Boothby v. DR Johnson Lumber Co.

• Decision Date: 09 October 2002
• Citation: 55 P.3d 1113,184 Or.App. 138
• Parties: Marilu E. BOOTHBY, 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, Appellants-Cross-Respondents, v. D.R. JOHNSON LUMBER CO., an Oregon corporation, Respondent-Cross-Appellant, and Rhine Equipment Company and Barko Hydraulics, L.L.C., fka Barko Hydraulics, Inc., fka Barko Hydraulics, Defendants.
• Court: Oregon Court of Appeals

55 P.3d 1113

184 Or.App. 138

Marilu E. BOOTHBY, 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, Appellants-Cross-Respondents, v. D.R. JOHNSON LUMBER CO., an Oregon corporation, Respondent-Cross-Appellant, and Rhine Equipment Company and Barko Hydraulics, L.L.C., fka Barko Hydraulics, Inc., fka Barko Hydraulics, Defendants.

9812-09070; A110786.

Court of Appeals of Oregon.

Argued and Submitted April 3, 2002.

Decided October 9, 2002.

Meagan A. Flynn, Portland, argued the cause for appellants-cross-respondents Marilu E. Boothby. With her on the briefs was Preston Bunnell & Stone, LLP.

Peter R. Chamberlain, Portland, argued the cause for respondent-cross-appellant D.R. Johnson Lumber Co. With him on the briefs was Bodyfelt Mount Stroup & Chamberlain.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

BREWER, J.

Winston Boothby was crushed to death under a log loader. Plaintiff, individually and as the personal representative of Boothby's estate, alleged claims against defendant D.R. Johnson Lumber Co. (Johnson Lumber) for common-law negligence and for violations of the Employer Liability Act (ELA), ORS 654.305 to 654.336, and the Oregon Safe Employment Act (OSEA), ORS 654.001 to 654.295 and related statutes.¹ The jury returned a verdict in plaintiff's favor against Johnson Lumber on plaintiff's common-law negligence and ELA-based claims, awarding economic damages of $900,000 and noneconomic damages of $3,125,000. Pursuant to ORS 18.560, the trial court reduced the noneconomic damages to $500,000. It then reduced the total of the economic and noneconomic damages by Boothby's percentage of comparative fault as found by the jury and entered judgment for plaintiff in the amount of $938,000 plus costs. Plaintiff appeals, and defendant cross-appeals. We reverse on defendant's cross-appeal and therefore do not reach plaintiff's assignments of error on appeal.²

We take the undisputed facts from the record. Johnson Lumber entered into a contract with the State of Washington Department of Natural Resources to purchase, cut, and remove timber from certain state-owned land. Johnson Lumber then contracted with Intermountain Forest Management (Intermountain) to perform the logging work. At the time of his death, Boothby was working as a member of an Intermountain logging crew.

On April 2, 1998, Boothby and other employees of Intermountain were transported by a crew bus to the work site in the State of Washington. At the end of Boothby's approximately eight-hour work shift, Boothby and a coworker, Lanny Hatt, began walking down a road to the crew bus. Boothby was carrying a chain saw, a lunch sack, and several other items.

Partway down the road, Boothby and Hatt encountered a log loader moving logs from one side of the road to the other. The two men waited until Hatt got the attention of the operator, who then put the machine in idle and signaled for them to pass. Hatt walked past the loader, then noticed that Boothby was not with him. He looked back and saw that Boothby was still in the position where the two men had stopped, but was now down on one knee. Hatt called to Boothby, who signaled that he should go ahead. Hatt again resumed walking down the road, then realized that the loader had begun backing toward Boothby, who was still down on his knee. He yelled at Boothby, who looked up, then seemed to "freeze." Jack Pitman, the site foreman, also saw the loader moving toward Boothby. He saw Boothby start to pick up the chain saw and yelled at him to leave the saw and get out of the way. He then saw Boothby turn toward the loader and seem to pause. Hatt and Pitman attempted to get the loader operator's attention, but were unable to do so. The loader continued backing up. As Boothby started to stand up, the loader caught his ankle, then backed over him, causing fatal injuries.

