Duk Hwan Chung v. Fred Meyer, Inc.
| Decision Date | 26 November 1976 |
| Parties | DUK HWAN CHUNG, Appellant, v. FRED MEYER, INC., an Oregon Corporation, dba Eve's Kitchen, Respondent, and Colborne Manufacturing Company, a Foreign Corporation, Defendant. |
| Court | Oregon Supreme Court |
Donald D. Nash, Portland, argued the cause for appellant. With him on the brief were Nash & Margolin, Portland.
Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before DENECKE, C.J., HOLMAN, HOWELL and LENT, JJ., and BOHANNON, J. Pro Tem.
This is an action for damages for personal injuries brought by an employe against his employer on account of an accidental injury the employe sustained in the course and arising out of his employment. The defendant-employer, Fred Meyer, Inc., was a complying employer under the Workmen's Compensation Law, ORS 656.001 et seq., and was providing workmen's compensation coverage to its employes including plaintiff at the time of plaintiff's injury.
As provided by ORS 656.384 the Attorney General appeared on behalf of the defendant-employer and filed an answer invoking the defense that the plaintiff's injury was covered by the Workmen's Compensation Law, ORS 656.018, and that his sole remedy was under that Act.
The defense asserted by the Attorney General was submitted to the trial court as a segregated issue as required by ORS 656.384(2). The evidence produced at trial was in the form of pretrial depositions plus a stipulation that a certain switch hereafter referred to was a 'safety switch.' Defendant moved for summary judgment in its favor which was allowed and from the judgment entered in favor of the defendant the plaintiff appeals.
The plaintiff, Duk Hwan Chung, was employed by Fred Meyer, Inc., in its bakery department. As part of his duties he was required to clean a certain pie-cutting machine. As originally installed, the piecutting machine was equipped with a 'deadman' switch which required the constant pressure of the operator's foot to activate and keep the machine in motion. Because of employe complaints about the 'deadman' switch an employe of the defendant, Fred Meyer, Inc., caused the switch to be removed and replaced by an 'off'-'on' switch which likewise was on the floor and controlled by the operator's foot but which did not require constant foot pressure to keep the pie-cutting machine in operation.
While engaged in cleaning the machine and after removing certain guards, the plaintiff started up the machine and while reaching into the machine he sustained an injury to his arm by reason of a descending blade that came down on his arm before he could shut the machine off with the foot switch.
There is absolutely no evidence in this case that the defendant, Fred Meyer, Inc., intended by replacing the 'deadman' switch to injure the plaintiff or any one else. To the contrary it appears that the switch was replaced to accommodate employe complaints. In this state of the record, the plaintiff has no cause of action against his employer the defendant, Fred Meyer, Inc.
The Workmen's Compensation Law provides the sole and exclusive remedy for injuries sustained by a workman in the course and scope of his employment when the employer is subject to and fully complying with the provisions of the Act, unless the facts give rise to one of the exceptions specified in the Act. Shoemaker v. Johnson, 241 Or. 511, 407 P.2d 257 (1965); Stout v. Derringer, 216 Or. 1, 337 P.2d 357 (1959); Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 147 P.2d 199 (1944); ORS 656.018.
In this case the plaintiff alleges in his complaint that:
'* * *
'On or about June 20, 1973, Fred Meyer, with the deliberate intention of producing an injury to Plaintiff, did commit an act of willful and unprovoked aggression upon the person of the Plaintiff, an employee of Fred Meyer, to wit: Removing a 'fail-safe' device from a pie-cutting machine that Plaintiff was required to work on.
'* * *.'
The exception apparently relied upon by plaintiff in this case is that found in ORS 656.156(2) which provides:
'If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman may take under ORS...
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