Yeatts v. Polygon Nw. Co., CV08020124

CourtCourt of Appeals of Oregon
Writing for the CourtNAKAMOTO, J.
Citation268 Or.App. 256,341 P.3d 864
PartiesArthur YEATTS; and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Plaintiffs–Appellants, and MATTHEW WHITMAN, Plaintiff, v. POLYGON NORTHWEST COMPANY, a foreign corporation, Defendant–Respondent.
Docket NumberCV08020124,A150199.
Decision Date31 December 2014

268 Or.App. 256
341 P.3d 864

Arthur YEATTS; and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Plaintiffs–Appellants
POLYGON NORTHWEST COMPANY, a foreign corporation, Defendant–Respondent.


Court of Appeals of Oregon.

Argued and Submitted July 11, 2013.
Decided Dec. 31, 2014.

341 P.3d 867

Robert K. Udziela argued the cause for appellants. With him on the opening brief were J. Randolph Pickett, R. Brendan Dummigan, Kimberly O. Pickett, and Pickett Dummigan LLP, and Scott M. Supperstein and Law Office of Scott Supperstein, P.C., and Jeffrey A. Bowersox and Bowersox Law Firm P.C. With him on the reply brief were Jeffrey A. Bowersox and Bowersox Law Firm P.C., and J. Randolph Pickett, R. Brendan Dummigan, and Pickett Dummigan LLP, and Scott M. Supperstein and Law Office of Scott Supperstein, P.C.

Bruce H. Cahn argued the cause for respondent. With him on the brief were Aaron D. Goldstein and Ball Janik LLP.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.



268 Or.App. 258

In this personal injury case, plaintiff1 appeals a general judgment in favor of defendant, Polygon Northwest Company (Polygon), assigning error to the trial court's grant of summary judgment in favor of Polygon on plaintiff's claims for relief under Oregon's Employer Liability Law (ELL), ORS 654.305 to 654.336, and for common-law negligence. The trial court entered judgment for Polygon based on its conclusion that there were no genuine issues as to any material facts and that Polygon was entitled to prevail as a matter of law. On appeal, plaintiff contends that he presented sufficient evidence to create genuine issues of material fact on both of his claims and, as a result, that summary judgment was not appropriate. We affirm.


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, in this case, plaintiff. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). When viewed in the light most favorable to plaintiff, the record establishes the following facts.

Polygon was the general contractor for a residential townhouse development project. In 2005, Polygon, on behalf of the developer, signed a contract with plaintiff's employer, Wood Mechanix, LLC (Wood Mechanix) to perform framing work on the project. The contract provided that Wood Mechanix “shall, at all times, be responsible for providing a safe work site and be responsible for the safety” of its employees and equipment. As part 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 it would use to address those hazards.

268 Or.App. 259

Wood Mechanix was required to submit its safety plan to Polygon before beginning work on the project.2

The contract required Wood Mechanix's owner, Stan Trytko, to attend a meeting with Polygon's superintendent before beginning work on the project. At that meeting, Trytko completed a checklist entitled “Subcontractor Precon Safety Orientation” that required him to answer “yes,” “no,” or “N/A” to a number of questions related to Wood Mechanix's safety plan for the project. On the form, Trytko confirmed that Wood Mechanix had provided its “Fall Protection Program” to Polygon and had “Fall Protection Work Plan” forms available for each building on which it would work. Trytko also confirmed that the plan:

341 P.3d 868
“• 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[.]”

Trytko verified that Wood Mechanix's employees were trained and instructed in the above items and that Wood Mechanix would have a “competent and qualified person” inspect the fall-protection equipment daily. Wood Mechanix decided to use guardrails as its form of fall protection on the project.

Polygon prepared a site-specific, internal safety manual on behalf of the developer for use by Polygon's employees. Within the Polygon safety manual, there is a “Fall Protection Plan.” On one page of that plan, there is a list of various work-site conditions or tasks, such as “Painting”

268 Or.App. 260

or “Stair openings,” and a corresponding “Restraint.” For example, the plan provides, in part:

“1. High foundation/retaining walls.
Restraint: guardrails [.]
“2. Ladders (any type), interior or exterior.
Restraint: secure ladders to structure, insuring stability.
“3. Second floor decks.
Restraint: guardrails [.]”

(Emphasis in original.) Under that list, a section labeled “Procedures for Assembly” provides that the “proper procedure for assembly of fall arrest/restraint equipment will be found in the related” subcontractor's fall-protection plan and according to the manufacturer's recommended procedures. Another part of the Polygon manual states that its construction superintendents “[w]ill know and enforce” its fall-protection plan. Polygon did not provide the internal safety manual to Wood Mechanix.3

Polygon's role on the project was to manage the construction of the townhouses, which included managing the site, budget, schedule, and general safety of the project. Polygon's employees were at the site every day, and its superintendents would perform daily site walks. If they saw a safety violation, such as a worker without a hard hat or a missing guardrail, Polygon's superintendents would direct the person to stop the dangerous activity or tell the subcontractor to fix the problem. In addition, and pursuant to the contract, Polygon held weekly meetings with subcontractors on the project. Brennan Taylor, one of Polygon's superintendents, testified that the purpose of those weekly meetings was to “[g]o over a schedule, any issues amongst * * * the

268 Or.App. 261

plans and * * * on different subcontractors. If somebody was caught without a hard hat, it would be brought up, ‘You must wear your hard hat, must’—but it was more—it was scheduling and day-to-day activities.” Wood Mechanix held a separate safety meeting for its employees each week.

In 2006, plaintiff was working for Wood Mechanix as a framer on the project when he fell from the third floor of one of the buildings and was injured. Earlier that day, a Polygon employee had told plaintiff to put his hard hat on and to “go up there and finish something,” in reference to the building. Plaintiff went to the third floor of the building and began framing an exterior wall. Plaintiff finished placing sheetrock on a section of the wall that was going to be raised and attached, and he was kneeling down, facing a guardrail. In an effort to push himself up to a standing position, plaintiff leaned against the guardrail, and it gave way, causing him to fall 19 feet to the concrete surface below. At the time of his fall, there were no Polygon employees on the third floor of the building.

341 P.3d 869

Following his injury, plaintiff filed this action against Polygon, alleging that it was liable under the ELL as his “indirect employer” and was liable for common-law negligence. Specifically, plaintiff alleged in his ELL claim that Polygon was negligent and liable for numerous failures:

“a. In failing to require and utilize a guardrail system that was effective in preventing falls;
“b. In failing to have a guardrail system that was effectively anchored on both ends;
“c. In failing to have a guardrail system that could withstand 200 pounds of pressure;
“d. In failing to warn plaintiff that he was working in an area where the guardrail system was inadequate;
“e. In failing to use every device, care and precaution that was practicable to use for the protection and safety of life and limb, in violation of Oregon's Employer Liability Law pursuant to ORS 654.305.”

In his negligence claim, plaintiff alleged that Polygon “was negligent in failing to adequately control and supervise the work” for the same reasons.

268 Or.App. 262

Polygon moved for summary judgment on both of those claims, arguing that (1) it was not subject to the ELL because it did not control the guardrails and (2) it was not liable in negligence...

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