German v. Murphy
| Decision Date | 12 February 1997 |
| 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. |
| Court | Oregon Court of Appeals |
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.
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.
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 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 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 ORCP 47 if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. We review the record in the light most favorable to plaintiff, the nonmoving party, to determine whether plaintiff has produced evidentiary materials that include specific facts showing that there are genuine issues for trial. Carl v. Oregon Automobile Ins. Co., 141 Or.App. 515, 520, 918 P.2d 861 (1996). The narrow question before us is whether plaintiff's exhibits, combined with the admissible portions of the Salois and Trainer affidavits, raise any genuine factual issues for trial regarding defendant's responsibility for plaintiff's safety and for guarding or covering the opening through which plaintiff fell.
In his first assignment of error, plaintiff challenges the trial court's granting of defendant's motion to strike portions of the Salois and Trainer affidavits. The court ruled that the bulk of the Salois and Trainer affidavits were "either conclusory or not founded on personal knowledge or both." Whether an affidavit meets the requirements of ORCP 47 D is a question of law. We have reviewed the affidavits and conclude that the trial court erred and that, with the exception of paragraph 6 of the Trainer affidavit, both affidavits are founded on personal knowledge and set forth such facts as would be admissible in evidence. ORCP 47 D. Consequently, they should be considered as part of the summary judgment record.
Plaintiff's second and third assignments of error reduce to the question of whether the trial court erred in ruling that there are no genuine issues of material fact regarding plaintiff's claims against defendant. Viewed in the manner most favorable to plaintiff, the summary judgment record reveals that Perrine was on the site regularly and supervised the work of defendant's employees and other subcontractors. Salois' and Trainer's affidavits state that Perrine supervised the entire project, not just defendant's employees. As part of that supervision, Perrine would walk the entire job site and record the completed work on "Daily Report Sheets" that outlined the work progress of the various subcontractors on the job, as well as defendant's daily work progress. Every daily report, under the heading "Work Progress--DMD [defendant Donald M. Drake]," contains the entry: "review, coordinate and supervise the work." Many of the reports also indicate that defendant included "general safety" and "safety walks" as part of its work. Perrine gave Salois, a Murphy employee, directions and told him what needed to be done with the demolition work to stay on Perrine's schedule. Although Perrine never specifically told plaintiff to do anything, plaintiff's deposition states that he knew that Perrine was "the big boss."
The record on summary judgment also reveals that Perrine held weekly "foremen's meetings," where all of the foremen of the various subcontractors on the job would meet with Perrine to review work schedules and the work being performed and to...
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...repeatedly that, “[u]nlike the ELA, the OSEA does not extend its coverage to indirect employees.” [817 F.Supp.2d 1267] German v. Murphy, 146 Or.App. 349, 932 P.2d 580 (1997) (citing Flores v. Metro Machinery Rigging, Inc., 99 Or.App. 636, 641, 783 P.2d 1024, 1027 (1989), rev. den., 309 Or. ......
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...were sufficient and secure, based on the testimony of several Polygon employees, and that he, like the plaintiff in German v. Murphy, 146 Or.App. 349, 932 P.2d 580 (1997), was entitled to a trial. Plaintiff contends that the facts of this case are similar to those in German, in which we con......
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Yeatts v. Polygon Nw. Co.
...were sufficient and secure, based on the testimony of several Polygon employees, and that he, like the plaintiff in German v. Murphy, 146 Or.App. 349, 932 P.2d 580 (1997), was entitled to a trial. Plaintiff contends that the facts of this case are similar to those in German, in which we con......
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...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 agains......