Miller v. Goodyear Tire & Rubber Co., Case No. 3:19-cv-01375-IM

• Citation: 434 F.Supp.3d 877
• Decision Date: 18 January 2020
• Docket Number: Case No. 3:19-cv-01375-IM
• Parties: Adam MILLER, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY; Gardner Trucking, Inc.; International Paper Co.; and Wingfoot Commercial Tire Systems, LLC, Defendants.
• Court: U.S. District Court — District of Oregon

434 F.Supp.3d 877

Adam MILLER, Plaintiff,

v.GOODYEAR TIRE & RUBBER COMPANY; Gardner Trucking, Inc.; International Paper Co.; and Wingfoot Commercial Tire Systems, LLC, Defendants.

Case No. 3:19-cv-01375-IM

United States District Court, D. Oregon.

Signed January 18, 2020

J. Randolph Pickett, Kimberly O. Weingart, R. Brendan Dummigan, and Shangar S. Meman, Pickett Dummigan McCall LLP, 210 SW Morrison Street, Suite 400, Portland, Oregon 97204. Peter O. Hansen, Law Office of Peter O. Hansen, 620 SW Fifth Avenue, Suite 1210, Portland, Oregon 97204. Attorneys for Plaintiff.

Christopher M. Parker and Jonathan Henderson, Davis Rothwell Earle & Xochihua, PC, 200 SW Main Street, Suite 1800, Portland, Oregon 97201-5745. Attorneys for Defendant Gardner Trucking, Inc.

Walter M. Yoka, Pro Hac Vice, Yoka & Smith, LLP, Los Angeles, CA, Jeffrey D. Hern, Schwabe, Williamson & Wyatt, Portland, OR, for Defendant Goodyear Tire & Rubber Company.

Ryan J. McLellan, Sean K. Conner, Smith Freed & Eberhard, Portland, OR, for Defendant International Paper Co.

OPINION AND ORDER

IMMERGUT, District Judge Defendant Gardner Trucking, Inc. ("Defendant Gardner") filed a motion to dismiss three of the four counts against it in Plaintiff's complaint. ECF 17. On December 19, 2019, the Court held a hearing on this motion and a motion to dismiss filed by Defendant Goodyear Tire & Rubber Company ("Defendant Goodyear"), ECF 15. Plaintiff was represented at the hearing by his attorney, J. Randolph Pickett, and Defendant Gardner was represented by Jonathan Henderson. For the reasons discussed below, Defendant Gardner's motion to dismiss is granted in part and denied in part.¹

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. See Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Sol. , 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr , 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epsten Grinnell & Howell , 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

BACKGROUND

The following facts are taken from Plaintiff's complaint. See Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012) ("On a motion to dismiss, all material facts are accepted as true and are construed in the light most favorable to the plaintiff."). Plaintiff was a service technician employed by Defendant Goodyear, for whom he repaired and re-inflated tires for commercial trucks and trailers. ECF 1-1 at 5 ¶ 2. This job involves risk and danger, for which safety precautions like using a "tire cage" are generally required. Id. at ¶¶ 2–3. On July 26, 2017, Plaintiff was inflating a used "run flat" tire when it exploded, propelling the tire and rim outwards and striking Plaintiff on the right leg and side. Id. at 6 ¶ 6. This incident caused physical injuries to Plaintiff as well as distress. See id. at 7 ¶¶ 9–10.

Defendant Gardner Trucking maintains, stores, and provides services related to commercial trucks and tires. Id. at 4 ¶ 1(j). This business involves "the ownership, leasing, rental, service, maintenance, and/or supplying safety and instructional information concerning various types of machinery and products[.]" Id. at 9 ¶ 19. These operations take place at a facility owned by Defendant International Paper. Id. ; See id. at 5 ¶ 1(l). Defendant Gardner owned equipment used by Defendant Goodyear's employees and retained the right to control the tire repair process. Id. at 11 ¶¶ 25(a)–(b). Defendant Gardner, together with Defendant International Paper, shared responsibility for the work involved in this process. Id. at ¶ 25(c).

