Kilminster v. Day Management Corp.

• Decision Date: 22 February 1995
• Citation: 133 Or.App. 159,890 P.2d 1004
• Parties: Virginia KILMINSTER, Curtis Irwin, Sr., and Curtis Irwin, Sr., as Personal Representative of the Estate of Curtis Irwin, Jr. (the decedent), Appellants, v. DAY MANAGEMENT CORPORATION, an Oregon corporation, dba Clackamas Communications, and Gordon Day, Respondents, and KSGO/KGON, Inc., a Washington corporation; Motorola, Inc., a Delaware corporation; and Skilling Ward Magnusson Barkshire, Inc., a Washington corporation, Defendants. 9301-00574; CA A82220.
• Court: Oregon Court of Appeals

Page 1004

890 P.2d 1004

133 Or.App. 159

Virginia KILMINSTER, Curtis Irwin, Sr., and Curtis Irwin, Sr., as Personal Representative of the Estate of Curtis Irwin, Jr. (the decedent), Appellants, v. DAY MANAGEMENT CORPORATION, an Oregon corporation, dba

Clackamas Communications, and Gordon Day, Respondents,

and

KSGO/KGON, Inc., a Washington corporation; Motorola, Inc.,

a Delaware corporation; and Skilling Ward

Magnusson Barkshire, Inc., a Washington

corporation, Defendants.

9301-00574; CA A82220.

Court of Appeals of Oregon.

Argued and Submitted Sept. 9, 1994.

Decided Feb. 22, 1995.

Tom Steenson, Portland, argued the cause for appellants. With him on the brief were Michael Schumann, Terrance M. McCauley and Steenson & Schumann.

Howard Rubin, Portland, argued the cause for respondents. With him on the brief was Amburgey, Segel & Rubin, P.C.

Before RIGGS, P.J., ^* and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Plaintiffs are the parents and personal representative of decedent, who was killed when he fell more than 400 feet while working inside the KGON tower. Defendant Day Management Corporation (DMC) was decedent's employer, and defendant Day is the president of DMC. ¹ Plaintiffs brought this action alleging, inter alia, a claim of negligence against DMC, a claim under ORS 656.156(2) that DMC deliberately intended to produce decedent's injury or death, and a claim against DMC and Day for violating Oregon's Racketeering Influenced and Corrupt Organization Act (ORICO). ORS 166.715 et seq.

Defendants filed motions to dismiss for failure to state claims. ORCP 21 A(8). The trial court granted the motions and entered judgment under ORCP 67 B. On review of claims dismissed under ORCP 21 A(8), we accept as true the allegations pleaded in the complaint. Nicholson v. Blachly, 305 Or. 578, 580, 753 P.2d 955 (1988). We affirm.

Plaintiffs assign error to the dismissal of their claim for negligence. The trial court held that ORS 656.018 is the exclusive remedy for decedent's death. Plaintiffs argue that ORS 656.018 takes away the parents' claim under ORS 30.020(1) for the wrongful death of their son and replaces it with a burial payment of $3,000. They contend that that result deprives them of their constitutional right to an adequate remedy under Article I, section 10.

The dissent concludes that, under Neher v. Chartier, 319 Or. 417, 879 P.2d 156 (1994), plaintiffs are correct. In Neher, the decedent was killed when she was struck by a Tri-Met bus while she was engaged in an activity covered by the Workers' Compensation Law. Her estate sought damages against Tri-Met and the bus driver. Those defendants claimed immunity under ORS 30.265(3)(a) of the Oregon Tort Claims Act, which granted immunity to the public body and its employees if the person injured or killed was covered by the Workers' Compensation Law. The Supreme Court held that ORS 30.265(3)(a) violated Article I, section 10, because it left the plaintiff without a remedy against the public body and its employees to recover for the benefit of the decedent's surviving parents under ORS 30.010.

We note at the outset that the Supreme Court, in Neher, stated that

"ORS 30.020 recognizes the existence of a right of recovery for surviving parents for damages to compensate them 'for pecuniary loss of the society, companionship and services of the decedent.' ORS 30.020(2)(d)." 319 Or. at 428, 879 P.2d 156.

The Supreme Court made that statement without mention or discussion of the derivative nature of the parent's right to bring a claim under the wrongful death statutes. Under ORS 30.010(2), a parent may recover damages only as provided in ORS 30.020. ORS 30.020(1) provides, in part:

"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the * * * surviving parents * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission." (Emphasis supplied.)

As the dissent correctly notes, the argument can be made that, in Neher, the decedent would have been barred from bringing an action. However, from the Supreme Court's omission of any effect of the derivative right, we conclude that it is not germane to the discussion of the rights and remedies under Article I, section 10.

