Flores v. Metro Machinery Rigging, Inc.

• Decision Date: 02 February 1990
• Citation: 99 Or.App. 636,783 P.2d 1024
• Court: Oregon Court of Appeals
• Parties: Armando FLORES and Linda Flores, Appellants, v. METRO MACHINERY RIGGING, INC., an Oregon corporation, Respondent, and High Reach, Inc., an Oregon corporation, Defendant. A8709-05545; CA A49384.

Page 1024

783 P.2d 1024

99 Or.App. 636

Armando FLORES and Linda Flores, Appellants, v. METRO MACHINERY RIGGING, INC., an Oregon corporation, Respondent and High Reach, Inc., an Oregon corporation, Defendant.

A8709-05545; CA A49384.

Court of Appeals of Oregon.

Argued and Submitted Oct. 13, 1989.

Decided Dec. 13, 1989.

Reconsideration Denied Feb. 2, 1990.

Graham Walker, Portland, argued the cause for appellants. With him on the briefs, were James O. Goodwin, West Linn, and Mitchell Crew, Portland.

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

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

GRABER, Presiding Judge.

Plaintiffs Armando Flores (Armando) and Linda Flores (Linda), his wife, brought this action against defendant Metro Machinery Rigging, Inc. (Metro) to recover damages for personal injuries and loss of consortium resulting from Armando's slip and fall while working at a construction site. Armando asserted claims for common law negligence and for violations of the Employers' Liability Act (ELA), ORS 654.305 to ORS 654.335, and the Oregon Safe Employment Act (SEA). ORS 654.001 to ORS 654.295. Linda asserted SEA and common law negligence claims. The trial court granted motions to dismiss Armando's ELA and SEA claims, and both of Linda's claims, for failure to state claims for relief. ORCP 21 A(8). Plaintiffs refused to plead again, and the court entered judgment for Metro pursuant to ORCP 67 B. ¹ Both plaintiffs appeal. Metro concedes that the court erred in dismissing Linda's common law negligence claim; we reverse on Armando's ELA claim and affirm on both SEA claims.

Because the court decided the case under ORCP 21 A(8), we take the facts from the amended complaint. Armando worked for Sabre Construction Company (Sabre), the prime contractor, as a supervisor on a project to build an addition to an industrial building. Metro was a subcontractor on the project. Its job was to install an overhead crane in the ceiling of the addition. It brought a personlift and a forklift to the construction site; only its employees used them. The lifts leaked small amounts of hydraulic fluid onto the newly poured and glazed cement floor of the addition. Metro failed to remove or control the leaking fluid, and Armando was injured when he slipped in it. He did not allege that Metro and Sabre were engaged in a common enterprise at the time of his injury.

We first consider the ELA claim. ORS 654.305 requires

"all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees ² or the public"

to use all practicable precautions for the protection of life and limb, without regard to cost. The question is when that duty creates liability to one who is not the direct employee of the defendant. According to Metro, it can be liable under the ELA as an indirect employer only if there was a connection between its work or equipment and the work of Sabre, Armando's direct employer. Because Armando has failed to plead that there was, Metro argues, he has failed to state an ELA claim.

The leading Supreme Court case is Thomas v. Foglio, 225 Or. 540, 358 P.2d 1066 (1961). The court explained the conditions under which one employer may be liable to another's employee under the ELA:

"The treatment of the defendant as the employer of one whom he has not directly employed to do the work out of which the injury arises can be justified on the ground that the plaintiff becomes the defendant's employee in the sense that the plaintiff is performing work on a project of which defendant's operations are an integral part. The plaintiff becomes, in effect, an adopted employee to carry out the work project in which plaintiff's actual employer and his adoptive employer are participating. To draw the defendant into the employer-employee relationship in this sense, it must be shown that the defendant was one 'having charge of, or responsible for the work.' " 225 Or at 545. (First emphasis in original; second emphasis supplied.)

Numerous cases since Thomas have discussed the type and degree of control that a defendant must have to be liable under the ELA for an injury to another's employee. The Supreme Court has summarized its decisions:

"[T]he 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 v. Georgia-Pacific Corp., 294 Or. 750, 754, 662 P.2d 718 (1983).

Armando did not plead that Metro and his employer were simultaneously engaged in carrying out work on a common enterprise. The question, then, is whether he pled that Metro had retained a right to control, or actually exercised control, as to the manner or method of performing the activity that led to his injuries. He did, because he alleged that, on the date of his injury, Metro was "in exclusive control and operating" the lifts.

As part of his pleading, however, Armando also had to show that there was some connection between his employer's work and the work that Metro's employees were doing. Thomas v. Foglio, supra, 225 Or. at 545-547, 358 P.2d 1066. It is not enough, for instance, that a defendant simply delivered materials to a job site. See Steiner v. Beaver State Scaffolding Equipment Co., 97 Or.App. 453, 777 P.2d 965 (1989); Dingell v. Downing-Gilbert, Inc., 81 Or.App. 545, 726 P.2d 937 (1986), rev. den. 302 Or. 614, 733 P.2d 449 (1987). Similarly, a railroad in the process of delivering freight cars to a shipper's yard does not thereby become an ELA employer as to the shipper's employees. Parks v. Edward Hines Lbr. Co. et al., 231 Or. 334, 372 P.2d 978 (1962). On the other hand, a defendant who has control of the work or instrumentality that injures a plaintiff is subject to ELA liability. Miller v. Georgia-Pacific Corp., supra; Wilson v. P.G.E. Company, 252 Or. 385, 395, 448 P.2d 562 (1968). ³

This case falls between the categories that those cases reflect. Metro did not simply deliver the lifts to the site but rather, was actively using them in the process of carrying out its subcontract at the time of the injury. Although Metro had no direct control over Armando or his work activities, it was working on the same project, in the same location and at the same time as his employer. While doing so, Metro operated and maintained potentially dangerous...