Cain v. Bovis Lend Lease, Inc.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Citation817 F.Supp.2d 1251
Docket NumberNo. CV. 09–723–HU.,CV. 09–723–HU.
PartiesMichael CAIN and Jennifer Cain, Individuals, Plaintiffs, v. BOVIS LEND LEASE, INC., a Florida corporation; and Willamette Valley Medical Center, LLC, a Delaware limited liability company; Defendants and Third–Party Plaintiffs, v. Wylie Steel Fabricators, Inc., a Tennessee corporation; and Earl Swensson Associates, Inc., a Tennessee corporation; Third–Party Defendants.
Decision Date13 September 2011

817 F.Supp.2d 1251

Michael CAIN and Jennifer Cain, Individuals, Plaintiffs,
v.
BOVIS LEND LEASE, INC., a Florida corporation; and Willamette Valley Medical Center, LLC, a Delaware limited liability company; Defendants and Third–Party Plaintiffs,
v.
Wylie Steel Fabricators, Inc., a Tennessee corporation; and Earl Swensson Associates, Inc., a Tennessee corporation; Third–Party Defendants.

No. CV. 09–723–HU.

United States District Court, D. Oregon.

Sept. 13, 2011.


[817 F.Supp.2d 1257]

Ernest J. Simmons, Karen R. Thompson, Robert K. Udziela, Portland, OR, for Plaintiffs.

John J. Soltys, William F. Knowles, Ramona N. Hunter, Cozen O'Connor, Seattle, WA, for Defendant and Third–Party Plaintiff, Bovis Lend Lease, Inc.

Steven P. Jones, Karen V. Wiggins, Keating Jones Hughes PC, Portland, OR, for Defendant and Third–Party Plaintiff, Willamette Valley Medical Center, LLC.Matthew C. Casey, Bullivant Houser Bailey, PC, Portland, OR, for Third–Party Defendant, Wylie Steel Fabricators, Inc.Angela M. Otto, Tyler J. Storti, Stewart Sokol & Gray LLC, Portland, OR, for Third–Party Defendant, Earl Swensson Associates, Inc.
ORDER
HERNANDEZ, District Judge:

Magistrate Judge Dennis J. Hubel issued a Findings and Recommendation (doc. # 162) on July 14, 2011, in which he recommends that I grant in part and deny in part the motions for summary judgment (doc. # 120, # 127, and # 132) filed by Willamette Valley Medical Center, LLC (“Willamette Valley”), Wylie Steel Fabricators, Inc. (“Wylie Steel”), and Bovis Lend Lease, Inc. (“Bovis”) (collectively, “Defendants”), respectively. In the Findings and Recommendation, the Magistrate Judge also recommends that I grant the motion for partial summary judgment (doc. # 123) filed by Earl Swensson Associates, Inc. (“ESA”).

Plaintiff Michael Cain and Jennifer Cain (collectively, the “Cains”) and Defendants timely filed objections to the Magistrate Judge's Findings and Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.2009); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc).

I have carefully considered the parties' objections and conclude that the objections do not provide a basis to modify the Findings and Recommendation. I have also reviewed the pertinent portions of the record de novo and find no error in the Magistrate Judge's Findings and Recommendation.

CONCLUSION

The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation

[817 F.Supp.2d 1258]

(doc. # 162). Defendants' motions for summary judgment (doc. # 120, # 127, and # 132) are therefore granted in part and denied in part, and ESA's motion for partial summary judgment (doc. # 123) is granted. Oral argument is unnecessary.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATIONS ON MOTIONS FOR SUMMARY JUDGMENT
DENNIS JAMES HUBEL, Unites States Magistrate Judge:
+-------------------+
                ¦TABLE OF CONTENTS ¦
                +-------------------+
                
INTRODUCTION 1258
                SUMMARY JUDGMENT STANDARDS 1261
                ESA'S MOTION FOR PARTIAL SUMMARY JUDGMENT 1261
                CAIN'S CLAIMS UNDER THE OREGON SAFE EMPLOYMENT ACT 1262
                
 First Claim for Relief: Violation of OSEA § 654.015 and Second Claim for Relief: Violation of OSEA § 654.010 1266
                 Bovis's Motion 1266
                 Willamette Valley's Motion 1267
                 Wylie Steel's Motion 1271
                
THIRD CLAIM FOR RELIEF: PREMISES LIABILITY 1271
                FOURTH CLAIM FOR RELIEF: BOVIS'S VIOLATION OF THE ELA 1276
                FIFTH CLAIM FOR RELIEF: NEGLIGENCE 1278
                SIXTH CLAIM FOR RELIEF: LOSS OF CONSORTIUM 1282
                WYLIE STEEL'S MOTION 1283
                
 Wylie Steel's Statute of Limitations Defense 1283
                 Assertion of a New Claim 1288
                 Indemnity Claims 1288
                
CONCLUSION 1289
                SCHEDULING ORDER 1290
                
INTRODUCTION

This is an action arising from injuries suffered by the plaintiff Michael Cain (“Cain”) when he fell from a ladder while working on a renovation project at Willamette Valley Medical Center (“Willamette Valley” or “the hospital”). Cain brings claims against all of the defendants for violation of the Oregon Safe Employment Act (“OSEA”), O.R.S. § 654.015, and for common-law negligence. He brings additional claims against Bovis Lend Lease (“Bovis”) for violation of OSEA § 654.010, premises liability, and violation of the Oregon Employer Liability Act (“ELA”), O.R.S. §§ 654.305–654.335; and against Willamette Valley for premises liability. Dkt. # 91, Second Amended Complaint. Cain seeks “general damages” up to $3,000,000; ongoing lost income in excess of $58,500; lost earning capacity in the amount of $650,000; and ongoing medical bills in excess of $229,722.28. Mrs. Cain brings a loss of consortium claim against all of the defendants, seeking damages in the amount of $300,000. Id.

