Hamlin v. Hampton Lumber Mills, Inc.

• Jurisdiction: Oregon
• Parties: Ken HAMLIN, Plaintiff-Respondent, v. HAMPTON LUMBER MILLS, INC., an Oregon corporation, dba Willamina Lumber Company, Defendant-Appellant.
• Citation: 222 Or. App. 230,193 P.3d 46
• Docket Number: 040302235.,A130213.
• Court: Oregon Court of Appeals
• Decision Date: 10 September 2008

193 P.3d 46

222 Or. App. 230

Ken HAMLIN, Plaintiff-Respondent, v. HAMPTON LUMBER MILLS, INC., an Oregon corporation, dba Willamina Lumber Company, Defendant-Appellant.

040302235.

A130213.

Court of Appeals of Oregon.

Argued and Submitted August 17, 2007.

Decided September 10, 2008.

Brenda K. Baumgart, Portland, argued the cause for appellant. On the opening brief were Edwin A. Harnden, Bradley F. Tellam, Portland, and Barran Liebman LLP. With her on the reply brief were Edwin A. Harnden and Barran Liebman LLP.

Craig A. Crispin, Portland, argued the cause for respondent. With him on the brief was Crispin Employment Lawyers.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

ARMSTRONG, J.

Defendant appeals a judgment awarding plaintiff $175,000 in punitive damages for defendant's failure to comply with ORS 659A.043(1) when it did not reinstate plaintiff as an employee after he had recovered from a work-related injury.¹ Defendant makes two assignments of error: (1) the trial court erred in denying its motion for a directed verdict on plaintiff's claim for punitive damages, and (2) the court erred in refusing to reduce the punitive damage award as constitutionally excessive. As described below, we affirm with respect to defendant's first assignment of error. However, we conclude that the punitive damages are constitutionally excessive, and that the trial court erred by not reducing them. Hence, we vacate and remand with instructions to grant defendant's motion for a new trial, limited to punitive damages, unless plaintiff agrees to remittitur of punitive damages to an amount four times the compensatory damage award.

Because the jury found in plaintiff's favor, we state the facts in the light most favorable to him. Boothby v. D.R. Johnson Lumber Co., 341 Or. 35, 38, 137 P.3d 699 (2006). In July 2002, defendant hired plaintiff as a temporary employee at its lumber mill through Express Personnel Services (Express). Upon his first arrival at the mill, plaintiff met with Housden, who was supervisor of the mill's finger-joint department. Housden began a safety orientation with plaintiff, and turned plaintiff over to Fahy, who was the "lead" for plaintiff's shift. Housden told plaintiff to follow Fahy's directions, and also to learn his job by "watch[ing] what was going on around [him, and] observ[ing] what other people were doing." Fahy completed the orientation, which, in all, lasted approximately 45 minutes. During that orientation and his subsequent shifts, plaintiff was not trained on how to respond to a "lock out" situation, such as when an employee needs to stop machinery in order to clear a board jam or perform repairs safely. In those situations, the employee is expected to use locks that are issued to employees to prevent others from restarting machinery while it is being serviced. Housden testified that mill employees typically were not issued such locks for their first two weeks on the job; however, he conceded that plaintiff was "not properly trained on how to safely clear a jam" and was not given sufficient information about how to respond to a lock out situation.

On plaintiff's third night on the job, Fahy asked plaintiff to work on a catwalk near where a conveyor belt moved boards into bins, and he explained to plaintiff that he needed to "move the boards away from the belts [so that they] didn't pile up in one spot." According to plaintiff, Fahy told him to step over the handrail and "hold onto the bar" near plaintiff's head and either kick the boards with his feet or move the boards with his hands. Plaintiff testified that Fahy stepped over the handrail and demonstrated how to kick and handle the boards to prevent a pileup. Plaintiff further said that, over the course of working there, he had seen others step over the handrail to clear boards in a similar way.

Some time after Fahy left plaintiff, plaintiff smelled smoke and noticed that a board had become wedged between the moving belt and the bin in which it was supposed to fall. Plaintiff yelled to an employee working at a nearby station for instructions on what to do. Plaintiff thought he heard Fahy behind him, telling him to "just grab the board." Plaintiff did that, and his hand got caught in the belt, seriously injuring his thumb.

