Quirk v. Skanska U.S. Bldg., Inc.
| Decision Date | 30 May 2018 |
| Docket Number | Case No.: 3:16-cv-0352-AC |
| Parties | DAVID QUIRK, Plaintiff, v. SKANSKA USA BUILDING, INC., a Delaware corporation, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff David Quirk ("Quirk") sues defendant Skanska USA Building, Inc. ("Skanska"), asserting multiple state law claims. The claims arise from injuries Quirk sustained while working on a construction project for which Skanska served as general contractor. Skanska moves for summary judgment on all claims. For the reasons set forth below, the court grants in part and denies in part Skanska's motion.1
Skanska served as general contractor for the construction of a Lam Research facility in Tualatin, Oregon. The project included the construction of a cleanroom and various mechanical devices therein. To help complete the job, Skanska hired multiple subcontractors, one of which was Quirk's employer, Charter Mechanical ("Charter").
In November 2013, Skanska and Charter entered into a master subcontract (the "Subcontract") for project-related work including the installation of new piping in the cleanroom. (See Subcontract, McLellan Decl., Ex. A, at 1.) Under the Subcontract, Charter was required to provide Skanska with a "work plan" containing a breakdown of Charter's specific activities at the site and the expected time each task would take to complete. (Subcontract, Declaration of Dylan Hydes, ECF No. 23-2 ("Hydes Decl."), Ex.12, at 4, ¶ 3.3.) From that plan, Skanska would develop a master "project schedule" to "coordinate the times required for each area of work on the project" and "decide the time, order and priority for performance of . . . [Charter]'s Work to the extent necessary, in [Skanska]'s judgment, to . . . direct the performance of the Work accordingly." (Id. at ¶ 3.4; ¶ 9.2.) If any of Charter's activities conflicted with other work to be completed at the site, Skanska could "direct the performance of [Charter's] Work accordingly" or, in its discretion, direct a "change order" as to Charter's work at any time. (Id. at 2-3, ¶ 2.4; 6, ¶10.1.)
The Subcontract incorporated as exhibits Skanska's standard code of conduct and environmental health and safety requirements. (Subcontract, McLellan Decl., Ex. A, at 2.) Under those documents, Charter "agree[d] that the prevention of accidents to workmen engaged upon or in the vicinity of the project [wa]s its responsibility." (Id. at 6.) Charter also agreed to appoint a designated safety representative and to comply with all applicable laws and rules related to environmental health and safety, including those "established by [Skanska]." (Id.)
Skanska also could remove Charter's designated safety representative, stop work because of unsafe conditions, implement safety measures at Charter's expense, and conduct "reasonable unannounced searches" of the work area and of Charter's employees. (Subcontract, McLellan Decl., Ex. A, at 6-9.) Charter was required to comply with Skanska's Fall Prevention and Protection Policy, which required that "no worker exposed to a fall hazard of six (6) feet or greater will work without 100% fall protection," meaning it either had to prevent fall hazards of more than six feet or to provide such fall protection where necessary. (Id. at 7.)
Skanska conducted daily safety hazard walks around the job-site, including the cleanroom. (Hydes Decl., Deposition of Miguel Lopez, Ex. 6, at 23:6-12; Deposition of Darren McGill ("McGill Dep."), Ex. 5, at 49:9-50:8; Subcontract, Ex. 12., at 10.) Each day, Skanska led a morning meeting for the subcontractors. (Hydes Decl., Deposition of David Quirk ("Quirk Dep."), Ex.10, at 112:1-22; Deposition of Joseph Gergen, Ex. 7, at 26:5-27:16.) During the meeting, each subcontractor present at the site would report to Skanska about on what and where they intended to work that day, including any relevant safety matters. (Id.; Hydes Decl., Deposition of Ben Gaunt, Ex. 2 ("Gaunt Dep."), at 9:20-25,11-3; McGill Dep. Ex. 5, at 42:7-43:17, 57:6-58:9.) If Skanska coordinators detected a conflict, a subcontractor might be redirected. (McGill Dep., Ex. 5,34:19-23.)
The cleanroom floor consisted of two levels — the central portion of the room was sub-grade, leaving an elevated "ledge" up against the room's four walls. (Quirk Dep., Hydes Decl., Ex. 10, at 26:21-24, 80:7-17; 93:23-24; McGill Dep., Ex. 5, at 22:6-17; 84:5-9; see Ex. 14 for photographs.) The ledge measured approximately 18-inches wide and four-feet above the subgrade. (Quirk Dep., Hydes Decl. Ex. 10, at 124:24-125:2; McLellan Decl., Ex. B, at 84:18-20.) The ledge was interrupted along one side of the room by an approximately two-foot wide trench, leaving a hole or opening in the ledge. (Hydes Decl., Ex. 14, at 1, 4; Quirk Dep., McLellan Decl., Ex. B, at 130:10-16.) The opening was covered initially by a large, heavy tile, then later replaced with plywood. (Quirk Dep., Hydes Decl. Ex. 10, at 91:9-92:25; McGill Dep., Ex. 5, at 79:11-80:20.) Those covers were later removed, however, to allow another subcontractor to apply a white, shiny, epoxy-like coating to all of the cleanroom's surfaces, including the floor, the ledge, and the opening. (Hydes Decl., McGill Dep., Ex. 5, at 67:21-68:6; 83:1-7; Gaunt Dep., Ex. 2, at 25:4-12.)
