Quackenbush v. Portland General Elec. Co.

• Decision Date: 26 April 1995
• Citation: 894 P.2d 535,134 Or.App. 111
• Parties: Melissa A. QUACKENBUSH, individually and as Personal Representative of the Estate of Gary D. Quackenbush, Deceased; and Aaron D. Quackenbush, by and through his Guardian Ad Litem, Melissa A. Quackenbush, Appellants, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation; and Asplundh Tree Expert Co., a Pennsylvania corporation, Respondents. 9302-01248; CA A83375.
• Court: Oregon Court of Appeals

Page 535

894 P.2d 535

134 Or.App. 111

Melissa A. QUACKENBUSH, individually and as Personal Representative of the Estate of Gary D. Quackenbush, Deceased; and Aaron D. Quackenbush, by and through his Guardian Ad Litem, Melissa A. Quackenbush, Appellants, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation; and Asplundh Tree Expert Co., a Pennsylvania

corporation, Respondents.

9302-01248; CA A83375.

Court of Appeals of Oregon.

Argued and Submitted Jan. 25, 1995.

Decided April 26, 1995.

[134 Or.App. 112-A] Charles W. Carnese, Portland, argued the cause for appellants. With him on the briefs was Dan R. Hyatt.

Michael A. Lehner, Portland, argued the cause for respondent Portland General Electric Company. With him on the brief was Lehner, Mitchell, Rodrigues & Sears.

Edward S. McGlone, III, Portland, argued the cause and filed the brief for respondent Asplundh Tree Expert Co.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Plaintiffs ¹ appeal from a summary judgment for defendants on their claims against Portland General Electric Company (PGE) and Asplundh Tree Expert Co. (Asplundh). We reverse in part.

A court shall grant summary judgment when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. On review of a summary judgment, we examine the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Mittleman Properties v. Bank of California, 131 Or.App. 666, 668, 886 P.2d 1061 (1994).

When the evidence is viewed in the light most favorable to plaintiffs, the summary judgment record indicates the following: In October 1991, Pruett, Inc. (Pruett) was retained by the owner of a residence to prune various trees in the back yard of the residence. In November 1991, Pruett sent a crew to the job site to prune the trees. The crew noticed that there was a power line that ran through an oak tree in the back yard. The crew decided not to prune the oak tree because of the electrical line.

Thereafter, Steve Hillinger, an employee of Pruett, contacted PGE about the electrical line. In response to the contact, Dave Johnson, a forester for PGE, hired Asplundh to perform line-trimming on the oak tree. After Asplundh trimmed around the line, the line was three to four feet from the tree trunk. Johnson called Hillinger and told him that PGE had finished its task. Later in November, Pruett sent Gary Quackenbush (the decedent) and Jim Field to the residence to complete the pruning of the oak tree. While the decedent was in the tree, he came into contact with the line and was electrocuted, resulting in his death. As a result, plaintiffs filed this action for wrongful death. They allege that PGE and Asplundh are liable under the Employers Liability Act (ELA), ² for common law negligence and negligence per se.

First, plaintiffs argue that the trial court erred in granting defendants' motions for summary judgment on the ELA claim. ORS 654.305 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 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."

Plaintiffs assert that defendants were the decedent's "indirect employers" under the ELA, and as such, were responsible for providing safe working conditions. The test for determining whether or not a defendant is an indirect employer under the ELA is set forth in Miller v. Georgia-Pacific Corp., 294 Or. 750, 754, 662 P.2d 718 (1983):

"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."

The Supreme Court in Sacher v. Bohemia, Inc., 302 Or. 477, 486-87, 731 P.2d 434 (1987), described the elements of a "common enterprise":

"Thus, the 'common enterprise' test requires, first, that two employers (the plaintiff's actual employer and a third-party defendant employer) participate in a project of which the defendant employer's operations are an 'integral' or 'component' part; * * * second, the work must involve a risk or danger to the 'employees or the public,' ORS 654.305; third, the plaintiff must be an 'employee' of the defendant employer * * * and fourth, the defendant employer must have charge of or responsibility for the activity or instrumentality that causes the plaintiff's injury."

In Wilson v. P.G.E. Company, 252 Or. 385, 391-92, 448 P.2d 562 (1968), the Supreme Court said:

"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. The injury must result by virtue of the commingling of the activities of the two employers and not be solely attributable to the activities or failures of the injured workman's employer."

See also Fortney v. Crawford Door Sales Corp., 97 Or.App. 276, 775 P.2d 910 (1989) (no liability under ELA when general contractor's employee brought action against supplier of overhead rolling steel doors).

Plaintiffs argue that defendants' participation was an integral or component part of the project within the meaning of the ELA. We do not agree. The project in which Pruett was involved was the ornamental trimming of the entire tree. For liability to be imposed, the participation in the project "must be more than a common interest in an economic benefit" that accrues from the accomplishment of the project. Sacher, 302 Or. at 486, 731 P.2d 434. PGE and Asplundh performed the limited activity of pruning around the electrical line. They finished their work before Pruett started its work, and there were no employees of defendants present when decedent was working on the tree. ³ At that time, defendants had no charge over or responsibility for Pruett's work. Although an employer can be "in charge" of an activity that forms only a component part of the common enterprise, that component part must be part of the commingling of the activities of the two employers out of which the injury arises. Wilson, 252 Or. at 391-92, 448 P.2d 562. Decedent was not injured while defendants were involved in their activity. His death occurred after defendants' activity had ended. Consequently, the facts on which plaintiffs rely do not support a common enterprise theory.

The second test under which plaintiffs claim PGE and Asplundh are indirect employers is the "right to control" test. In applying this test, we inquire whether defendants "retained a right to control or actually exercised control as to the manner or method in which the risk-producing activity was performed." Miller, 294 Or. at 754, 662 P.2d 718. Although defendants were responsible for the pruning around the power line, there is no evidence that they controlled or retained the right to control Pruett's work in pruning the tree. To be liable, PGE and Asplundh must have exercised or retained a right to control the manner or method in which the risk-producing activity was performed. See Steiner v. Beaver State Scaffolding Equipment Co., 97 Or.App. 453, 777 P.2d 965 (1989) (no liability under ELA for supplier of scaffolding to construction site). The facts are uncontroverted that they did not have that right. The trial court did not err in granting summary judgment on plaintiffs' ELA claim.

In their second assignment of error, plaintiffs contend that the trial court erred in granting summary judgment on the claim that alleges that PGE and Asplundh were negligent under the common law. Specifically, plaintiffs maintain that PGE was negligent in failing to de-energize the electrical transmission line, in failing to install protective equipment over the electrical transmission line, in failing to have a qualified supervisor and an additional qualified employee on site during the trimming of the tree, in failing to assure that the tree had been adequately pruned around the electrical transmission line so that it could be pruned safely, and in advising Pruett that the tree could be pruned safely by its personnel. Plaintiffs make similar allegations against Asplundh.

Our first inquiry in determining whether summary judgment was appropriate on plaintiffs' claim is whether there was a special duty created by status, relationship or statute owed by defendants to decedent. Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). Plaintiffs argue that such a relationship existed because PGE and Asplundh were the "indirect employers" of decedent. However, for the reasons expressed previously, defendants were not the indirect employers of decedent. Plaintiffs also argue that, pursuant to ORS 757.805(1), defendants were "business entities responsible for performing activity and work in proximity to a high voltage overhead line; [thus,] they had the responsibility to guard...