George v. Myers

• Court: Court of Appeals of Oregon
• Writing for the Court: HASELTON, J.
• Citation: 10 P.3d 265,169 Or. App. 472
• Decision Date: 30 August 2000
• Parties: Kelly GEORGE, Appellant, v. Dennis MYERS, dba Dennis Myers, Designer Builder, Respondent.

10 P.3d 265
169 Or. App. 472

Kelly GEORGE, Appellant,
v.
Dennis MYERS, dba Dennis Myers, Designer Builder, Respondent

(9712-10258; CA A104584)

Court of Appeals of Oregon.

Argued and Submitted December 16, 1999.

Decided August 30, 2000.

10 P.3d 267

J. Randolph Pickett, Portland, argued the cause and filed the briefs for appellant

Bruce R. Gilbert argued the cause for respondent. With him on the brief was Smith, Freed, Heald & Chock, P.C.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

HASELTON, J.

Plaintiff appeals, assigning error to the allowance of summary judgment dismissing his claims for violation of the Employer Liability Act (ELA), ORS 654.305 et seq., and for negligence per se and common law negligence. We conclude that: (1) Defendant is not subject to "indirect employer" liability under the ELA. (2) Defendant, either as a general contractor or a property owner, cannot be liable in negligence per se for alleged violation of certain workplace safety rules promulgated under the Oregon Safe Employment Act (OSEA). ORS 654.001 et seq. And (3) the "specialized contractor doctrine," Yowell v. General Tire & Rubber, 260 Or. 319, 325-26, 490 P.2d 145 (1971), precludes plaintiff's common-law negligence claim. Accordingly, we affirm.

Viewed most favorably to plaintiff, as the nonmovant, the record on summary judgment discloses the following material facts: Defendant, Dennis Myers, dba Dennis Myers, Designer Builder, owned property in Tigard on which he, as general contractor, was building a home for sale to the public. Defendant, who had no employees, hired subcontractors to work on the house. Among those subcontractors was plaintiff's employer, Twin Oaks Construction, a framing subcontractor. Defendant hired Twin Oaks because of its expertise in framing.

Defendant supplied Twin Oaks' owner, Darrell Jackson, with design plans for the house and, in the winter of 1997, Twin Oaks began framing. Defendant checked in at the site almost daily to confer with Jackson, to answer questions, and to insure that Twin Oaks was following his design plans. Although defendant gave Jackson direction with respect to "architectural or design" matters, he did not instruct Jackson, or any Twin Oaks employee, about how the house was to be framed or any other detail of performance.

On February 13, 1997, plaintiff was working with Jackson and another Twin Oaks employee, Gary Grossnickel, framing the third floor of the house. Defendant was not present at the site. After framing three of the exterior walls and several of the interior walls on the third floor, the Twin Oaks personnel were unable to begin framing the fourth exterior wall because a banded bundle of 200 2" × 4" boards, which had been delivered to the site at Twin Oaks' request, was in the way.

Jackson asked plaintiff to move the boards. Instead of moving the boards four or five at a time, as he had done in the past, plaintiff decided to move the entire bundle at once, using a method that he had learned while working at a lumber mill. Plaintiff placed a six-inch diameter pipe under the bundle and, with Jackson's and Grossnickel's help, attempted to roll the bundle atop the pipe. The three men successfully moved the bundle approximately five feet before the pipe needed to be repositioned to allow the bundle to be moved farther. Plaintiff pried up one corner of the bundle with a five-foot construction crowbar so that Jackson could retrieve the pipe. As plaintiff pried up the bundle, the crowbar slipped, and he fell backwards off the third floor, landing on some

10 P.3d 268

stacked lumber and compacted gravel 20 feet below. Plaintiff was seriously injured

At the time of plaintiff's fall, there was no fall protection of any kind at the construction site, including personal protection devices, guardrails, or netting. Defendant was not involved in the original placement of the bundled 2" × 4"s and had nothing to do with Jackson's decision to move the boards or the method by which plaintiff attempted to move them.

