Miller v. Georgia-Pacific Corp.

• Decision Date: 30 December 1981
• Docket Number: No. 40560,GEORGIA-PACIFIC,40560
• Citation: 55 Or.App. 358,637 P.2d 1354
• Parties: Robert L. MILLER, Appellant, v.CORPORATION, a Georgia corporation, and Consolidated Equipment Sales, Inc., a Texas corporation dba Northwest Roads, Inc., Respondents. ; CA 18589.
• Court: Oregon Court of Appeals

Page 1354

637 P.2d 1354

55 Or.App. 358

Robert L. MILLER, Appellant, v. GEORGIA-PACIFIC CORPORATION, a Georgia corporation, and Consolidated Equipment Sales, Inc., a Texas corporation dba Northwest Roads, Inc. Respondents.

No. 40560; CA 18589.

Court of Appeals of Oregon.

Argued and Submitted June 5, 1981.

Decided Dec. 30, 1981.

Robert H. Grant, Medford, argued the cause for appellant. With him on the briefs was Grant, Ferguson & Carter, Medford.

Robert L. Cowling, Medford, argued the cause for respondent Georgia-Pacific Corp. On the brief were Brian L. Pocock and Cowling, Heysell & Pocock, Medford.

Daniel M. Holland, Eugene, argued the cause for respondent Consol. Equipment Sales, Inc. With him on the brief was Jaqua & Wheatley, P.C., Eugene.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

In an action for damages for personal injuries, plaintiff appeals from an adverse judgment after entry of directed verdicts for defendants on plaintiff's counts for negligence and liability under the Employers' Liability Act (ELA). Plaintiff assigns error to the following acts of the trial court: (1) directing a verdict for defendant Georgia-Pacific (G-P) on the negligence and ELA counts; (2) directing a verdict for defendant Consolidated Equipment Sales, Inc. (Consolidated), under similar negligence and ELA counts; (3) striking plaintiff's allegations pertaining to violations of the "Safety Code for Places of Employment" promulgated by the Workers' Compensation Board; (4) striking plaintiff's allegations pertaining to G-P's failure to use a hydraulic lift; (5) striking allegations pertaining to defendants' movement of an unstable and unsafe load; (6) exclusion of plaintiff's expert testimony concerning safety code violations; and (7) exclusion of plaintiff's expert testimony on the negligence issue.

There is essentially no dispute about the following facts. In August, 1976, G-P ordered a crawler tractor equipped with a "chip dozer," a bulldozer designed for moving wood chips, from Consolidated, a Texas corporation, doing business in Oregon as Northwest Roads, Inc. The blade of the chip dozer was manufactured by Medford Steel Division, CSC, Inc. (Medford), which employed plaintiff as its general manager and vice president. Consolidated delivered the unit with blade to G-P in February, 1977, and warranted the blade against breakage for one year. After five days of operation, the blade required repair. G-P contacted Consolidated, which had Medford repair the blade. After five more days of operation, the cutting edge of the blade broke loose. G-P's maintenance supervisor (Kirkland) contacted Consolidated's service manager (Privat), who contacted someone at Medford. It was arranged for plaintiff to see the broken blade at the G-P plant. On March 16, 1977, plaintiff visited the site. Present were plaintiff, one other Medford employee, Kirkland, Privat and another Consolidated employee. The cutting edge, 28-feet long and one-foot wide, weighing 1400 pounds, was buried in a pile of chips; protruding was a six-foot strut. Plaintiff asked to see the blade. Privat directed his Consolidated employee to pull the blade out of the pile of chips with a pick-up truck by attaching a chain to the strut. Plaintiff was standing about 15 to 20 feet away from the strut. When the pick-up jerked forward, a 14-foot section of the blade swung sideways up out of the pile, struck plaintiff in the legs and fractured both his ankles.