In late March, 2014, Skanska closed the cleanroom to contractors for three to four days to allow the coating to cure. (Hydes Decl., Deposition of Feodor Pukhalsky ("Pukhalsky Dep."), Ex. 4, at 26:9-27:9; Gaunt Dep., Ex. 4, at 13:9-18; Deposition of Robert Filley, Ex. 8., at 22:19-25.) Once cured, Skanska representatives did not replace the cover over the trench because doing so could have compromised the integrity of the coating. (Hydes Decl., McGill Dep., Ex. 5, at 83:4-7, 84:1-5; Gaunt Dep., Ex. 2, at 25:4-12.)
Quirk worked as a pipefitter for Charter on the Lam cleanroom project. (Quirk Decl., ¶¶ 2, 3, 7). On April 2, 2014, the day the cleanroom was reopened after the coating cured, Quirk reported to Skanska's morning meeting, ready to label pipes and replace gauges on the cleanroom's coils.(Quirk Dep., Hydes Decl., Ex. 10, at 56:1-25.) At the morning meeting, Skanska representatives announced that the cleanroom was once again accessible to workers, but to protect the new coating, workers entering had to wear booties. (Id.; Gaunt Dep., Ex. 2, at 51:13-53:15.) No mention was made of the trench and no warning tape surrounded it. (Id. at 52:23-53:4; Pukhalsky Dep., Ex. 4, at 49:24-50:10.) Skanska's meeting leader instructed Quirk and his Charter colleague, Don Condit, to perform their pipefitting work in the cleanroom first, before any other subcontractors. (Quirk Dep., Hydes Decl., Ex. 10, at 56:4-25.)
Quirk had worked in the cleanroom more than 20 times previously, the most recent occasion being four weeks prior. (Quirk Dep., McLellan Decl., Ex. B, at 91:11-17.) He had seen Skanska and other Charter employees stand on the ledge before to accomplish their work in the cleanroom. (Quirk Dep., Hydes Decl., Ex. 10, at 80:3-6.) He was aware the trench existed, but he had never needed to stand on the ledge or cross over it, because the trench always had been covered. (Id. at 92:10-16; McGill Dep., Ex. 5, at 79:2-7.) According to both Quirk and another subcontractor working in the cleanroom that day, the new, shiny, white appearance of the coating caused the trench to blend in with the surrounding ledge. (Quirk Dep., Hydes Decl., Ex. 10, at 95:4-7 (); Pukhalsky Dep., Ex. 4, at 55:11-56:6 ().)
To access the pipe gauges, Quirk climbed onto the ledge and walked, "sidestepping," along it. (Quirk Dep., Hydes Decl., Ex. 10, at 80:21-81:6; McLellan Decl., Ex. B, at 76:11-78:2, 80:3-6.) Quirk testified he believed walking sideways was safer than walking straightforward because he could hold on to the "ribs" of the wall. (Id.) Without "see[ing]" the trench, Quick stepped into it, hitting his back on its angle iron-corner. (Quirk Dep., Hydes Decl., Ex. 10, at 84:18-20.) Hesuffered physical injuries as a result. (Id.; Hydes Decl., Ex. 11; McLellan Decl., Ex. B, at 111:15-18.)
Quirk filed suit against Skanska in state court, alleging violation of the Oregon's Employer Liability Law ("ELL") and the Oregon Safe Employment Act ("OSEA") and asserting claims of negligence and negligence per se. (See Complaint, ECF No. 1, at 4-9.) Skanska timely removed the case to this court, (Notice of Removal, ECF No. 1), and now moves for summary judgment on all of Quirk's claims ("Motion"). (Def.'s Mot. for Summ. J., ECF No. 16, ("Motion").)
In its reply brief, Skanska objects to and moves to strike portions of Quirk's response brief and supporting materials. The court addresses each evidentiary objection in turn.
Quirk proffers evidence of what he deems subsequent remedial measures instituted by Skanska after his accident. Skanska objects that such evidence as inadmissible under Federal Rule of Evidence ("FRE") 407.
Though evidence of subsequent remedial measures ordinarily is prohibited to show a defendant's negligence, under Oregon law, such evidence is admissible in cases brought under the ELL. Rich v. Tile-Knot Pine Mill, 245 Or. 185, 199 (1966). Federal Rule of Evidence 407, however, generally prohibits such evidence. FED. R. EV. 407 (). The Ninth Circuit has held that even where state law governs substantive questions, in diversity cases,...
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