Yeatts v. Polygon Nw. Co.

Decision Date14 July 2021
Docket NumberA167120
Citation313 Or.App. 220,496 P.3d 1060
Parties Arthur YEATTS and Nancy Doty, Inc., Special Fiduciary for Arthur Yeatts, Plaintiffs-Appellants, v. POLYGON NORTHWEST COMPANY, a foreign corporation, Defendant-Respondent.
CourtOregon Court of Appeals

J. Randolph Pickett, Portland, argued the cause for appellants. Also on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, Pickett Dummigan McCall LLP, Jeffery A. Bowersox, Bowersox Law Firm PC, Scott M. Supperstein, and Law Offices of Scott M. Supperstein, P. C.

Stephen P. Rickles, Portland, argued the cause for respondent. Also on the brief were Martin W. Jaqua, Bruce H. Cahn, Lane Powell, PC, Robert Spajic, and Bullivant Houser Bailey, PC.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.


Following a jury trial, plaintiff appeals from a judgment dismissing an action in which he alleged liability against defendant for personal injuries under the Employer Liability Law (ELL), ORS 654.305 to 654.336.1 Plaintiff assigns error to the trial court's refusal to instruct the jury that an employer's duty under the ELL is nondelegable.2 With that point, we agree.3 Defendant interposes six cross-assignments of error. We explore why plaintiff's instruction was appropriate, and we recap the cross-assignments, rejecting them. In the end, we reverse and remand for further proceedings.


We review a trial court's failure to give a requested jury instruction for errors of law, and we evaluate the evidence in the light most favorable to the establishment of the facts necessary to require the instruction. Ossanna v. Nike, Inc. , 365 Or. 196, 199, 445 P.3d 281 (2019). Accordingly, we recite the facts in the light most favorable to the giving of plaintiff's "nondelegable duty" instruction. See id.

In 2006, defendant, Polygon Northwest Company (Polygon), was the general contractor for a residential townhome development. Polygon signed a contract with plaintiff's employer, Wood Mechanix, LLC (Wood Mechanix), to finish the framing work of the townhomes.

Their contract consisted of three major sections. Relevant to our analysis, the first section, concerning the specific "Scope of Work," included a provision specifying 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 third section, titled "General Terms and Conditions," contained a section specifically addressing the safety requirements for the project. That section provided, in part:

"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] 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. * * *
"[Wood Mechanix] shall develop a site specific safety plan * * * that identifies all anticipated hazards that will most likely be encountered in all phases of the project and which identifies the specific means that will be used to address those hazards. The Safety Plan shall be submitted to [Polygon] prior to [Wood Mechanix] commencing work on the Project site or at any off-site location under the exclusive control of [Wood Mechanix]. * * * "[Wood Mechanix] shall submit to [Polygon], on a monthly basis, copies of all documentation maintained by [Wood Mechanix] pertaining to safety, weekly safety meeting minutes, implementation of its Safety Plan, as well as all documentation relating to [Wood Mechanix's] compliance with any other job site safety plans applicable to its work."

(Emphasis added.)

Polygon also kept a copy of its own site-specific Accident Prevention Plan at the construction site, although it was not part of the contract. That plan provided that all of Polygon's "superintendents will know and enforce Tanasbourne Place Townhomes LLC's safety standards for construction." The plan instructed the site superintendents to "inspect their construction sites daily for safety hazards and issue ‘Safety Hazard Observed’ notices to any subcontractor in violation." Polygon's plan provided that the fall protection device for working on higher floors was "guardrails." Polygon's plan indicated that the plans of Polygon's subcontractors would describe the assembly of such guardrails, stating:

"The proper procedure for assembly of fall arrest/restraint equipment will be found in the related * * * Subcontractor's Fall Protection Work Plan and according to manufacturer's recommended procedures."

At the preconstruction orientation meeting between Polygon's site superintendent and each subcontractor, Polygon provided a checklist that required a subcontractor's own fall protection plan to "identify all fall hazards"; "describe the method of fall arrest or fall restraint to be used for these hazards"; "describe the correct procedures for assembl[y], maintenance, inspection and disassembly of the fall protection system"; and required that the "[s]ubcontractor's fall protection equipment should be inspected routinely by a competent and qualified person."

Plaintiff was working for Wood Mechanix as a framer on the townhome project in 2006 when he fell from a third story platform and sustained serious injuries. According to plaintiff, he was working alone to frame an exterior third floor wall in preparation to raise and lift it into position. As he was kneeling to get up, he placed his left forearm on the middle rail of the guardrail system to push himself into a standing position. As he placed his weight on the post, the guardrail gave way and plaintiff fell to the concrete floor below.

Plaintiff brought this action against Polygon, alleging in two claims that Polygon was liable under common law negligence and the ELL. Plaintiff alleged that, although it was not defendant's direct employer, Polygon was liable under the ELL because Polygon "retained the right to control the manner and method in which construction operations were performed" by Wood Mechanix.

Polygon moved for summary judgment on both claims, arguing that it was not subject to the ELL because it had delegated the "means, methods, and maintenance of all fall protection" to Wood Mechanix and that the guardrails at issue were under the sole control of Wood Mechanix. The trial court granted Polygon's motion for summary judgment on both grounds, and plaintiff appealed.

The Supreme Court affirmed the trial court's dismissal of plaintiff's common law negligence claim but reversed dismissal of plaintiff's claim based on its ELL theory of liability. Yeatts v. Polygon Northwest Co. , 360 Or. 170, 197-98, 379 P.3d 445 (2016) ( Yeatts I ). The court focused on the text in the "General Terms and Conditions" of the contract requiring Wood Mechanix to abide by "any safety measures requested by [Polygon]" and allowing Polygon to "inspect the work site in its entirety, particularly in the absence of a contractual provision that placed sole responsibility for safety measures on Wood Mechanix." Id. at 192, 379 P.3d 445. Based on those contract provisions, the court held that there was "sufficient evidence that Polygon retained the right to control the risk-producing activity so as to preclude summary judgment in favor of Polygon with respect to that specification of plaintiff's ELL claim." Id.

On remand, plaintiff reasserted his ELL claim against Polygon, based on a retained right of control theory under ORS 654.305, which 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."

Plaintiff alleged in the ELL claim that defendant was negligent:

"a. In failing to require and utilize a guard rail [sic ] 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 inspect the place where plaintiff was required to work at a height;
"f. In failing to see that guardrails were maintained in a safe condition; [and]
"g. 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."

Plaintiff argued that Polygon had contractually retained a right to control the building and inspection of the guardrails based on the same contract provisions on which the Supreme Court relied above.

Polygon responded in two ways. First, Polygon argued that...

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