Plaintiff contends the granting of a directed verdict for G-P on the negligence ground was error, because a reasonable person could find that G-P breached its duty of care. To establish the duty allegedly breached, plaintiff cites a number of cases ¹ involving the duty of a landowner or possessor to prevent or warn of the negligent acts of third parties, as described in the Restatement (Second) of Torts § 344 (1965). ² The applicability of that section, however, is limited by its terms to possessors of land holding the premises open to the public for business purposes. That was not the case here. ³ The premises were not open to the public, and plaintiff was on the premises to inspect a condition of which he was aware. As explained in the Restatement (Second) of Torts § 343A, comment (e) (1965):

"Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them."

Plaintiff contends that an exception to § 343A applies here when "the possessor should anticipate the harm despite such knowledge or obviousness." This is not, however, a case where either a condition of the land or an activity conducted by G-P caused harm to plaintiff. Rather, the immediate cause of the harm was an activity of Consolidated over which G-P exercised no control. Under the circumstances, even when they are viewed most favorably to plaintiff, G-P could not reasonably have been expected to anticipate the accident which resulted from the manner in which a third party conducted its activity.

As to G-P's liability under the ELA, in Wilson v. PGE Company, 252 Or. 385, 448 P.2d 562 (1969), the Supreme Court stated:

"Though defendant had employees on the project who were engaged with plaintiff in the furtherance of a common enterprise, and defendant could thus be said to have had a measure of control over the enterprise, this control created no risk of danger which resulted in plaintiff's injury. We do not construe the ELA to impose a duty upon each employer, engaged in a common enterprise with another, to make safe the equipment and method of work of the other, even though both have a measure of control over the activity in which they are jointly engaged." 252 Or. at 391, 448 P.2d 562.

Here, although it is argued by plaintiff that G-P had its maintenance supervisor on the scene in furtherance of the broad enterprise of seeing that its broken part eventually be repaired, that measure of control created no risk of injury which resulted in plaintiff's injury. There is no evidence that Kirkland took any part in moving the blade or that he exercised any direction over the method employed. ⁴ In a sense, it was fortuitous that the accident took place on G-P property. The common enterprise was that of Consolidated and Medford in inspecting and repairing the broken part. G-P thus did not have a duty under the ELA to make safe the moving of the broken blade by Consolidated.

Plaintiff cites Metcalf v. Roessel, 255 Or. 186, 465 P.2d 699 (1970), to support the proposition that the occupier of land, without more, has a duty under the ELA to keep the premises safe. In Metcalf, the Supreme Court stated that the control of the premises upon which the plaintiff was injured amounted to sufficient control over the work the plaintiff was performing to bring the defendant within the purview of the ELA. 255 Or. at 190, 465 P.2d 699. The defendant was in charge of loading logs on plaintiff's truck. Placing of binders on the load was part of the loading process. In order to free the loading dock for other trucks, however, the defendant directed the plaintiff to another area to place three out of four binders on the load. En route to this area, a tree fell and struck the cab of the plaintiff's truck. The Supreme Court reasoned that the "plaintiff's duties required him to expose himself to the hazards of an area which defendants had adopted and had designated as a place to perform those functions normally connected with the loading in the landing area." 255 Or. at 191, 465 P.2d 699. Hence, although the opinion refers to control of the premises, the court's decision actually turns on control over the work, an element lacking in this case. The trial court did not err in directing a verdict for G-P.

With regard to Consolidated's liability under the ELA, plaintiff argues that the key requirements necessary to impose liability on indirect employers are present here: the right and duty of control, a common enterprise and an inherent risk or danger. Viewing the evidence most favorably to plaintiff, we conclude that a reasonable person could find that Consolidated controlled the moving of the blade in pursuit of a common enterprise (inspection and ultimate repair of the broken blade) and that movement of a 28-foot cutting edge weighing 1400 pounds was especially dangerous. Consolidated argues, however, that because plaintiff was a foreman in charge of the moving operation, he was responsible under ORS 654.315 ⁵ for seeing that the provisions of the Act were met and, hence, is barred from...