As noted, plaintiff alleged claims against Johnson Lumber for common-law negligence and violations of the ELA and the OSEA. The jury returned a verdict in plaintiff's favor on her common-law negligence and ELA-based claims. After reducing the damages under ORS 18.560(1) and by the percentage of Boothby's comparative fault as found by the jury, the trial court entered judgment for plaintiff in the amount of $938,000 plus costs.

On appeal, plaintiff asserts that the trial court erred in applying the $500,000 noneconomic damages limitation provided in ORS 18.560(1) and, alternatively, in applying that limitation before, rather than after, reducing the amount of damages to reflect Boothby's comparative fault. Johnson Lumber cross-appeals, arguing that the trial court erred in denying its motions for directed verdict on plaintiff's common-law negligence and ELA-based claims; in failing to give its requested instruction regarding its liability for the torts of independent contractors—here, Boothby's employer Intermountain; in excluding evidence of Boothby's marijuana use and expert testimony regarding the effects of that use; in admitting evidence of Boothby's so-called "freeze response" at the time of the accident; in admitting opinion testimony regarding defendant's legal duty to inspect Boothby's employer's logging equipment and regarding defendant's compliance with safety laws relating to the log loader that killed Boothby; and in granting plaintiff's motion for partial directed verdict as to the contributory negligence of the manufacturer of the log loader.

If our disposition of one or more of Johnson Lumber's assignments of error on cross-appeal requires reversal of the trial court's judgment in its entirety, we need not reach plaintiff's assignments of error on appeal. We therefore begin with the former.

In its first assignment of error, Johnson Lumber argues that the trial court erred in denying its motion for directed verdict on plaintiff's ELA claim. ORS 654.305 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 and devices."

As this court explained in Woodbury v. CH2M Hill, Inc., 173 Or.App. 171, 21 P.3d 153, rev. allowed, 333 Or. 73, 36 P.3d 974 (2001), the ELA imposes a heightened standard of care on employers and others who are "in charge of work involving `risk or danger.'" Id. at 176, 21 P.3d 153 (citing and quoting Miller v. Georgia Pacific Corp., 294 Or. 750, 753, 662 P.2d 718 (1983)). The ELA applies not only to direct employers but also to "indirect" employers. Indirect employer liability is triggered if any of three conditions is satisfied: (1) the plaintiff's direct employer and the defendant are 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. Id. at 177, 21 P.3d 153 (citing Wilson v. P.G.E. Company, 252 Or. 385, 390-92, 448 P.2d 562 (1968); Brown v. Boise-Cascade Corp., 150 Or.App. 391, 396, 946 P.2d 324 (1997), rev. den., 327 Or. 317 (1998)).

In determining whether the trial court correctly denied Johnson Lumber's motion for directed verdict on plaintiff's ELA-based claim, we examine the evidence and all inferences that can be drawn from it in the light most favorable to plaintiff, the nonmoving party. If there is some evidence to support each element of plaintiff's claim, a directed verdict properly was denied. Brown, 150 Or.App. at 395 n. 4,946 P.2d 324 (citing Hickey v. Settlemier, 141 Or.App. 103, 108, 917 P.2d 44,rev. den., 323 Or. 690, 920 P.2d 549 (1996)); see also Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984)

(reviewing court will not set aside a jury's verdict in the plaintiff's favor unless it can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish the elements of the plaintiff's claim). We begin by considering whether there was evidence to demonstrate that Johnson Lumber was subject, in the first instance, to ELA-based negligence liability for Boothby's death.

In this court, Johnson Lumber argues that it is not subject to ELA-based liability for Boothby's death and therefore was entitled to a directed verdict on that claim, because there was no evidence from which the jury could find that it actually controlled the work that created the risk of danger to Boothby, that it retained the right to control that work, or that it was engaged in a common enterprise with Boothby's employer Intermountain. Johnson Lumber notes that plaintiff conceded that it did not actually control the work that created the risk of danger. In addition, it argues that the agreement between it and Intermountain did not provide for it to retain any right to control Intermountain's operations or employees. As to evidence of a common enterprise, Johnson Lumber argues that there was no evidence that any of Johnson Lumber's employees was involved in Intermountain's logging operation or that any Intermountain employee received instructions from Johnson Lumber or used Johnson Lumber equipment.

Plaintiff responds that Johnson Lumber was subject to the ELA under the "retained control" test because, according to plaintiff, Johnson Lumber's contract with the State of...