other evidence that plaintiff asserts establishes that Johnson Lumber retained the right to control Intermountain's operation of the log loader.

Johnson Lumber and Intermountain entered into a logging agreement on March 11, 1998. In that agreement, Johnson Lumber reserved only "the right to control times of operation and log flow if conditions so warrant." Consistently with that limited reservation of the right to control, the agreement provides that "[Johnson Lumber] is interested only in the results to be achieved and, except for the timing of operations, the conduct and control of the work will lie solely with [Intermountain]." Finally, after repeating that "[Johnson Lumber] shall have the right, at its option, to control the timing of [Intermountain's] performance hereunder," the agreement provides:

"[Intermountain], at [Intermountain's] expense, shall be solely responsible for providing and maintaining all supplies and equipment[;⁵] safety, fire prevention and...