308 P.3d 257
Or. Ct. App.2013Background
- Plaintiff (plumber, employee of Randy’s Plumbing) fell ~9 feet through an unprotected second-floor hallway while performing plumbing work in a house under construction and was injured.
- Jones (owner-builder) contracted with plaintiff’s employer to perform plumbing; Jones hired framers (Rossetto and Brown) to do framing and assumed framers would install fall protection, but no discussion occurred and Jones was not on site at the time.
- Rossetto and Brown (framing subcontractors) had experience with fall protection; Brown testified he likely measured the drop and thought it was <10 ft so did not install protection.
- Plaintiff’s expert opined that framers (not plumbers) have the industry responsibility to provide fall protection; plaintiff submitted applicable OAR/ANSI rules requiring fall protection in the area.
- Trial court granted summary judgment for all defendants based on the Yowell “specialized expertise and knowledge” doctrine and ruled ELL (Employer Liability Law) did not apply; the Court of Appeals reverses and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yowell bars common-law negligence and premises-liability claims | Yowell does not apply; ordinary foreseeability (Fazzolari) and landowner-invitee duties govern | Yowell precludes liability because plaintiff’s risk was tied to the subcontractor’s specialized task | Reversed; genuine factual dispute whether the fall risk was "inextricably intertwined" with plaintiff's employer’s specialized task, so Yowell not a basis for summary judgment |
| Whether Jones owed landowner/invitee duty despite Yowell | Landowner duty to make premises reasonably safe/warn applies; Yowell should not displace the invitee relationship | Yowell creates a special relationship limiting duty to subcontractor employees | Reversed as to summary judgment; factual issue remains whether Yowell displaces landowner-invitee duty here |
| Whether ELL applies via right to control or actual control over risk-producing activity | Plaintiff: the risk-producing activity (walking along unprotected hallway) was part of plumbing work; defendants controlled site conditions and thus retained/right to control or actually controlled the risk | Defendants: they did not retain/control plumbing methods or safety decisions for plaintiff’s work | Reversed as to summary judgment; under Woodbury the scope of the risk-producing work includes the walk and disputed facts remain whether defendants had or exercised control |
| Whether defendants were engaged in a common enterprise with plaintiff’s employer under ELL | Plaintiff alleged common enterprise; alternatively reliance on control theories | Defendants disputed common enterprise and control | Court did not decide common-enterprise theory (reversal based on factual disputes as to control/right to control) |
Key Cases Cited
- Yowell v. General Tire & Rubber, 260 Or. 319 (court creates "specialized expertise and knowledge" rule limiting duty of a landowner/contractor to employees of a specialized subcontractor)
- Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1 (general foreseeability governs negligence absent a special status/relationship)
- George v. Myers, 169 Or. App. 472 (applies Yowell where an obvious risk is inextricably intertwined with specialized subcontractor task)
- Boothby v. D. R. Johnson Lumber Co., 184 Or. App. 138 (extends Yowell where the risk is tied to the hired party’s specialized operations); Boothby v. D. R. Johnson Lumber Co., 341 Or. 35 (affirming principle)
- Brown v. Boise-Cascade Corp., 150 Or. App. 391 (discusses Yowell in context of obvious hazards and subcontractor expertise)
- Woodbury v. CH2M Hill, Inc., 335 Or. 154 (defines scope of "work involving a risk or danger" under the ELL and explains control/right-to-control analysis)
- Hughes v. Wilson, 345 Or. 491 (landowner duty to invitees)
- Sacher v. Bohemia, Inc., 302 Or. 477 (ELL protects non-direct employees exposed to hazards of others)