However irrelevant the language of ORS 30.020 might be, we cannot agree with the dissent that the statutory source of the immunity and the defendant's status as the employer are also irrelevant. The dissent concludes that the analysis of rights and remedies in Neher controls the analysis here. However, in Neher, the court considered the wrongful death statute in a claim brought under the Tort Claims Act. Here, plaintiffs' claim implicates the workers' compensation system directly. The dissent's conclusion would seriously erode--if not destroy--the exclusivity of remedy on which the workers' compensation system depends, see Shoemaker v. Johnson, 241 Or. 511, 518, 407 P.2d 257 (1965), but see Errand v. Cascade Steel Rolling Mills, Inc., 320 Or. 509, 888 P.2d 544 (February 2, 1995), and is not commanded by the opinion in Neher.

Under the Tort Claims Act, plaintiffs have the right to bring an action for the torts of a public body and its employees. ORS 30.265(1). For purposes of the Act, a tort is defined as "the breach of a legal duty that is imposed by law * * * for which the law provides a civil right of action for damages * * *." ORS 30.260(8). In Neher, thus, the consequence of ORS 30.265(3)(a) was to bar the plaintiff's cognizable legal claim.

Here, in contrast, there is no comparable cognizable right of action. With the exception of intentional injury, there is no such thing as tort liability of an employer for a covered worker's injury or death from a comparable injury. The employer's duty to maintain coverage is its exclusive liability to its workers. Roberts v. Gray's Crane & Rigging, 73 Or.App. 29, 32, 697 P.2d 985, rev. den. 299 Or. 443, 702 P.2d 1112 (1985). ORS 656.018(1)(a) provides, in part:

"The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries * * *." (Emphasis supplied.)

In Leech v. Georgia-Pacific Corp., 259 Or. 161, 485 P.2d 1195 (1971), the plaintiff was the mentally incapacitated adult child of a worker who was killed in an industrial accident. At that time, the workers' compensation statutes did not provide for benefits on behalf of a child in the plaintiff's situation and she sought to bring a negligence action for her father's death. The Supreme Court rejected the plaintiff's contention that the statutes violated Article I, section 10, of the Oregon Constitution and equal protection. It held that the language of ORS 656.018, which then, as now, included immunity for the employer from actions from "anyone otherwise entitled to recover damages from the employer on account of such injuries," indicated

"that the legislature intended the remedy provided by compensation to be exclusive and that complying employers are not to be subject to negligence actions by persons omitted from the compensation benefit schedules." 259 Or. at 166, 485 P.2d 1195.

In Neher, the Supreme Court's holding was that ORS 30.265(3)(a) violated Article I, section 10, by abolishing the parent's remedy, pursuant to the wrongful death statutes, under the circumstances of that case: The statute gave immunity from liability not only to the municipality, but also to the municipality's negligent employees. 319 Or. at 428, 879 P.2d 156. That holding does not abrogate the exclusivity of the workers' compensation system. Plaintiffs here had no cause of action for negligence against defendants, and the trial court did not err in dismissing plaintiffs' claim.

Plaintiffs also assign error to the trial court's dismissal of their claim against DMC under ORS 656.156(2), which provides:

"If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if [the workers' compensation] statutes had not been passed, for damages over the amount payable under those statutes."

We do not decide whether the estate here may bring a claim, even though ORS 656.156(2) does not provide a cause of action for the worker's estate. Plaintiffs must allege facts showing that they are entitled to bring the statutory cause of action, see Riddle v. Eugene Lodge No. 357, 95 Or.App. 206, 215, 768 P.2d 917 (1989), and they have not done so here. Plaintiffs have not pleaded that decedent's "employer had a deliberate intention to injure him or someone else and that he was in fact injured as a result of that deliberate intention." Duk Hwan Chung v. Fred Meyer, Inc., 276 Or. 809, 813, 556 P.2d 683 (1976).

" '[D]eliberate intention' implies that the employer must have determined to injure the employee. It is not sufficient to show that there was mere carelessness, recklessness, or negligence, however gross it may be. Reckless disregard of the consequences * * * does not charge an intent to injure plaintiff." Heikkila v. Ewen Transfer Co., 135 Or. 631, 635, 297 P. 373 (1931).

DMC argues that the essence of plaintiff's allegations ² is that DMC knowingly maintained an unsafe workplace and knew or should have known that eventually someone would be injured or killed thereby. It contends that such allegations do not rise to the level of an allegation that it deliberately sought to produce an injury or death.

Plaintiffs rely on Lusk v. Monaco Motor Homes,...