Yeatts v. Polygon Nw. Co.

• Decision Date: 04 August 2016
• Docket Number: CA A150199,CC CV08020124,SC S062977
• Citation: 379 P.3d 445,360 Or. 170
• Parties: Arthur Yeatts; and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Petitioners on Review, and Matthew Whitman, Plaintiff, v. Polygon Northwest Company, a foreign corporation, Respondent on Review.
• Court: Oregon Supreme Court

360 Or. 170
379 P.3d 445

Arthur Yeatts; and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Petitioners on Review,
and
Matthew Whitman, Plaintiff,
v.
Polygon Northwest Company, a foreign corporation, Respondent on Review.

CC CV08020124
CA A150199
SC S062977

Supreme Court of Oregon.

Argued and submitted November 9, 2015.
August 4, 2016

J. Randolph Pickett, Pickett Dummigan LLP, Portland, argued the cause for petitioners on review. Jeffrey A. Bowersox, Bowersox Law Firm PC, Portland, filed the brief for petitioners on review. With him on the brief were J. Randolph Pickett, R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, Pickett Dummigan LLP, Portland, and Scott M. Supperstein, Law Office of Scott Supperstein, P.C., Portland.

Bruce H. Cahn, Ball Janik LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Amy Heverly.

W. Eugene Hallman, Pendleton, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, Kistler, Walters, Landau, Baldwin, and Brewer, Justices.^**

BREWER, J.

360 Or. 172

Plaintiff, the direct employee of a subcontractor working on a construction jobsite, fell while framing the third floor of a townhome that was under construction. In this action, plaintiff brought claims for relief against the general contractor under Oregon's Employer Liability Law (ELL), ORS 654.305 to 654.336, and for common-law negligence, in which he sought damages for injuries that he suffered in the fall.

The trial court granted summary judgment in favor of the general contractor, Polygon Northwest Company (Polygon), on both of plaintiff's claims, after concluding that there were no genuine issues of material fact and that Polygon was entitled to prevail as a matter of law. On appeal, the Court of Appeals affirmed. Yeatts v. Polygon Northwest Co. , 268 Or.App. 256, 341 P.3d 864 (2014). On review, we conclude that plaintiff presented sufficient evidence to withstand a motion for summary judgment on the specification of his ELL claim that Polygon retained a right to control the method or manner in which the risk-producing activity was performed. Accordingly, we reverse the Court of Appeals decision affirming the dismissal of the retained right of control specification of plaintiff's ELL claim, reverse the trial court's judgment regarding that specification, and remand that claim to the trial court for further proceedings. We affirm the decisions of the Court of Appeals and the trial court with respect to plaintiff's negligence claim and the remaining specifications of his ELL claim.

379 P.3d 448

I. STANDARD OF REVIEW

When reviewing a trial court's grant of summary judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party. Jones v. General Motors Corp. , 325 Or. 404, 420, 939 P.2d 608 (1997). We therefore view the facts in the summary judgment record in the light most favorable to plaintiff.

II. FACTS

Polygon was the general contractor for a residential townhome development project. On behalf of the developer,

360 Or. 173

Polygon signed a contract with plaintiff's employer, Wood Mechanix, LLC (Wood Mechanix) to perform framing work on the project.¹ The contract contained numerous provisions that addressed the relationship between Wood Mechanix and Polygon. Under the heading of general terms and conditions, the contract provided that Wood Mechanix “has the status of an employer” for unemployment compensation and social security purposes. The contract required Wood Mechanix, at its own expense, to procure and maintain general liability insurance coverage and Oregon Worker's Compensation insurance for accidental bodily injury on the worksite. The contract further required Wood Mechanix to name Polygon as an additional insured under its liability insurance policy and to procure liability insurance coverage that would provide that,

“[t]o the fullest extent permitted by law, the insurer shall defend and indemnify [Polygon] for all claims and suits arising out of, related to, or connected with [Wood Mechanix's] performance of the work, regardless of whether said claim or suit alleges, or any other entity contends, that [Polygon] was independently or concurrently negligent. Said defense and indemnity obligations shall arise specifically but not exclusively, with respect to any claim or suit arising out of circumstances where any employee or agent of [Wood Mechanix] suffers personal injuries during the performance of the work by [Wood Mechanix] or [Polygon].”

