Sacher v. Bohemia, Inc.

Decision Date13 January 1987
Docket NumberNo. 16-80-01732,16-80-01732
Citation731 P.2d 434,302 Or. 477
PartiesBart SACHER, Petitioner on Review, v. BOHEMIA, INC., an Oregon corporation, Respondent on Review. TC; CA A31373; SC S32129. . *
CourtOregon Supreme Court

William H. Wiswall, Springfield, argued the cause for petitioner on review. With him on the petition were Karen Hendricks, and Wiswall and Hendricks, P.C., Springfield, and Jacob Tanzer, and Ball, Janik & Novack, Portland.

Richard A. Roseta of Flinn, Brown & Roseta, Eugene, argued the cause for respondent on review.

CARSON, Justice.

This is a negligence action brought by plaintiff under Oregon's Employer Liability Act (ELA), ORS 654.305 to 654.335. Plaintiff was injured by a mill table saw owned by his employer, Cascade Handle Company, Inc. (Cascade), located on the premises of the Culp Creek sawmill owned by Bohemia, Inc. (Bohemia). Plaintiff sought to recover damages for severe injury to his hand from Bohemia under ORS 654.305 and 654.310. The jury returned a verdict in plaintiff's favor. After reduction for plaintiff's comparative negligence, the trial court entered a judgment for $420,000. Bohemia appealed, arguing that the trial court erred by denying its motion for directed verdict. The Court of Appeals reversed. Sacher v. Bohemia Inc., 74 Or.App. 685, 704 P.2d 528 (1985). We affirm the Court of Appeals.

THE STATUTES

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 ORS 654.310 provides:

the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices."

"All owners, contractors, subcontractors, or persons whosoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Workers' Compensation Department pursuant to ORS 654.001 to 654.295."

FACTS

Plaintiff's employer, Cascade, manufactures broom handles at its home plant in Eugene. In order to obtain the wooden stock or blanks from which to make the handles, Cascade contracted with lumber producers, such as Bohemia, whose waste from sawmill operations produced suitable raw materials. In 1973, Cascade built and installed a permanent facility at Bohemia's Culp Creek sawmill to scavenge suitable pieces of waste wood and prepare them for handle manufacture.

Cascade's operation at the Culp Creek sawmill consisted of a combination saw 1 mounted upon a 30 by 15 foot platform located adjacent to Bohemia's waste wood conveyor and approximately 50 feet from Bohemia's trim saw. Cascade's saw unit, containing both horizontal and vertical saw blades, was approximately six or seven feet long and partially enclosed in a plywood shell. The wood scavenged from the Bohemia waste wood conveyor was fed into one end of the saw unit by one Cascade employee. The wood then would be run through feed rollers to position it for a cut by the vertical saw blades. The material then passed through another set of feed rollers that positioned the wood for the horizontal saw blade. The ends then were trimmed by the trim saws. The handle blanks and waste from the blank operation then were expelled from the saw unit where the other Cascade employee, the offbearer or outfeed operator, removed the blanks and stacked them to be bundled. When the area provided for stacking became full, the Cascade employees would bundle the blanks into units and deposit the unit bundles into large bins on the level below the platform. When a bin was full, a Bohemia forklift operator would remove it to an area of the mill yard to await loading upon a Cascade truck. Bohemia's forklift operator also would load the bundled blanks onto Cascade's truck to be transported to Cascade's home plant. The waste from the Cascade saw unit was replaced onto the Bohemia conveyor to continue its journey to the chipper or the "hog." The sawdust generated was added to the waste on Bohemia's "hog" conveyor. The record indicates that Bohemia was paid by the piece or board foot of the finished blanks, and received approximately $2,000 a month from Cascade for the waste wood scavenged for the handle operation.