The basic facts of the case are straightforward and, except as discussed later in this opinion, largely undisputed. The following factual summary is taken from the Second Amended Complaint, and the defendants' motions for summary judgment. See Dkt. # 91, Second Amended Complaint; Dkt. # 121, Willamette Valley's memorandum, at 9–11; Dkt. # 148, Cain's response to Willamette Valley's statements of material fact; Dkt. # 124, ESA's Concise Statement of Material Facts; Dkt. # 129, Wylie Steel's Concise Statement of Material Facts; Dkt. # 133, Bovis's Statement

[817 F.Supp.2d 1259]

of Undisputed Facts; and Dkt. # 147, Cain's response to Bovis's statement of material facts.

In 2006, Willamette Valley and its former owner, Triad Hospitals, Inc., contracted with Bovis, as general contractor, for a major renovation to Willamette Valley's health care facility in McMinnville, Oregon. Bovis, in turn, contracted with McDonald & Wetle (“McDonald”), a commercial roofing company, to install a new roof as part of the project. Cain was an experienced roofer who was employed as a foreman by McDonald.

Willamette Valley also contracted with Earl Swensson Associates, Inc. (“ESA”) to perform architectural design work for the project. As part of ESA's contract with Willamette, ESA designed a fixed metal ladder to be installed on Willamette's premises to allow access from a lower roof to the “penthouse roof.” Actual fabrication of the ladder was done by Wylie Steel Fabricators, Inc. (“Wylie Steel”), a Bovis subcontractor. In approximately September of 2007, Bovis installed the ladder on Willamette Valley's premises. The ladder was accessible only by authorized personnel through an internal maintenance area at the hospital. Construction workers used the ladder as needed while work progressed on the renovation project. Cain, himself, had used the ladder more than once prior to his accident. See Dkt. # 122, Ex. 9, Cain Depo., at pp. 114–15.

In December 2007 and January 2008, Willamette was experiencing problems with ongoing roof leaks from the newly-installed penthouse roof. On January 10, 2008, McDonald sent Cain to the site to investigate the roof leaks. Cain was met at the job site by Delbert Allen, a Bovis employee, who provided access to the restricted area using a key issued to him by Willamette Valley. Cain had investigated the roof leaks on at least two previous occasions. This time, Cain was going to conduct a flood test, where he would plug the drains and then flood the penthouse roof to determine the exact location and cause of the leaks.1 Equipment required for the test included drain plugs and a hose.

Cain testified that the ladder “looked fine” to him, and he did not observe anything unusual or wrong with the ladder on the day of his accident. Id., p. 116. If he had noticed anything wrong with the ladder, he would have reported it and not climbed the ladder. Dkt. # 122, Ex. 9, Cain Depo., at pp. 114–15. However, he also testified the ladder was somewhat awkward to climb because of its width. Doc. No. 144, Ex. A, Cain Depo., at pp. 125, 127.

Cain began climbing the ladder with a hose coiled over his shoulder. He also was carrying two drain plugs in his hands as he walked to the ladder, but he claims he did not climb the ladder with the drain plugs in his hands. Dkt. # 147, p. 7. Drain plugs are visible in photographs taken of Cain immediately after the accident. See Decl. of Ramona N. Hunter, Dkt. # 134, Ex. D.

[817 F.Supp.2d 1260]

Cain testified he put the hose over his shoulder, and then began climbing the ladder hand-over-hand, “because it was uncomfortable to go side rail.” Dkt. # 134, Ex. A, Cain Depo., p. 258; see Dkt. # 144, Ex. 1, Cain Depo., p. 127. As Cain neared the top of the ladder, he “put [his] hand on the grab rail to pull [himself] up over the parapet, up over the edge,” id., and he fell from the ladder to the roof, about seventeen feet below, sustaining severe injuries. Cain claims the ladder was defective and its design dangerous, and these alleged defects were the proximate cause of his fall.

Cain agrees that at the time of the accident, he was “a trained roofer, with 20 years of experience,” and he “knew the basic rules of ladder safety, the most fundamental of which were (1) not to climb with your hands encumbered; and (2) always maintain three points of contact on the ladder at all times.” Dkt. # 147, p. 8. Cain believes he “had all hands and feet where they should have been” immediately prior to the fall. Dkt. # 134, Ex. A, Cain Depo., p. 207.

After the accident, McDonald was cited by the Oregon Occupational Safety and Health Division “for failing to provide adequate fixed ladder training.” Dkt. # 147, p. 11; see Dkt. # 134, Ex. E, Citation and Notification of Penalty. The parties agree that McDonald is “statutorily immune from liability as Mr. Cain's employer.” Id., p. 12.

All of the defendants have filed motions for summary judgment.2 Bovis, Willamette Valley, and Wylie Steel seek summary judgment on all of Cain's claims. ESA seeks partial summary...

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