Plaintiff filed this action against defendant alleging violation of the ELA, as well as common law negligence and negligence per se. With respect to his negligence per se claim, plaintiff alleged that defendant had violated the OSEA, and specifically certain regulations pertaining to workplace accident prevention, 29 CFR section 1926.20¹ (adopted by reference, OAR 437-003-0001(3)(a)), residential construction fall protection devices, 29 CFR section 1926.501(b)(1)² (adopted by reference, OAR 437-003-0001(13)(b)), and workplace mandatory safety training programs, 29 CFR section 1926.503³ (adopted by reference, OAR 437-003-0001(13)(d)).⁴

Defendant answered, denying those allegations and asserting as an affirmative defense that plaintiff's fall was caused by his own negligence in moving the 2" × 4"s and in failing to use safety precautions. Thereafter, defendant moved for summary judgment with respect to each of plaintiff's claims. With respect to plaintiff's negligence per se claim based on the OSEA, defendant asserted that, as a matter of law, the regulations that plaintiff invoked did not apply to defendant because those regulations applied only to employers, and not to owners or general contractors. See German v. Murphy, 146 Or.App. 349, 932 P.2d 580 (1997) (concluding that OSEA's coverage does not extend to indirect employees). Defendant also sought summary judgment against plaintiff's ELA claim because defendant did not exercise sufficient control over plaintiff for ELA "indirect employer" liability under any of the three "control" tests articulated in Miller v. Georgia-Pacific Corp., 294 Or. 750, 662 P.2d 718 (1983). Finally, with respect to plaintiff's common-law negligence claim, defendant asserted that, because it had hired Twin Oaks for its "expertise" in framing, and because the cause of plaintiff's injury—i.e., falling from an upper story—was a hazard associated with the type of work plaintiff was hired to perform, defendant, as owner and possessor of the property, did not owe a duty to protect plaintiff from that hazard. See Yowell 260 Or. at 325-26, 490 P.2d 145.

The trial court granted defendant's motion and entered judgment dismissing the complaint in its entirety. This appeal followed.

Plaintiff challenges the trial court's dismissal of each of his claims, raising three assignments of error. For clarity of analysis, we first briefly address plaintiff's second assignment of error, which challenges the dismissal of his ELA claim, and then consider at greater length plaintiff's first and third assignments, pertaining to the dismissal of his negligence per se and common-law negligence claims.

"Indirect employer" liability under the ELA can be premised on any of three disjunctive tests: (1) the "common enterprise" test; (2) the "retained control" test; or (3) the "actual control" test. Miller, 294 Or. at 754, 662 P.2d 718; Brown v. Boise-Cascade Corp., 150 Or.App. 391, 946 P.2d 324

10 P.3d 269

(1997), rev. den. 327 Or 317, 966 P.2d 220 (1998). Here, there was no evidence supporting the imposition of liability under any of those tests. "Common enterprise"-based liability is inapposite because there is no evidence of a "causal link between the defendant's involvement in joint work and plaintiff's injury." Brown, 150 Or.App. at 397, 946 P.2d 324. In particular, defendant was not involved in moving the bundle and did not provide defective equipment that caused plaintiff's injury. See id. "Retained control"-based liability is similarly inapposite because there is no evidence that defendant retained control over the method and manner of Twin Oaks' performance and, particularly, the "risk-producing activity" of moving the bundle of lumber. See id. at 398, 946 P.2d 324. Rather, all evidence is to the contrary—i.e., defendant's retained control pertained solely to the scope of the work, viz., whether defendant's performance comported with the architectural design. Finally, there is no evidence that defendant exercised actual control over the method and manner of framing, including Twin Oaks' movement of framing materials. Twin Oaks, and Twin Oaks alone, determined how to move the bundled 2" × 4"s

We turn, then, to plaintiff's first assignment of error, challenging the trial court's dismissal of his negligence per se claim. Plaintiff contends that the trial court erred in dismissing that claim because it erroneously concluded that "defendant, as a general contractor, could not be held liable to plaintiff," because the OSEA regulations plaintiff relied upon apply only to "employers" and it is undisputed that defendant is not an employer as defined by OSEA. Plaintiff asserts that that reasoning was wrong because the trial court failed to consider 29 CFR section 1926.16 (adopted by reference by OAR 437-003-0001(2)(g)), which, plaintiff contends, obligates general contractors to comply with all "employer" workplace safety regulations regardless of whether the general contractor retains subcontractors to perform part of the work. Alternatively, plaintiff contends that even if the OSEA regulations do not apply to defendant as general contractor, defendant, as owner, can nevertheless be liable for noncompliance with 29 C.F.R. section 1926.501 (relating to guardrails and other fall protection), because that regulation pertains to workplace structures or safeguards. See, e.g., Brown, 150 Or.App. at 408, 946 P.2d 324 (certain safety regulations may apply to owners where the regulation pertains to "workplace structures or safeguards").

To establish negligence per se, plaintiff must demonstrate that: (1) defendant violated the OSEA safety regulations; (2) plaintiff was injured as a result of that violation; (3) plaintiff is a "member of the class of persons meant to be protected by the statute"; and (4) the injury that plaintiff suffered is "of a type that the [regulation] was meant to prevent." McAlpine v. Multnomah County, 131...