Panpat v. Owens-Brockway Glass Container

• Decision Date: 11 July 2002
• Citation: 334 Or. 342,49 P.3d 773
• Parties: Sommuang PANPAT, as Personal Representative for the Estate of Achara Tanatchangsang, Petitioner on Review, v. OWENS-BROCKWAY GLASS CONTAINER, INC., a Delaware corporation, Respondent on Review, and Stanley-Smith Security, a Texas corporation, dba Wallace Security, Wallace Prince, individually and in his capacity as Security Supervisor, and A.J. Campbell, individually and in his capacity as a Security Officer, Defendants. Owens-Brockway Glass Container, Inc., a Delaware corporation, Third-Party Plaintiff, v. Estate of Chris A. Blake, Third-Party Defendant.
• Court: Oregon Supreme Court

49 P.3d 773

334 Or. 342

Sommuang PANPAT, as Personal Representative for the Estate of Achara Tanatchangsang, Petitioner on Review, v. OWENS-BROCKWAY GLASS CONTAINER, INC., a Delaware corporation, Respondent on Review, and Stanley-Smith Security, a Texas corporation, dba Wallace Security, Wallace Prince, individually and in his capacity as Security Supervisor, and A.J. Campbell, individually and in his capacity as a Security Officer, Defendants.

Owens-Brockway Glass Container, Inc., a Delaware corporation, Third-Party Plaintiff, v. Estate of Chris A. Blake, Third-Party Defendant.

(CC 9708-06234; CA A104501; SC S48419).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 13, 2002.

Decided July 11, 2002.

Kathryn Hall Clarke, Portland, argued the cause for petitioner on review. Jana Toran, Portland, and James Patrick McHugh, Jr., filed the briefs for petitioner on review.

Lee Ann Huntington, of Morgenstein & Jubelirer LLP, San Francisco, argued the cause for respondent on review. With her on the briefs were Stephen M. Hankins, San Francisco, and Charles F. Adams and Andrew R. Gardner, of Stoel Rives LLP, Portland.

De MUNIZ, J.

The issue in this case is whether the exclusivity provision of the Oregon Workers' Compensation Law bars plaintiff's civil action against the decedent's employer. Chris Blake killed his former girlfriend, Achara Tanatchangsang (decedent), at their place of employment, Owens-Brockway Glass, Inc. (Owens). Plaintiff Panpat, as the personal representative of decedent's estate, brought a wrongful death action against defendant Owens. Owens moved for summary judgment arguing, inter alia, that Owens lacked notice that Blake was dangerous and that the workers' compensation statutes provided plaintiff's exclusive remedy. The trial court granted summary judgment on the ground that Owens did not have notice that Blake was dangerous. However, the trial court later granted a new trial based on newly discovered evidence. Owens appealed from that ruling. The Court of Appeals reversed the order granting the new trial and remanded with instructions to enter judgment in Owens's favor, on the ground that the workers' compensation scheme provided the exclusive remedy for plaintiff's claim. Panpat v. Owens-Brockway Glass Container, 172 Or.App. 470, 21 P.3d 97 (2001). We allowed review, reverse the decision of the Court of Appeals and remand to that court for further consideration.

We take the following facts from the Court of Appeals' opinion:

"Chris Blake and Achara Tanatchangsang worked on the same shift in employer's Portland manufacturing plant. Blake and Tanatchangsang were also involved in a romantic relationship that ended in November 1995. In January 1996, Blake told employer's plant superintendent that he was having difficulty coping with the breakup and that he did not want to work the same shift as Tanatchangsang. Employer's plant superintendent approached Tanatchangsang and offered to transfer her to a different shift. Tanatchangsang did not want to be transferred, however. In January 1996 and again in March 1996, Tanatchangsang reported to her supervisor that Blake had called her derogatory names. At some point after the March 1996 incident, Blake was placed on medical leave.

"In April 1996, while still on medical leave, Blake entered employer's manufacturing plant and shot and killed Tanatchangsang while she was at work. He then killed himself."

172 Or.App. at 473, 21 P.3d 97.

Plaintiff filed this wrongful death action alleging that Owens had acted negligently by failing to provide sufficient workplace security that would have protected decedent from Blake. Plaintiff alleges that Owens's negligence had been a substantial factor in causing decedent's death. Specifically, plaintiff alleged that Owens negligently

"created a foreseeable risk of harm to Tanatchangsang in the following particulars:

"(a) In failing to instruct security officers to refuse entry to Blake;

"(b) In failing to provide training to security officers regarding [Owens'] policies;

"(c) In failing to provide Tanatchangsang security despite knowledge that Blake posed a substantial risk of harm to her;

"(d) In failing to intervene when notified Tanatchangsang was being held at gunpoint;

"(e) In allowing a visibly intoxicated person to enter the facility; and, or

"(f) After observing Blake's presence, by failing to direct him to exit the premises."

