Woodbury v. CH2M Hill, Inc.

• Decision Date: 24 January 2003
• Citation: 61 P.3d 918,335 Oregon 154,335 Or. 154
• Parties: E. Max WOODBURY II, Petitioner on Review, v. CH2M HILL, INC., a Florida corporation, Respondent on Review.
• Court: Oregon Supreme Court

61 P.3d 918

335 Or. 154

335 Oregon 154

E. Max WOODBURY II, Petitioner on Review, v. CH2M HILL, INC., a Florida corporation, Respondent on Review.

(CC 9706-04494; CA A103037; SC S48592).

Supreme Court of Oregon.

Argued and Submitted November 5, 2002.

Decided January 24, 2003.

James S. Coon, of Swanson, Thomas & Coon, Portland, argued the cause for petitioner on review. With him on the briefs was Kathryn H. Clarke, Portland.

M. Elizabeth Duncan, of Greene & Markley PC, Portland, argued the cause and filed the briefs for respondent on review.

Robert K. Udziela, Portland, filed briefs on behalf of amici curiae Oregon Trial Lawyers Association, Oregon AFL-CIO, and Oregon State Building Trades Council.

James E. Mountain, Jr., and Linda J. Kessel, Eugene, filed a brief on behalf of amici curiae Oregon-Columbia Chapter of the Associated General Contractors of America, Associated Oregon Industries, Inc., and American Council of Engineering Companies of Oregon.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, RIGGS, and DE MUNIZ, Justices.²

DE MUNIZ, J.

In this civil action, plaintiff sought recovery for personal injuries suffered in a fall from a construction platform. Although plaintiff worked for a subcontractor, he filed the action against the general contractor, CH2M Hill, Inc. (defendant), alleging liability under the Employer Liability Law (ELL), ORS 654.305 to 654.336,³ and common-law negligence. At trial, the jury returned a verdict for plaintiff on both theories of liability. Defendant appealed, and the Court of Appeals reversed the judgment on both claims. Woodbury v. CH2M Hill, Inc., 173 Or.App. 171, 21 P.3d 153 (2001). We reverse and remand for further proceedings.

The Court of Appeals described the relevant⁴ evidence as follows:

"Reynolds Metal Company (Reynolds) hired defendant to conduct an environmental remediation investigation at a Reynolds plant in Troutdale, Oregon. Defendant, in turn, hired several subcontractors to perform certain work at the site. Stratus Corporation (Stratus) was one of those subcontractors.

"Stratus was owned and operated by Scott Flaherty. It had no full-time employees and fulfilled its own employment needs by hiring temporary employees. One such `temporary' employee was plaintiff, who had worked exclusively for Stratus for over a year when he was hired to work on the Reynolds job.

"* * * * *

"Defendant hired Stratus, among other things, to construct a `vehicle decontamination pad' at the Reynolds site. This required Stratus to install a means of processing liquid waste from the decontamination pad. Defendant told Stratus to install a water pipe from the pad to a clarifier tank to accomplish the task. Defendant further told Stratus where to locate the pipe and what kind of materials to use. All of the Stratus work was performed by Flaherty and plaintiff.

"Most of the pipe was installed underground. In order to reach the clarifier tank, however, the last few feet of pipe had to be installed over a sunken stairway and corridor that ran approximately ten feet below ground level. Flaherty discussed with Griffin, one of defendant's employees, how to suspend the pipe over the stairway and corridor. They decided to construct a platform made of four-by-four and two-by-four boards and plywood. Later, Griffin recalled that the idea to construct the platform was Flaherty's. Flaherty could not remember how the decision was arrived at. Both agreed, however, that, once they decided to build the platform, the details of how to construct it were left to Flaherty. Plaintiff and Flaherty then built the platform without input from or oversight by any of defendant's employees.

"When the remediation work was complete, Stratus was required to dismantle the platform supporting the pipe to the clarifier tank. Because Flaherty was occupied with other work, plaintiff attempted to dismantle the platform by himself. No employee of defendant's assisted. Nor did any employee of defendant's provide instructions, offer advice, or provide oversight. While dismantling the platform, plaintiff wore no fall-protection harness. In the course of attempting to move one of the boards from the platform, he lost his balance and was seriously injured when he fell onto the subsurface corridor."

