Miller v. Georgia-Pacific Corp.

• Citation: 294 Or. 750,662 P.2d 718
• Decision Date: 26 April 1983
• Docket Number: GEORGIA-PACIFIC
• Parties: Robert L. MILLER, Petitioner on review, v.CORPORATION, a Georgia corporation, and Consolidated Equipment Sales, Inc., a Texas corporation, dba Northwest Roads, Inc., Respondents on review. CA 18589; SC 28400.
• Court: Supreme Court of Oregon

Page 718

662 P.2d 718

294 Or. 750

Robert L. MILLER, Petitioner on review, v. GEORGIA-PACIFIC CORPORATION, a Georgia corporation, and Consolidated Equipment Sales, Inc., a Texas

corporation, dba Northwest Roads, Inc.,

Respondents on review.

CA 18589; SC 28400.

Supreme Court of Oregon,

In Banc.

Argued and Submitted July 14, 1982.

Decided April 26, 1983.

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

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

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

PETERSON, Justice.

This case involves interpretation and application of the Oregon Safe Employment Act (ORS 654.001.295, ORS 654.991) and what is popularly referred to as the Employer's Liability Act (ELA) (ORS 654.305-.335). The questions arise incident to a damage claim by a worker injured as the result of alleged negligence of two defendants, neither of whom was the plaintiff's employer. The trial court directed a verdict in favor of both defendants. The Court of Appeals reversed and remanded for a new trial as to the defendant Consolidated Equipment Sales, Inc. (Consolidated) and affirmed as to the defendant Georgia-Pacific Corporation (GP). We affirm as to GP, and affirm in part and reverse in part as to Consolidated, 55 Or.App. 358, 637 P.2d 1354.

A brief overview of the applicable statutes will assist in understanding the issues. Oregon has long had an Employer's Liability Act and a safety act. ¹ In 1973, the legislature enacted the Oregon Safe Employment Act, Or.Laws 1973, ch. 833. It retained many provisions from previous safety legislation (referred to in our earlier decisions as the "safety code" or "safety act"), gave the Workers' Compensation Board greater regulatory power, and provided for sanctions and criminal penalties. ORS 654.022 states that "[e]very employer, owner, employe and other person shall obey and comply with every requirement of every * * * rule or regulation made or prescribed by the department [the Workers' Compensation Department] * * * relating "The director may, by general or special orders, or by regulations, rules, codes or otherwise:

                to or affecting safety and health in employments or [294 Or. 753] places of employment * * *." 2  ORS 654.025 authorizes the Director of the Workers' Compensation Department and the Workers' Compensation Board to promulgate rules for the purpose of carrying out their functions under the Law.  ORS 654.035(1) provides
                

"(1) Declare and prescribe what devices, safeguards or other means of protection and what methods, processes or work practices are well adapted to render every employment and place of employment safe and healthful."

In a number of cases decided before 1973, this court held that a violation of a safety code rule or regulation establishes negligence per se upon a negligence claim and constitutes a violation of the ELA, Blaine v. Ross Lbr. Co., Inc., 224 Or. 227, 234, 355 P.2d 461 (1960); Arnold v. Gardiner Hill Timber Co., 199 Or. 517, 523, 263 P.2d 403 (1953); Baldassarre v. West Oregon Lbr. Co., 193 Or. 556, 561, 239 P.2d 839 (1952). This is so whether the claim is against one's employer or against an employer whose activities created a risk of injury to the employees of others whose work required them to come within such risk of injury. Blaine, supra, 224 Or. at 234-35, 355 P.2d 461.

First enacted in 1910 by initiative petition, the ELA requires a higher degree of care for employers and others having charge of work involving risk or danger to employees. ORS 654.305 provides:

"Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices."

This court has repeatedly construed the ELA "to apply to employees of a person other than the defendant, if their work requires them to come within the risk of injury from the defendant's instrumentalities." Blaine, supra, 224 Or. at 235, 355 P.2d 461; See Myers v. Staub, 201 Or. 663, 668, 272 P.2d 203 (1954); Rorvik v. North Pac. Lumber Co., 99 Or. 58, 70, 190 P. 331, 195 P 163 (1920).

