Kauffman v. L.D. Mattson, Inc.

• Decision Date: 02 February 1983
• Docket Number: No. 122988,122988
• Citation: 61 Or.App. 462,657 P.2d 720
• Parties: Vernon KAUFFMAN, Appellant, v. L.D. MATTSON, INC., an Oregon corporation, Respondent. ; CA A23485.
• Court: Oregon Court of Appeals

Page 720

657 P.2d 720

61 Or.App. 462

Vernon KAUFFMAN, Appellant, v. L.D. MATTSON, INC., an Oregon corporation, Respondent.

No. 122988; CA A23485.

Court of Appeals of Oregon.

Argued and Submitted Sept. 24, 1982.

Decided Feb. 2, 1983.

Leo R. Probst, Portland, argued the cause for appellant. With him on the briefs was Carney, Probst, Cornelius & Buckley, Portland.

J.P. Graff, Portland, argued the cause for respondent. With him on the brief were Ridgway K. Foley, Jr., and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Before RICHARDSON, P.J., JOSEPH, C.J., and VAN HOOMISSEN, J.

RICHARDSON, Presiding Judge.

Plaintiff brought this action to recover damages for injuries he sustained while working on the construction of a parking structure. He alleged that defendant, the general contractor for the construction project, is liable under the Employers' Liability Act (ELA) (ORS 654.305 et seq.) and for negligence. The trial court granted summary judgment for defendant, and plaintiff appeals. We reverse.

Plaintiff's employer was engaged as a subcontractor to furnish and install reinforcing steel for the structure. Plaintiff was injured when he fell from a section of the structure approximately 14 feet above the ground, where he and another employe of the subcontractor were placing a reinforcing rod. Although defendant had installed safety rails on certain other elevated areas of the structure, there was no rail at the location from which plaintiff fell. The parties agree that defendant was responsible for the placement of safety rails. They also agree that plaintiff was the foreman for the subcontractor for purposes of installing the reinforcing rod. The principal issue is whether, in light of those facts, plaintiff is barred by the "vice-principal rule" from recovering under the ELA.

That rule, as explained in Skeeters v. Skeeters, 237 Or. 204, 223-24, 389 P.2d 313, 391 P.2d 386 (1964), is that a foreman or other vice-principal "has the same duty as a principal in providing a safe place to work and if his injuries result from his inattention to that duty he cannot hold his employer liable." See ORS 654.305; ORS 654.315. In addition to their application in the employer-employe context, the ELA and the vice-principal defense are also applicable in some situations where the defendant is an "indirect employer" of the plaintiff. Wilson v. P.G.E. Company, 252 Or. 385, 448 P.2d 562 (1968); Miller v. Georgia-Pacific Corp., 55 Or.App. 358, 364, 637 P.2d 1354 (1981), rev. allowed, 292 Or. 825, 648 P.2d 849 (1982). ¹

Plaintiff argues that, because neither he nor his immediate employer was responsible for the installation of safety rails, the vice-principal rule does not bar his recovery against defendant. Defendant concedes that it was responsible for placing the rails and that plaintiff and his employer had no duty in connection with their installation. However, defendant argues that plaintiff, as foreman on the reinforcing rod installation job, was responsible under the ELA for insuring that the job was not performed under unsafe conditions, even though he had no specific duty to make the conditions safe. Defendant concludes that plaintiff, as defendant's indirect employe and as a person in a supervisory position, breached a duty "not to work in an area where safety railings were absent" and is therefore precluded by the vice-principal rule from recovering against defendant under the ELA. The trial court agreed with defendant.

The only Oregon case we find that appears to deal with a similar issue is Blaine v. Ross Lbr. Co., Inc., 224 Or. 227, 355 P.2d 461 (1960). The plaintiff in Blaine was a log-truck driver whose immediate employer was the log shipper rather than the defendant saw mill operator. He was injured by a malfunctioning winch while unloading a shipment of logs at the defendant's mill. Although an employe of the defendant was assigned to operate the equipment during the unloading process, it was the custom at the mill that the drivers themselves would operate the equipment, as well as unload the logs when the defendant's employe was performing other duties. After concluding that the plaintiff was an employe of the log shipper and therefore could have an ELA cause of action against the defendant for injuries caused by the equipment, the court rejected the defendant's argument that the plaintiff was barred from recovery by the vice-principal rule:

"Finally, the defendant suggests that the plaintiff was a vice-principal, arguing that plaintiff's duty to release the binder chains holding his load of logs implied a duty to make sure that all safety measures incident to this task were carried out. We have held that a vice-principal can not maintain an action for injuries incurred by his own failure to carry out duties delegated to him by his employer. Howard v. Foster & Kleiser, 217 Or 516, 332 P2d 621, 342 P2d 780 (1958); Galer v. Weyerhaeuser Timber Co., 218 Or 152, 344 P2d 544 (1959). However, the evidence here is conclusive that plaintiff did not have a duty to inspect or repair the winch machinery." 224 Or at 240, 355 P.2d 461.

Although the discussion of the vice-principal rule in Blaine is cursory, the case seems to stand for the proposition that the rule does not apply to injuries suffered by an indirect employe from an instrumentality controlled by his indirect employer that the employe has no duty delegated by his indirect or immediate employer to install, maintain or inspect.

Defendant argues that, although plaintiff had no such delegated duty with respect to the safety rails, he had a general duty under ORS 654.305 and 654.315 ² to insure that he and his crew did not work under unsafe conditions and that his breach of that duty absolves defendant as his indirect employer from ELA liability to him. That argument appears to have been rejected in Blaine, and there is a clear problem with it: it would make plaintiff defendant's vice-principal for purposes of discovering that defendant had failed to perform a duty that it owed plaintiff and others, when plaintiff was not defendant's vice-principal for purposes of performing that duty. We do not think the vice-principal rule was intended to...