173 Or.App. at 173-75, 21 P.3d 153.

As noted, plaintiff filed an action against defendant alleging two claims. Under the ELL claim, plaintiff asserted that defendant had failed to install guardrails on the platform and to train plaintiff how to avoid the hazards of working in areas where there was a danger of falling. Under the common-law negligence claim, plaintiff alleged that defendant was negligent for failing to provide proper training and supervision for the disassembly of the platform.

At trial, defendant moved for a directed verdict on both claims. The trial court denied the motion and submitted the case to the jury. The jury returned a verdict for plaintiff on both claims and awarded economic and noneconomic damages.

The Court of Appeals reversed, concluding that plaintiff could not recover under either the ELL or negligence theories. The Court of Appeals concluded that there was no evidence that defendant had assumed any obligation to control or had exercised actual control over the method by which Stratus accomplished the work. 173 Or.App. at 179, 21 P.3d 153. That conclusion was sufficient, in the Court of Appeals' view, to defeat both claims.⁵

This court reviews the denial of a motion for directed verdict for any evidence to support the verdict in plaintiff's favor. See Bolt v. Influence, Inc., 333 Or. 572, 577-78, 43 P.3d 425 (2002) (describing standard). This court cannot set aside a jury's verdict unless there was no evidence from which the jury could have found the facts necessary to establish the elements of plaintiff's cause of action. See Or Const, Art VII (Amended), § 3 ("no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict"). Instead of weighing the evidence, this court must consider the evidence and inferences therefrom in the light most favorable to plaintiff. Brown v. J. C. Penney Co., 297 Or. 695, 705-06,688 P.2d 811 (1984). Because the jury weighed the evidence, judged the credibility of the witnesses, and resolved all conflicts in the evidence, this court may rely on any fact that finds support in the record. Id. at 705-06, 688 P.2d 811.

We begin with the ELL claim. The ELL imposes a heightened statutory standard of care on a person or entity who either is in charge of, or responsible for, any work involving risk or danger. Specifically, 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 that 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."

ELL liability can be imposed on a person or entity who (1) is engaged with the plaintiff's direct employer in a "common enterprise";⁶ (2) retains the right to control the manner or method in which the risk-producing activity was performed; or (3) actually controls the manner or method in which the risk producing activity is performed. See Wilson v. P.G.E. Company, 252 Or. 385, 391-92, 448 P.2d 562 (1968) (so stating).

The Court of Appeals concluded that plaintiff had failed to prove that defendant retained the right to control the manner or method in which the risk-producing activity was performed. 173 Or.App. at 182, 21 P.3d 153. That conclusion was based on the terms of the contract between defendant and Stratus. Id. In reaching it, the Court of Appeals held that under ORS 654.305, the scope of the work involving a risk or danger to the employees was solely the act of disassembling the platform. As we explain below, we need not reexamine the Court of Appeals' conclusion that the contract did not support a finding of a right to control, because our analysis rests on different grounds.

The Court of Appeals also concluded that plaintiff failed to prove that defendant had exercised actual control over plaintiff's work. Id. at 182, 21 P.3d 153. As discussed below, we conclude that the Court of Appeals erred in that holding, because it defined the work involving risk or danger too narrowly.⁷

The phrase "any work involving a risk or danger to the employees" presents the interpretive issue in this case. ORS 654.305. To determine the meaning of that statutory phrase "any work involving a risk or danger to the employees," we use the interpretive template that this court formulated in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). Under that framework, words of common usage are given their "plain, natural, and ordinary meaning." Id. at 611, 859 P.2d 1143. If, after our analysis at the first level, the intent is clear from the text and context, further analysis is unnecessary. Id.

The words "any work" are inclusive, suggesting that the reference is to the tasks in which the employee was engaged. The phrase "involving a risk or danger" modifies "any work." Thus, identifying the relevant scope of the work for purposes of the ELL requires an initial determination of whether the work involved a risk or danger to the employees or the public. "Risk" and "danger" are both words of common usage. Webster's Third New Int'l Dictionary 573 (unabridged ed 1993) indicates that "risk" and "danger" are synonyms for each other, as well as for "peril," "jeopardy," and "hazard." Webster's first modern definition of "danger" is "the state of being exposed to harm: liability to injury, pain or loss:...