The platform and shelter housing the Cascade saw unit were designed and constructed by Cascade employees with materials purchased from Bohemia. Bohemia's saw filer occasionally sharpened the blades of the Cascade saws. Bohemia's millwright repaired Cascade's storage table and taught plaintiff to do the same. The millwright also instructed plaintiff how to repair the conveyor systems and plaintiff undertook the repair responsibility for both the Cascade and Bohemia operations.

Bohemia employees worked in close proximity and, upon occasion, side-by-side with Cascade employees, including plaintiff.

The employees of both companies took breaks and meals at the same time and shared common facilities for such respite.

Plaintiff was injured when he attempted to remove a "sticker"--a piece of wood jammed in the feed rollers between the two vertical saw blades and the single horizontal saw blade--while the saws were running. The vertical blades, which rotated away from plaintiff, caught the piece of wood being used by plaintiff to dislodge the "sticker" and drew his hand into the blades, causing severe injury.

THE OREGON EMPLOYERS' LIABILITY ACT

Oregon's Employers' Liability Act originally was proposed by initiative in 1910 and adopted as Oregon Laws 1911, chapter 3. Its purpose was to impose higher standards of care than did the common law upon employers engaged in lines of work "involving risk or danger." Or.Laws 1911, ch. 3, § 1. The ELA gives rise to actions in negligence, but it does not create a cause of action in addition to that of the common law. See Howard v. Foster & Kleiser, 217 Or. 516, 533, 332 P.2d 621, 629 (1958); Shelton v. Paris, 199 Or. 365, 368, 261 P.2d 856, 860 (1953).

Until 1913, when Oregon's first Worker's Compensation Act was enacted (Or.Laws 1913, ch. 112), employees injured on the job could proceed against their employers under common-law negligence, negligence per se or, after 1911, the ELA, for injuries resulting from inherently dangerous or risky work. The ELA applied only to employers "having charge of, or responsible for, any work involving risk or danger to the employees or the public." See Or.Laws 1911, ch. 3, § 1. 2

From 1913 to 1965, employers that would otherwise be subject to the ELA for injuries to their employees (i.e., those in charge of, or responsible for work involving risk or danger to their employees) could opt into the Worker's Compensation Act which would immunize them from liability under the ELA, or opt not to participate in the Worker's Compensation Act and to remain subject to the ELA. See former ORS 656.022(1); 656.024 repealed by Or.Laws 1965, ch. 285, § 95. 3

Initially, the ELA was held to allow both members of the general public and employees of employers engaged in "work involving risk or danger" to recover for injuries sustained from inherently dangerous instrumentalities under the control of the employer. See Clayton v. Enterprise Electric Co., 82 Or. 149, 161 Pac. 411 (1916). Two years after Clayton, in Turnidge v. Thompson, 89 Or. 637, 175 Pac. 281 (1918), the court limited Clayton and held that members of the general public, as such, could not recover under the ELA. In construing provisions of the original Act regarding "work on or about [electrical] wire," the court stated: "Turnidge was neither a person engaged in work on or about the wire [that caused his death] nor [was he] an employee of the owner of the wire." 89 Or. at 653.

This court held in Byers v. Hardy, 216 Or. 42, 48, 337 P.2d 806 (1959), that an action against a third-party employer could only be maintained because of the reference in ORS 654.305 to a risk or danger to "the public." "This court has consistently held that it is not every member of the public that is thus protected." 216 Or. at 48, 337 P.2d 806. The court held that those members of the "public" who are protected are:

" * * * only those whose employment or duties require them to be about machinery of an employer other than his own or whose duties may require such person to expose himself in or about hazardous Because Bohemia was not plaintiff's employer, we examine the basis upon which Bohemia otherwise could be held responsible for plaintiff's injury. As we held in Miller v. Georgia-Pacific Corp., 294 Or. 750, 754, 662 P.2d 718 (1983):

conditions or structures of such other employer which are prohibited or circumscribed by the Act. * * * " 216 Or. at 48, 337 P.2d 806.

"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 P2d 562 (1969); Thomas v. Foglio, 225 Or 540, 545-57, 358 P2d 1066 (1961)....

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