The contract also contained specific provisions that addressed safety requirements for work on the project. In particular, the contract provided:

“4.3 Safety Requirements.

“[Polygon] is committed to maintaining a safe work place. [Wood Mechanix] agrees to take necessary safety and other precautions, at all times, to prepare for and perform the work in a safe manner and to protect persons from illness or injury and property from damage arising out of the performance of the work. [Wood Mechanix] agrees and is responsible to ensure that all sub-tier subcontractors and suppliers adhere to the requirements of this [provision].

360 Or. 174

“[Wood Mechanix] shall take all necessary safety precautions pertaining to its work and the conduct thereof, including but not limited to, compliance with all applicable laws, ordinances, rules[,] regulations and orders issued by a public authority, whether federal, state, local or other, the federal Occupational Safety and Health Act, the Oregon Safe Employment Act, and any safety measures requested by [Polygon]. [Wood Mechanix] shall, at all times, be responsible for providing a safe work site and be responsible for the safety of all personnel, equipment, and materials within [Wood Mechanix's] care, custody or control. [Wood Mechanix] shall promptly provide [Polygon] with written notice of any safety hazard or violation found anywhere on or adjacent to the construction site.”

The contract further provided that, “[t]o the fullest extent permitted by law, [Wood Mechanix] agrees to defend, indemnify and hold [Polygon] harmless from all OSHA claims, demands, proceedings, violations, penalties, assessments, or fines that arise out of or relate to [Wood Mechanix's] failure to comply with any safety related laws, ordinances, rules, regulations, orders, or its obligations hereunder.” In addition, the contract

379 P.3d 449

contained an exhibit that addressed specific scope of work requirements for the framing work that Wood Mechanix was to perform. The contract provided that “[Wood Mechanix] is required to promptly and diligently provide temporary railings, braces and fall protection as may be required by the ongoing framing of the buildings [p]er OSHA requirements.” The contract also required Wood Mechanix's owner to attend a meeting with Polygon's superintendent before beginning work on the project.

Also as a term of the contract, Wood Mechanix was required to develop a site-specific safety plan that identified the anticipated hazards of the framing work and the specific means that Wood Mechanix would use to address those hazards. Although the summary judgment record does not include the plan developed by Wood Mechanix, it does contain a checklist completed by Trytko, the owner of Wood Mechanix. On the checklist, Trytko confirmed that Wood Mechanix had provided its “Fall Protection Program” to Polygon and had “Fall Protection Work Plan” forms

360 Or. 175

available for each building on which it would work. Trytko confirmed that the plan:

“—Identif[ied] all fall hazards[.]

“—Describe[d] the method of fall arrest or fall restraint to be used for these hazards[.]

“—Describe[d] the correct procedures for assembly, maintenance, inspection and disassembly of the fall protection system[.]”

In his deposition testimony, Trytko stated that Wood Mechanix's employees were trained and instructed in the fall protection plan and that Wood Mechanix had a “competent and qualified person” inspect the fall-protection equipment daily. He also testified that Wood Mechanix alone made the decision to use guardrails as the form of fall protection for framing work on the project.

While the contract between Polygon and Wood Mechanix explicitly called for Wood Mechanix to assemble, maintain, and inspect the fall protection system, Polygon also established its own site-specific Accident Prevention Plan. Among other provisions, Polygon's plan provided that the fall protection restraint for second-floor and higher floors should be guardrails. That plan placed primary responsibility for assembly, maintenance and inspection of the fall protection system on its subcontractors, including Wood Mechanix. The plan stated:

“Procedures for Assembly

“The proper procedure for assembly of fall arrest/restraint equipment will be found in the related TANASBOURNE PLACE TOWNHOMES L.L.C Subcontractor's Fall Protection Work Plan and according to manufacturer's recommended

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