Schroeder v. Northrop Services, Inc.

• Decision Date: 22 September 1987
• Citation: 739 P.2d 33,86 Or.App. 112
• Parties: William P. SCHROEDER, Appellant, v. NORTHROP SERVICES, INC., a California corporation, Respondent. A8311-07245; CA A38381.
• Court: Oregon Court of Appeals

Page 33

739 P.2d 33

86 Or.App. 112

William P. SCHROEDER, Appellant, v. NORTHROP SERVICES, INC., a California corporation, Respondent.

A8311-07245; CA A38381.

Court of Appeals of Oregon.

Argued and Submitted March 20, 1987.

Decided June 24, 1987.

Reconsideration Denied Aug. 14, 1987.

Review Denied Sept. 22, 1987.

J. Rion Bourgeois, Portland, argued the cause and filed the briefs for appellant.

John R. Faust, Jr., Portland, argued the cause for respondent. With him on the brief were Schwabe, Williamson, Wyatt, Moore & Roberts, Allan M. Muir and W.A. Jerry North, Portland.

Before WARDEN, P.J., JOSEPH, C.J., ^* and VAN HOOMISSEN, J VAN HOOMISSEN, Judge.

Plaintiff brought this personal injury action against defendant under the Employers' Liability Act (ELA), ORS 654.305 et seq. ¹ He appeals from a judgment of dismissal entered after a directed verdict against him. ORCP 60. ² The issue is whether he presented sufficient evidence at trial that defendant had the right to control or actually exercised control as to the manner or method in which the risk-producing activity was performed. In determining the propriety of a directed verdict in this case, we view the evidence in the light most favorable to plaintiff, who is entitled to the benefit of every reasonable inference which may be drawn from it. See Foster v. Schnell Refrigeration Co., 280 Or. 411, 414, 571 P.2d 497 (1977). We reverse.

Plaintiff worked as a chemist for the Environmental Protection Agency (EPA). He was assigned to do chemical analysis in EPA's facility at the Marine Science Center in Newport (MSC), which was located in space that EPA had leased from Oregon State University (OSU), MSC's parent. Defendant provided services to EPA at MSC. ³ Plaintiff's three co-workers in the lab, Killian, Boese and Stuart, were defendant's employes. They did the same kind of chemical analyses as plaintiff. They used the same equipment and chemicals, including a variety of toxic and carcinogenic solvents and priority pollutants. Killian developed the procedures used in the lab, which involved evaporating large quantities of solvents. That produced noxious chemical vapors which were expected to be removed by the lab's ventilation system.

Safety inspections of the ventilation system performed at EPA's request in 1979 and 1980 disclosed defects. Baumgartner, Director of the Marine Division, Environmental Research Lab, testified that he was aware that the lab was not up to EPA standards. The defects were discussed at a Safety and Health Committee meeting on April 22, 1980, which Pettit, defendant's supervisor, attended. Betro, a Bendix Engineering Corporation health and safety consultant, inspected the lab for EPA in 1980. He noted defects in the ventilation system that he considered to be a health and safety problem. He advised against using carcinogens and priority pollutants in the lab at a committee meeting on September 22, 1980, which Pettit also attended. Louden, who succeeded Betro, inspected the facility between late 1980 and late 1982. She did not believe that there was a significant health or safety problem. Neither she nor the safety committees on which she served reported to defendant. Scott, defendant's safety officer, visited the lab in March, 1981, and conducted a "tissue test" of the ventilation hoods. In May or June, 1981, she conducted training on the handling of hazardous materials for defendant's employes.

After working in the lab, plaintiff and Killian complained to their respective supervisors about conditions there. Both suffered health problems, which they contended were due to the chemical vapors. ⁴ Plaintiff and his co-workers were tested. Plaintiff was diagnosed as having abnormal liver function. His physician restricted him from work as a bench chemist, and he was reassigned to work in a different place. Plaintiff told Dr. Bardana that the ventilation in the lab was faulty and inadequate, that the space was not initially built for use as a chemistry lab and that chemicals were stored in a defective refrigerator.

An investigation confirmed that the lab's ventilation system was defective, supervisory relationships within the lab were unclear, toxic substance use protocols had not been adopted and toxic substances were used outside of, and stored in, the ventilation hoods. A variety of short term solutions was immediately implemented. A clogged filter was removed from one of the hoods, the hoods were marked for proper sash opening, deflectors were put over the hood exhausts to direct them away from the lab's windows, the windows were caulked and the solvents and priority pollutants were removed from the lab. Later, EPA made other physical changes in the building.

Plaintiff filed a Workers' Compensation claim against EPA. ⁵ He also filed this ELA action against defendant, contending that defendant is his "indirect" employer under the ELA. At the close of his case, the trial court directed a verdict against plaintiff on the ground that he had failed to show the requisite control to subject defendant to liability under the ELA. The trial court found, inter alia, that EPA and defendant were working on a common enterprise, that their employees did the same work in the same place and that the employers' economic interests "were intertwined at least in the sense that [defendant] was to perform the work and being paid for performance of the work EPA wanted done." The court also found that defendant undertook to inspect the lab for the workers' safety and that plaintiff had complained to defendant about "the conditions and the environment of the lab." However, the court reasoned:

"[I]f an indirect employer undertakes to inspect the direct employer's premises to make sure that they are safe, that does not relieve the direct employer from that responsibility. [T]o impose liability against an indirect employer on that basis would be not promoting the very goals that are desired by the Employers Liability Act, and that is a safe place for the worker."

The court concluded:

"It seems to me that these * * * factors * * * either do not bear significantly on the issue of responsibility or control or they indicate to me very strongly that the direct employer is the person who has maintained that responsibility and control. So based on those findings and that reasoning, the Court is going to allow the motion for directed verdict."

Plaintiff contends that he presented sufficient evidence on the issue of defendant's control for the issue to be submitted to the jury. He argues that the chemicals were the instrumentality that created the risk to him. Defendant argues that plaintiff presented no evidence that it had the right to control or exercised any control over the lab's ventilation system or the refrigerator, which it contends were the instrumentalities that caused plaintiff's injuries.

ORS 654.010 provides:

"Every employer shall furnish employment and a place of employment which are safe and healthful for employes therein, and shall furnish and use such devices and safeguards, and shall adopt and use such practices, means, methods, operations and processes as are reasonably necessary to render such employment and place of employment safe and healthful, and shall do every other thing reasonably necessary to protect life, safety and health of such employes."

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

In Helms v. Halton Tractor, 66 Or.App. 890, 894, 676 P.2d 347 (1984), rev. den. 297 Or. 82, 679 P.2d 1367, we explained:

"Under the ELA, those 'having charge of the particular work,' ORS 654.315, owe to 'employes or the public,' ORS 654.305, a duty of providing not only a safe place to work but also a duty to provide safe tools and other protective measures. Thomas v. Foglio, 225 Or 540, 564, 358 P2d 1066 (1961). The act has repeatedly been construed 'to apply to...