German v. Murphy

• Court: Court of Appeals of Oregon
• Writing for the Court: LEESON
• Citation: 146 Or.App. 349,932 P.2d 580
• Parties: Chester GERMAN, Appellant, v. Keith MURPHY, dba K.J. Murphy Construction, dba K.J. Murphy Enterprises, Hayden Corporation, dba Hillman Properties Northwest, and Joe Murphy, dba K.J. Murphy Construction, Defendants, and Donald M. Drake Co., an Oregon corporation, Respondent. 9503-01375; CA A92761.
• Decision Date: 12 February 1997

Page 580

932 P.2d 580 146 Or.App. 349 Chester GERMAN, Appellant,
v.
Keith MURPHY, dba K.J. Murphy Construction, dba K.J. Murphy
Enterprises, Hayden Corporation, dba Hillman
Properties Northwest, and Joe Murphy,
dba K.J. Murphy Construction, Defendants,
and
Donald M. Drake Co., an Oregon corporation, Respondent. 9503-01375; CA A92761. Court of Appeals of Oregon. Argued and Submitted Dec. 4, 1996.
Decided Feb. 12, 1997.

Page 581

Nancy F.A. Chapman, Beaverton, argued the cause and filed the briefs for appellant.

Jennifer K. Oetter, Portland, argued the cause for respondent Donald M. Drake Co., Columbus, OH. With her on the brief were Carl R. Rodrigues and Lehner, Mitchell, Rodrigues & Sears, Portland.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

[146 Or.App. 351] LEESON, Judge.

Plaintiff appeals from a summary judgment for defendant on plaintiff's claims against defendant for violation of the Employer's Liability Act (ELA) ( ORS 654.305 et seq ), negligence and negligence per se. We conclude that there are genuine issues as to material facts with respect to plaintiff's ELA and negligence claims, ORCP 47 C, and, accordingly, reverse and remand as to them. Because defendant is entitled to judgment as a matter of law on plaintiff's claim for negligence per se, we affirm the trial court's granting of summary judgment on that claim. ORCP 47 C.

Hayden Corporation (Hayden) owned a three-story building that needed renovation. In November 1993, Hayden contracted with plaintiff's employer, K.J. Murphy Construction (Murphy), to perform demolition work at the site. Hayden contracted with another company to provide asbestos abatement and with defendant to reconstruct and remodel the building. Hayden's contracts with Murphy and defendant contain clauses that make each contractor responsible for the safety of its own employees or subcontractors.

On May 6, 1994, plaintiff was performing demolition work near the building's rooftop penthouse. He fell through a hole in the roof and was injured. He subsequently filed this action against defendant, claiming that defendant violated the ELA and also was negligent by failing to: (a) construct a railing or other barrier around the opening through which plaintiff fell and (b) cover the opening through which plaintiff fell. ¹ He also alleged that defendant was negligent per se in violating the Oregon Occupational Safety and Health Code (OOSHC), sections 1926.500(b)(1) and (7), by failing to guard the opening with a railing or cover.

[146 Or.App. 352] Defendant moved for summary judgment on the grounds that the ELA did not apply to defendant, that there was no evidence that defendant owed a duty to plaintiff or of defendant's negligence, and that defendant could not be held liable under OOSHC for plaintiff's injuries. Plaintiff responded, submitting several exhibits and affidavits by two of plaintiff's coworkers, Allen Salois and Kenny Trainer. The exhibits consisted of daily reports written by Richard Perrine, defendant's superintendent for the project; portions of Perrine's deposition; memoranda written by Perrine that discussed a site safety meeting and a list of the workers who attended the meeting; an offer, dated March 28, 1994, from defendant to Hayden to provide temporary protection at roof and floor openings; and a report of plaintiff's accident written by Perrine. Defendant moved to strike certain portions of the Salois and Trainer affidavits and to strike all of the exhibits. The trial court granted defendant's motion. Based on a summary judgment record that, with respect to plaintiff, contained only small portions of the Salois and Trainer affidavits, the trial court ruled that plaintiff had provided no evidence to raise any genuine issue of material fact and granted summary

Page 582

judgment to defendant. Plaintiff moved for reconsideration of the rulings on the admissibility of the exhibits. The trial court granted reconsideration and ruled that all of plaintiff's exhibits were admissible except for the stricken portions of the Salois and Trainer affidavits. The trial court then reconsidered the question of whether plaintiff had raised a genuine issue of material fact on any claim sufficient to defeat defendant's motion for summary judgment and concluded that plaintiff had not done so.

Plaintiff challenges the trial court's granting of defendant's motion for summary judgment, arguing that the court "did not exercise its duty of viewing the record 'in a manner most favorable to' plaintiff, as required by ORCP 47." He also contends that the record contains evidence from which an objectively reasonable juror could find that defendant was liable to plaintiff under the ELA and evidence that defendant had undertaken supervision and control of safety at the job site, creating a duty to exercise reasonable care towards plaintiff.

Defendant responds that there is no evidence in the record to support any of plaintiff's claims for relief. According [146 Or.App. 353] to defendant, each contractor was responsible for a distinct phase of the work, defendant's employees did not supervise plaintiff, defendant's and Murphy's employees were not commingled, defendant did not have charge or control of the instrumentality that caused plaintiff's injury, plaintiff was not an adopted or indirect employee of defendant and defendant owed no duty to plaintiff.

Summary judgment is appropriate under...