Id. at 473-74, 21 P.3d 97.

Owens moved for summary judgment on two grounds. First, Owens asserted that it had no notice of the need to control Blake and that Blake's criminal act had not been foreseeable. Second, Owens maintained that the Oregon workers' compensation system provided the exclusive remedy for plaintiff's claim. The trial court granted summary judgment, concluding that plaintiff had "failed to present a genuine issue for trial concerning [Owen's] knowledge of the need to control Chris Blake."

Plaintiff then requested a new trial after discovering that Owens had adopted a workplace violence policy. According to plaintiff, Owens had failed to follow that policy when it had become aware that Blake had called decedent derogatory names at work. Under the workplace violence policy, plaintiff argued, Owens had imposed on itself a policy to take action to prevent further incidents. According to Owens, however, the workplace policy had not been adopted until after the shooting. Reasoning that the discovery of the workplace violence policy created a disputed issue of fact as to the policy's effective date, the trial court granted plaintiff's motion for a new trial and Owens appealed from that order. That appeal led to our review here.

In the Court of Appeals, Owens argued that evidence of the workplace violence policy was inadmissable as a subsequent remedial measure, and that it was error to grant a new trial on that basis. Alternatively, Owens maintained that the exclusive remedy provision of the workers' compensation statutes precluded plaintiff's wrongful death action because her death arose out of her employment. The Court of Appeals agreed with Owens's exclusivity argument, holding that the parts of plaintiff's complaint alleging that Owens had played some role in causing decedent's death meant that her death had arisen out of her employment, thus triggering the exclusivity provision of the Workers' Compensation Law. 172 Or.App. at 477-79,21 P.3d 97.

At the outset, we note that the issue in this case—whether plaintiff's claim involves a "compensable" injury for which the administrative remedy under the Workers' Compensation Law is exclusive—does not require invocation of the doctrine of "primary jurisdiction." See Boise Cascade Corp. v. Board of Forestry, 325 Or. 185, 191-93, 935 P.2d 411 (1997)

(discussing doctrine). It is true that the Workers' Compensation Board (board) routinely addresses questions regarding the compensability of workplace injuries. However, we see nothing regarding the board's statutory jurisdiction or adjudicative responsibilities that makes the board, rather than a court, a preferable forum, in the primary jurisdiction sense, for the resolution of the issue presented here. See Krushwitz v. McDonald's Restaurants, 323 Or. 520, 525 n. 3, 919 P.2d 465 (1996) (rejecting dismissal or abatement of wrongful death action to allow parties to resort to workers' compensation system because "such a result would serve no constructive purpose"); Kilminster v. Day Management Corp., 323 Or. 618, 624-25, 919 P.2d 474 (1996) (addressing on merits, without referral to board, question whether ORS 656.018 precluded wrongful death claim based on negligence theory). Consequently, we turn to the merits of plaintiff's claim and defendant's exclusivity defense.

Generally, we review for errors of law when a trial court has granted a motion for a new trial. Bennett v. Farmers Ins. Co., 332 Or. 138, 151, 26 P.3d 785 (2001). Here, the trial court reconsidered its order granting summary judgment, believing that a disputed issue of fact prevented that disposition. The Court of Appeals concluded that summary judgment was the correct result because the Workers' Compensation Law, not tort law, provided the exclusive remedy. That holding rendered the allegedly disputed fact irrelevant. If the Court of Appeals was correct, then the trial court erred as a matter of law in granting a new trial.

When the Workers' Compensation Law provides the basis for a compensable injury claim, then that remedy is exclusive and the worker cannot seek a tort remedy instead. ORS 656.018(1)(a).¹ Conversely, if the injury did not arise out of and in the course of employment, then the exclusivity provision of the Workers' Compensation Law is not a bar to a civil action against an employer for personal injuries. See Krushwitz, 323 Or. at 525,

919 P.2d 465 (explaining operation of exclusivity provisions in ORS 656.018(1)(a)). Therefore, the issue in this case is one of compensability under the Workers' Compensation Law.

The legislature has provided an analytical framework, which this court has interpreted numerous times, to determine whether a claim should be considered compensable under the workers' compensation scheme. Allegations of employer negligence might or might not be relevant in making that determination, depending on the context and stage of the proceedings. See Newell v. Taylor, et al, 212 Or. 522, 530, 321 P.2d 294 (1958)

("Negligence plays no part in the injured workman's right to compensation, * * * while it is of the essence in tort actions."). Here, because the issue reaches this court at the summary judgment stage, it is the factual record that provides the principal basis for our resolution of the issue. We now turn to the question whether decedent's death gave rise to a compensable claim.

A compensable injury, for purposes of workers' compensation is an injury "arising out of and in the course of employment * * *." ORS 656.005(7)(a). This court treats "arising out...