Steiner v. Beaver State Scaffolding Equipment Co.

• Decision Date: 12 July 1989
• Citation: 777 P.2d 965,97 Or.App. 453
• Parties: David A. STEINER, Respondent, v. BEAVER STATE SCAFFOLDING EQUIPMENT CO., Appellant, v. BOUWMAN TUBULAR SCAFFOLD COMPANY, INC., Third-Party Defendant. A8603-01295; CA A48107.
• Court: Oregon Court of Appeals

Page 965

777 P.2d 965

97 Or.App. 453

David A. STEINER, Respondent, v. BEAVER STATE SCAFFOLDING EQUIPMENT CO., Appellant, v. BOUWMAN TUBULAR SCAFFOLD COMPANY, INC., Third-Party Defendant.

A8603-01295; CA A48107.

Court of Appeals of Oregon.

Argued and Submitted Feb. 27, 1989.

Decided July 12, 1989.

Don G. Carter, Portland, argued the cause for appellant. With him on the briefs were Janice M. Stewart, Karen D. Randolph and McEwen, Gisvold, Rankin & Stewart, Portland.

Robert K. Udziela, Portland, argued the cause for respondent. On the brief were Raymond J. Conboy, Jeffrey S. Mutnick and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Before GRABER, P.J., and JOSEPH, C.J., and EDMONDS, J.

JOSEPH, Chief Judge.

Plaintiff's employer, E.J. Bartells Co., was hired to insulate and weatherize a large tank. Bartells contracted with Beaver State Scaffolding Equipment Co. (defendant) to erect a scaffold at the job site. Defendant installed the scaffold before the insulation work began and had no further involvement with the project until after Bartells had completed its work, when defendant's personnel returned to the site to dismantle the scaffold. Plaintiff was injured when he fell from the scaffold while performing the insulation work for Bartells. He brought this action against defendant, alleging negligence and a violation of the Employer Liability Act (ELA). ORS 654.305 et seq. The jury found for plaintiff on both claims but found him contributorily negligent and fixed his comparative fault at 49 percent on the negligence claim and 35 percent on the ELA claim. Therefore, the judgment reflected plaintiff's choice to have the damage award calculated in accordance with the verdict on the ELA claim. Defendant appeals from the resulting judgment. ¹

Defendant first contends that it was not on the job site while plaintiff was working and that it had no involvement in his job activity and no control over the scaffold when he was using it. Therefore, according to defendant, it cannot be liable under ELA and the trial court erred by denying defendant's motion for a directed verdict on ELA claim. ² The general issue raised by defendant's argument is when and whether ELA applies to a person, other than the injured worker's actual employer, who brings the injury-causing goods or equipment to the workplace. The specific question is whether a maker or supplier of unsafe equipment can be liable under ELA if it has no involvement with the work or control of the equipment or its use after installing and delivering it.

The leading Oregon case is Thomas v. Foglio, 225 Or. 540, 358 P.2d 1066 (1961). The plaintiff was injured while loading logs for his actual employer on a truck that the defendant owned and had brought onto the employer's premises. The court held that the defendant could be the plaintiff's "indirect employer" and liable to him under ELA. It first explained:

"It would seem clear that one who merely sells equipment which is intended for use and is used by workmen and who, after the sale, is not involved in the use to which the equipment is put, is not an employer under [ELA]. * * * At this point we simply wish to note that one who merely supplies equipment which is to be used in the course of plaintiff's employment is not an employer under the Employers' Liability Law [sic ]. This is also true where the equipment is leased rather than sold. [ELA] cannot apply unless in some sense the defendant has 'charge of' or is 'responsible for' the work out of which the injury arose." 225 Or. at 545, 358 P.2d 1066.

