Brown v. Boise-Cascade Corp., BOISE-CASCADE

• Court: Court of Appeals of Oregon
• Writing for the Court: Before DEITS; HASELTON
• Citation: 150 Or.App. 391,946 P.2d 324
• Parties: Gaylen BROWN, Appellant, v.CORPORATION, a Delaware corporation, Respondent. 9403-02265; CA A89371.
• Decision Date: 08 October 1997
• Docket Number: BOISE-CASCADE

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946 P.2d 324 150 Or.App. 391 Gaylen BROWN, Appellant,
v.
BOISE-CASCADE CORPORATION, a Delaware corporation, Respondent. 9403-02265; CA A89371. Court of Appeals of Oregon. Argued and Submitted Feb. 19, 1997.
Decided Oct. 8, 1997.

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J. Rion Bourgeois argued the cause and filed the briefs for appellant.

Thomas M. Christ argued the cause for respondent. With him on the briefs was Mitchell, Lang & Smith.

Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.

[150 Or.App. 393] HASELTON, Judge.

Plaintiff, who suffered grievous injuries after he fell from a structure at defendant Boise Cascade Corporation's St. Helens paper mill, appeals from an adverse judgment entered after a jury trial on claims of negligence, negligence per se, and violation of the Employer's Liability Law (ELA), ORS 654.305 et seq. Plaintiff raises 22 assignments of error challenging both the trial court's refusal to submit substantial aspects of his claims to the jury, as well as rulings pertaining to those matters that were submitted to the jury. Defendant asserts, through four cross-assignments of error, that the trial court erred in denying its motions for a directed verdict as to each of plaintiff's claims. Based primarily on our disposition of the cross-assignments of error, we affirm the trial court in most respects but reverse and remand for a new trial on that portion of plaintiff's negligence per se claim that pertains to alleged inadequate lighting in the workplace.

Plaintiff worked as a painter for Partridge Industrial Coating (Partridge). In early April 1992, defendant contracted with Partridge to have its St. Helens paper mill painted. That painting was part of a general "sprucing up" of the mill before a tour by company executives and other mill managers. ¹ On April 3, 1992, plaintiff was engaged in painting part of a very large room in the plant, called the "core room" because it contained "cores," which are the cardboard frames around which defendant wraps paper as it is produced. The core room was approximately 160 feet long, 65 feet wide, and 30 feet high. In one corner of, and inside, the core room was a smaller room, the "sample room," which was fully enclosed by walls and a roof. The sample room was 22 feet long, 11 feet wide, and nine feet high.

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Partridge's foreman, Tom Tallon, directed plaintiff to paint the portion of the core room wall that was adjacent to the sample room. To perform that work, plaintiff climbed onto the sample room's roof, using a ladder. There were no railings around the sample room roof and no fall protection [150 Or.App. 394] below that area. Although Partridge had provided plaintiff with a harness and a lanyard, he did not tie the lanyard to anything. As plaintiff was standing on the sample room roof and was painting the core room wall, he fell from the roof to the core room floor. Plaintiff fractured his neck and was rendered quadriplegic.

Plaintiff filed this action on March 31, 1994, alleging claims for negligence and violation of the ELA. Plaintiff asserted nine specifications of common law negligence, including failure to provide railings, lack of fall protection, and failure to provide adequate lighting for his painting activities. ² As part of his negligence claim, plaintiff further alleged that defendant had violated regulations promulgated under the Oregon Safe Employment Act (OSEA), and that those violations materially contributed to his injuries. ³ Plaintiff asserted, particularly, that defendant had violated regulations that required: (1) guardrails on platforms; (2) scaffolds and guardrails on scaffolds; (3) adequate fall protection equipment; (4) adequate lighting; and (5) workplace safety instruction.

[150 Or.App. 395] The case was tried to a jury. Before submission, defendant moved for a directed verdict against each of plaintiff's claims. Although the court denied the motions, it did strike all specifications of negligence other than those pertaining to inadequate lighting and all allegations of regulatory violations other than those pertaining to inadequate lighting. Thus, although plaintiff's negligence, negligence per se (based on OSEA) and ELA claims were submitted to the jury, the only allegations the jury actually considered concerned inadequate lighting. The jury returned a defense verdict, specifically determining that (1) defendant was not subject to the ELA; (2) defendant either had not violated the OSEA or, if so, that violation had not caused plaintiff's injuries; and (3) defendant was not negligent with respect to inadequate lighting or, if so, that negligence had not caused plaintiff's injuries.