At the time of the incident, Plaintiff was replacing tires on one of Defendant Gardner's trucks, which are stored at the International Paper facility. Id. at 5 ¶¶ 1(k)–(l). Defendant Gardner failed to maintain a safe work site; did not properly train workers, managers, and assistant managers; did not inspect the tire-inflation machine and used tire; and did not observe that a tire cage was not in use. Id. at 9 ¶ 20. Plaintiff was injured as a result of these actions. Id. at 10 ¶ 21.

On July 26, 2019, Plaintiff filed this action in Multnomah County Circuit Court against Defendants Gardner, Goodyear, International Paper, and Goodyear Commercial Tires and Services. ECF 1-1. Defendants removed the case to federal court on August 28, 2019, invoking this Court's diversity jurisdiction. ECF 1. Plaintiff voluntarily dismissed Defendant Goodyear Commercial Tires and Services on September 10, 2019, as it had gone out of business before the events discussed in the complaint. ECF 12; see ECF 20 at 2 n.1. Defendant International Paper answered the complaint, and Defendants Goodyear and Gardner moved to dismiss under Rule 12(b)(6). ECF 13; ECF 15; ECF 17; see Fed. R. Civ. P. 12(b)(6).

DISCUSSION

Plaintiff's second claim for relief includes four counts against Defendant Gardner and Defendant International Paper.² ECF 1-1 at 9–15. Plaintiff has titled these counts as (1) Negligence; (2) Employers' Liability Law (Not Based on Safety Codes); (3) Employers' Liability Law (Based on Safety Codes); and (4) Negligence Per Se —Oregon Safe Employment Act. Id. Defendant Gardner contends that counts two, three, and four should be dismissed for three overlapping reasons: because the Oregon Employer Liability Law ("ELL") does not provide a statutory cause of action (counts two and three); because, given the facts alleged in the complaint, ORS 654.310 does not apply to Defendant Gardner (count three); and because the safety rules and regulations cited in the complaint do not apply to Defendant Gardner (counts three and four). ECF 17. In the following three sections, the Court addresses these arguments as they pertain to each count.

A. Count two: "Employers' Liability Law (Not Based on Safety Codes)"

Count two of Plaintiff's second claim alleges that Defendant Gardner was subject to the ELL, O.R.S. 654.305, and did not satisfy its requirements, causing Plaintiff's injuries. ECF 1-1 at 10 ¶ 24, 11 ¶¶ 27–28. Defendant Gardner argues that this count should be dismissed because the ELL does not provide a statutory cause of action. ECF 18 at 2.

The ELL provides:

Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that 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.

O.R.S. 654.305. The ELL can serve as the basis of a claim against a non-employer when the defendant is "in charge of or [has] 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." Miller v. Georgia-Pacific Corp. , 294 Or. 750, 754, 662 P.2d 718 (1983) (en banc) (citations omitted). However, while the law "gives rise to actions in negligence, ... it does not create a cause of action in addition to that of the common law." Sacher v. Bohemia, Inc. , 302 Or. 477, 481, 731 P.2d 434 (1987). In other words, an action under the ELL is an action for negligence with a higher standard of care. See Shelton v. Paris , 199 Or. 365, 368–69, 261 P.2d 856 (1953).

Defendant Gardner argues that count two, as pled, states a legally invalid claim of statutory liability. ECF 18 at 2–3. But there is no argument that count two fails to state a claim for negligence under the ELL, and Defendant Gardner's briefing makes no reference to the elements of such a claim.³ See id. The Oregon Supreme Court has allowed cases to proceed with negligence claims under both the ordinary negligence standard and the ELL standard. See, e.g. , Miller , 294 Or. at 759–60, 662 P.2d 718. Even in Sacher , which Defendant Gardner cites in...