Before the ELA can be made the basis of a claim for relief by an injured worker suing a defendant other than an employer of the worker, however, the defendant must be in charge of or have responsibility for work involving risk or danger in either (a) a situation where defendant and plaintiff's employer are simultaneously engaged in carrying out work on a common enterprise, or (b) a situation in which the defendant retains a right to control or actually exercises control as to the manner or method in which the risk-producing activity is performed. Wilson v. P.G.E. Company, 252 Or. 385, 391-92, 448 P.2d 562 (1969); Thomas v. Foglio, 225 Or. 540, 545-57, 358 P.2d 1066 (1961). With these general principles in mind, we turn to the disposition of the case before us. The facts are without substantial dispute.

I THE FACTS

GP operates a plywood mill at Toledo, Oregon. In 1976, GP ordered a chip dozer tractor from Consolidated. The tractor was equipped with a blade which had been manufactured by Medford Steel Division, CSC, Inc. (Medford). Plaintiff was the general manager of Medford.

In February, 1977, the dozer, with the blade attached, was delivered by Consolidated to GP. Consolidated warranted the blade against breakage for one year and agreed to repair the blade during the warranty period at its expense. The cutting edge of the blade was 28 feet long, 12 inches wide, and weighed 1,400 pounds.

After five days of operation, the blade broke. Consolidated repaired it. After five more days of operation, the blade again broke. The GP maintenance supervisor, Jack Kirkland, called the Consolidated service manager, Dave Privat. Privat called Medford, and arrangements were made for plaintiff to go to Toledo to see the broken blade.

On March 16, 1977, plaintiff arrived at the Toledo site with another Medford employee, Ray Morton, Medford's shop superintendent. Plaintiff's purpose in going to the Toledo mill was to inspect the broken blade in order to determine what Medford should do to correct the situation.

Upon his arrival, plaintiff met Kirkland. Thereafter, Kirkland, Morton, plaintiff, Privat, and Joe Loughry, another Consolidated employee, went to a chip pile in which the blade was imbedded. Plaintiff wanted to examine the blade, so Privat told Loughry to take a Consolidated pickup truck, hook a chain from the back of the pickup to a brace which was sticking up out of the chip pile and pull the blade from the chips. Loughry did not know whether he looked to his rear between the time he started and the time that the plaintiff was struck. After the connection was made, Loughry gave the truck a "bit of a jerk," the cutting edge rose up in the air and the blade swung sideways from the pile and struck the plaintiff in the legs, fracturing both ankles.

There was also evidence that GP had a hydraulic crane which could have been used to lift the blade from the chip pile. The plaintiff claimed that GP was negligent in failing to provide and require that the mobile crane be used to lift the blade from the chip pile.

II

THE PLAINTIFF'S THEORIES OF RECOVERY, THE DEFENDANTS'

DEFENSES, AND THE COURT RULINGS

The plaintiff's amended complaint contains two counts. The first count is based on a theory of common law negligence and contains allegations of specific acts of negligence and specific safety code violations. The second count incorporates by reference the acts of alleged negligence and the alleged violations of the safety codes and concludes with a typical ELA allegation that the work "involved risk and danger," that "the plaintiff was an employee exposed to said risk and danger" and that the defendants "failed to use every device, care or precaution which it is practicable to use for the protection and safety of life and limb and that the defendants failed to furnish plaintiff a place of employment which was safe * * *."

In their answers, the defendants affirmatively alleged that the plaintiff was contributorily negligent and that at the time of the accident, plaintiff "was a foreman or other person having charge of the particular work then being carried on * * * and * * * was under a duty to see that the requirements of the Employer's Liability Act were complied with at that time." This defense involves the so-called "vice-principal rule."

At the conclusion of the case, the trial judge granted directed verdicts and entered judgment in favor of both defendants. Plaintiff appealed to the Court of Appeals, which reversed and ordered a new trial as to the defendant Consolidated, and affirmed the directed verdict in GP's favor. The Court of Appeals held:

1. Although GP was the occupier of the premises where the incident occurred, it had no liability under either theory advanced by the plaintiff because it took no part in the activity--the moving of the blade--by direct participation in the enterprise or by exercising control over the manner or method in which the work was conducted. 55 Or.App. at 362, 637 P.2d 1354 (citing Wilson v. P.G.E. Company, 252 Or. 385, 391, 448 P.2d 562 (1969)).

2. Plaintiff's ELA evidence against Consolidated was, as a matter of law, insufficient because plaintiff was "in charge of the job of inspection" and therefore barred under the application...