On appeal, plaintiff raises 22 assignments of error that challenge: (1) the trial court's rulings striking all of his allegations other than those pertaining to inadequate lighting and (2) various rulings pertaining to the inadequate lighting allegations. Defendant, through four cross-assignments of error, argues that we need not address the particulars of plaintiff's assignments because, in all events, defendant was entitled to a directed verdict against each of plaintiff's claims in its entirety. For clarity of analysis, we begin by addressing the cross-assignments.

In its first cross-assignment, defendant contends that the court erred in denying a directed verdict against plaintiff's ELA claim in its entirety. Defendant argues that,

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even viewing the evidence most favorably to plaintiff, ⁴ plaintiff failed to prove the requisites of ELA liability. As explained below, we agree.

The ELA imposes a heightened standard of care on employers or others who are in charge of work involving danger or risk to employees. Miller v. Georgia-Pacific Corp., 294 Or. 750, 753, 662 P.2d 718 (1983). ORS 654.305 provides:

[150 Or.App. 396] "Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it 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."

The ELA applies not only to direct employers but also to "indirect employers." See, e.g., Miller, 294 Or. at 754, 662 P.2d 718.

Here, plaintiff asserted that defendant was his indirect employer for ELA purposes. Before a defendant can be held liable as an indirect employer under the ELA,

"the defendant must be in charge of or have responsibility for work involving risk or danger in either (a) a situation where defendant and plaintiff's employer are simultaneously engaged in carrying out work on a common enterprise, or (b) a situation in which the defendant retains a right to control or actually exercises control as to the manner or method in which the risk-producing activity is performed." Miller, 294 Or. at 754, 662 P.2d 718 (citations omitted).

Thus, "indirect employer" liability is triggered if any of three disjunctive tests is satisfied: (1) the "common enterprise" test; (2) the "retained control" test; or (3) the "actual control" test. Id.; see also Wilson v. P.G.E. Company, 252 Or. 385, 391-92, 448 P.2d 562 (1969); Quackenbush v. PGE, 134 Or.App. 111, 114-16, 894 P.2d 535, rev den 322 Or. 193, 903 P.2d 886 (1995). Defendant contends that none of those tests was met; conversely, plaintiff asserts that the evidence was sufficient to satisfy any or all of those tests.

We first consider "common enterprise" liability. To be held liable as a participant in a "common enterprise," a defendant employer must "do more than have its own employees working with plaintiff toward the furtherance of a common enterprise." Sacher v. Bohemia, Inc., 302 Or. 477, 485, 731 P.2d 434 (1987). Rather, the defendant must exercise "control or charge over the activity or instrumentality that causes the injury[.]" Id. at 486, 731 P.2d 434 (footnote omitted):

150 Or.App. 397] "When, as the result of the activities of defendant's employees or use of his equipment, a risk of danger is created which contributes to an injury to plaintiff who is the employee of another engaged in work on the same project, defendant has been considered to have sufficient control over the work to be subject to the duties imposed by the [ELA]. * * * We do not construe the ELA to impose a duty upon each employer, engaged in a common enterprise with another, to make safe the equipment and method of work of the other, even though both have a measure of control over the activity in which they are jointly engaged. The injury must result by virtue of the commingling of the activities of the two employers and not be solely attributable to the activities or failures of the injured workman's employer." Wilson, 252 Or. at 391-92, 448 P.2d 562 (citation omitted)

See Quackenbush, 134 Or.App. at 115, 894 P.2d 535 ("Although an employer can be 'in charge' of an activity that forms only a component part of the common enterprise, that component part must be part of the commingling of the activities of the two employers out of which the injury arises."); Schroeder

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v. Northrop Services, Inc., 86 Or.App. 112, 118-19, 739 P.2d 33, rev den 304 Or. 185, 743 P.2d 735 (1987) (the defendant's participation in joint activity and the plaintiff's injury were causally linked).

The thrust of those holdings is that, to trigger common enterprise liability, there must be a causal link between the defendant's involvement in joint work and the plaintiff's injury. Here, there was no such nexus. Viewed most favorably to plaintiff, the evidence established that plaintiff's employer, Partridge, and defendant were both participants in the project of "sprucing up" the St. Helens mill in preparation for a visit by Boise Cascade executives. Partridge was painting certain...