The court then said, however:

"The narrower question presented to us in the case at bar (assuming that defendant was not a lessor of the trucks[) ] is whether an employer can be regarded as 'having charge of' work where the component part of the general undertaking for which he is responsible does not involve any risk-creating activity on the part of his employee but does call for the use of equipment over which he has control and which, if not maintained with proper safeguards, necessarily exposes the employees of the other employer to an unreasonable risk in the course of carrying on the common enterprise. In a narrow sense, it could be said that in such a case the defendant employer does not have charge of work but has charge only of equipment. But the word 'work' in ORS 654.305 means more than the actual physical movement of the employees hired to perform a job; it means the entire enterprise with all of the component parts necessary to the completion of the enterprise in which both employers have joined to accomplish. Thus in the instant case the defendant had 'charge of' and was 'responsible for' that part of the job or 'work' which consisted of furnishing safe equipment to be used in a loading operation." 225 Or. at 549, 358 P.2d 1066. (Emphasis in original.)

The court then reiterated its first point:

"What we have said here does not mean that a manufacturer, vendor, or a similar supplier, including a lessor of equipment[,] is within [ELA]. The defendant must participate in the activity out of which the injury arose." 225 Or. at 550, 358 P.2d 1066.

As we indicated in Dingell v. Downing-Gilbert, Inc., 81 Or.App. 545, 550, 726 P.2d 937 (1986), rev. den. 302 Or. 614, 733 P.2d 449 (1987), Thomas v. Foglio, supra, draws a less than bright line between manufacturers and suppliers who are subject to ELA liability and those who are not. Some language in the opinion clearly suggests that the mere introduction of unsafe equipment to the work site is not enough to permit ELA to be invoked against the manufacturer or supplier; other language suggests that bringing equipment to the site, per se, vests the supplier with ELA responsibility for its safety.

The quoted language from Thomas v. Foglio, supra, does not expressly resolve whether the applicability of ELA depends--at a minimum--on the provider having continuing control over the equipment after introducing it to the workplace. However, Thomas does suggest that the answer is yes, by saying that the defendant's ELA responsibility arose from the employes' "use of equipment over which [the defendant] has control and which, if not maintained with proper safeguard, necessarily exposes the employees of the other employer to an unreasonable risk." See also Sacher v. Bohemia, Inc., 302 Or. 477, 486, 731 P.2d 434 (1987).

It would make little sense for ELA to be applicable to a manufacturer or provider who does not retain any control over the equipment or its use. Although the word "employer" hardly carries its traditional and usual connotation in the ELA context, the overriding purpose of the statute is to require that actual employers assure job safety. See Wilson v. P.G.E. Company, 252 Or. 385, 448 P.2d 562 (1968). Although ELA also applies to those whom the courts have denominated "indirect employers," it has no logical application and has not been judicially applied to persons who have no nexus with either the employes' work activity or their work-related use of goods or equipment. The law of negligence and strict products liability, rather than ELA, provides the appropriate recourse against manufacturers and suppliers who furnish unsafe equipment but retain no control over or connection with it or its use. See Parks v. Edward Hines Lbr. Co. et al., 231 Or. 334, 339, 372 P.2d 978 (1962); Dingell v. Downing-Gilbert, Inc., supra, 81 Or.App. at 551-52, 726 P.2d 937.

Plaintiff argues that, even given a requirement of ongoing control, there was evidence here that defendant retained enough control over the scaffold to be subject to ELA. Plaintiff points to testimony that defendant would have been responsible for modifications, maintenance or repairs of the scaffold, if any had been necessary during the course of the insulation work. That evidence has no tendency to show that defendant in fact had control. Defendant was never at the job site during the course of the insulation work and was not expected or required to be there. Any duty that it might have had to perform maintenance or repairs could have only arisen at plaintiff's employer's request and could not amount to the kind of ongoing control of or responsibility for the equipment necessary to give rise to ELA liability. The trial court erred by denying defendant's motion for a directed verdict on the ELA claim.

Four of defendant's assignments of error pertain to the negligence claim. ³ The scaffold had a built-in access frame, which could be used for climbing, instead of a separate ladder. Plaintiff alleged, inter alia, that defendant negligently constructed the frame with rungs separated by unequal distances and that defendant thereby violated applicable federal and state safety regulations. At trial, plaintiff argued that the regulatory requirement that ladders have a uniform 12-inch distance between rungs...