Housden, who had not been working during that shift, received a call at home about the accident and drove to the hospital to speak with plaintiff when he was receiving emergency treatment; Housden also drove plaintiff's truck to his home the following day. On both occasions, Housden heard plaintiff and plaintiff's wife express concern over plaintiff losing the job at the mill, and he told plaintiff that his job "was safe," "not to worry about his job [and that] everything was fine." Housden did not indicate to plaintiff that the accident was plaintiff's fault or that plaintiff had done anything wrong in trying to clear the jam.

Plaintiff received further treatment on his thumb, including partial amputation. He filed a workers' compensation claim. He also filed a safety complaint with Oregon OSHA, which investigated the incident in September and concluded that defendant did not commit a safety violation relative to plaintiff's injury. Plaintiff's doctor released him by late August to do light-duty work. Defendant did not have light-duty work for which it required Express's services, and plaintiff performed light work through Express for other employers. Although defendant became aware through communications with Express regarding plaintiff's workers' compensation claim that plaintiff had been released for light-duty work, defendant did not indicate that it did not intend to reinstate plaintiff if he was released for regular work.

In the meantime, Housden had filled out an injury report the day after plaintiff's accident. Nothing in that report indicated that Housden thought that plaintiff was a safety risk. Soon after the accident, Hart, the mill manager, had told Housden to talk to him before allowing plaintiff back into the mill. However, it does not appear that defendant initiated any follow-up investigation of the incident, any interviews with staff or supervisors on the floor at the time, any interviews with plaintiff in relation to the accident, or any disciplinary action against anyone involved. Some time after the accident but before plaintiff requested reinstatement, defendant had discovered that it was another temporary employee, not Fahy, who had directed plaintiff to grab the jammed board. At that point, that person no longer worked for defendant, having been terminated previously for an unrelated reason.

Plaintiff was released to resume regular work in November 2002, at which point his workers' compensation benefits ended. He called and wrote to Express to request that he be reinstated in his position with defendant. Express contacted the Oregon Bureau of Labor and Industries (BOLI) to inquire anonymously about whether a temporary employee in plaintiff's position had reinstatement rights. Express learned that temporary employees, such as plaintiff, generally had reinstatement rights under ORS 659A.043. Express communicated that information to Blackwell, the human resources manager for the mill.

After receiving that information from Express, Blackwell, Hart, and two other managers exchanged several e-mails over a few hours discussing the situation. Blackwell explained to Hart and the other managers what Express had communicated to him regarding plaintiff's reinstatement rights. Blackwell further indicated that, when Express had asked BOLI whether an employee could be denied reinstatement for a safety violation, the BOLI representative

"asked questions such as: 1) Have other employees been terminated for the same or similar safety violations on a first offense? 2) Was the employee properly trained on how to safely clear a jam-up in this area? * * * Are there clearly defined methods/guidelines for how an employee should safely complete this task? If so, was the employee made aware of them?"

Hart replied that he thought that they should talk in person about the situation, but indicated that, at that point, he was opposed to plaintiff's return to the mill. He stated that he "believe[d]" that the mill had terminated other employees for similar first-time safety violations but could not "recall an example" at that time.² He further opined that plaintiff had been "willfully * * * insubordinate to instruction given to him by * * * Housden" during the orientation, that the incident led to an OSHA investigation that revealed no wrongdoing on defendant's part in relation to the accident, that plaintiff had been "properly trained in that he was clearly instructed that he could not perform any tasks related to lockout," and that, based on the accident, plaintiff "lacked the common sense and judgment to work in a manufacturing environment" and was a risk to himself and others at the mill. After that series of e-mails, defendant told Express that it would not reinstate plaintiff because he was a "safety risk." Express then passed that information on to plaintiff.

Plaintiff sued, alleging, among other things, that defendant had failed to reinstate him in accord with ORS 659A.040 to 659A.043. At trial, defendant moved for a directed verdict at the close of plaintiff's case-in-chief and renewed that motion at the close of all evidence, arguing that plaintiff failed to present any evidence warranting a punitive damage award as to that claim. The trial court denied both the original and the renewed motions. Subsequently, the jury determined that defendant violated ORS 659A.043 by failing to reinstate plaintiff. It awarded plaintiff $10,000 in economic damages, but found that plaintiff had failed to mitigate those damages by $4,000. It further determined that plaintiff proved by clear and convincing evidence that punitive damages should be assessed against defendant, and set that...