Aliсe J. GOLIK, individually and as personal representative of the Estate of Robert J. Golik, Plaintiff-Appellant Cross-Respondent, v. CBS CORPORATION, fka Viacom, Inc., a Delaware corporation, sued as successor by merger with CBS Corporation, fka Westinghouse Electric Corporation, et al.; Weyerhaeuser Company, a Washington corporation; and Longview Fibre Paper and Packaging, Inc., a Washington corporation, Defendants, and GEORGIA-PACIFIC CONSUMERS PRODUCTS (CAMAS), LLC, a Washington corporation, sued individually and as successor-in-interest to Crown Zellerbach Corp., Defendant-Respondent Cross-Appellant.
Multnomah County Circuit Court 130811192; A160322
Court of Appeals of Oregon
August 26, 2020
306 Or App 202 | 472 P3d 778
Argued and submitted March 22, 2018, affirmed on appeal and cross-appeal
In this civil case, a jury found Georgia Pacific Consumer Products (Camas), LLC, as successor to Crown Zellerbach
Affirmed on appeal and cross-appeal.
Karin Johana Immergut, Judge. (Order-May 28, 2015; Judgment-June 30, 2015; Order-August 14, 2015)
Nan G. Waller, Judge. (Order-August 26, 2015)
Kathryn H. Clarke argued the cause and filed the reply brief for appellant-cross-respondent. Also on the opening brief was R. Walker Humphrey II, Texas.
R. Daniel Lindahl argued the cause for respondent-cross-appellant Weyerhaeuser Company. Also on the briefs were Bullivant Houser Bailey PC, and Joshua J. Metcalf, Nick C. Giallourakis, and Forman Watkins & Kurtz LLP, Mississippi.
Susan Marmaduke argued the cause for respondent-cross-appellant Georgia-Pacific Consumer Products (Camas), LLC. Also on the briefs were J. Aaron Landau and Harrang Long Gary Rudnick P.C.
J. Michael Mattingly, Kevin Clonts, and Rizzo Mattingly Bosworth PC filed the briefs for respondent-cross-appellant Longview Fibre Paper and Packaging, Inc.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
JAMES, J.
Affirmed on appeal and cross-appeal.
JAMES, J.
In this civil case, a jury found defendant Georgia Pacific Consumer Products (Camas), LLC, as successor to Crown Zellerbach Corp., owner of a paper mill in Camas, Washington, liable for Robert Golik‘s death from mesothelioma.1 The trial court entered a general judgment in favor of Golik‘s wife, on her own behalf and as personal representative of Golik‘s estate, and their children, as beneficiaries of the estate. After trial, defendant received, for the first time, certain documents that it had requested during discovery, which provided detail regarding some of Golik‘s other exposures to asbestos. Based on one of the newly obtained documents, the trial court entered an order granting defendant‘s motion for a new trial on the grounds of misconduct,
Plaintiff appeals the new-trial order and the order vacating the judgment, contending that the court erred in granting a new trial under both
We begin by considering plaintiff‘s appeal. As explained below, we conclude that the court did not err in ordering a new trial based on misconduct,
Turning to defendant‘s cross-appeal, we reject defendant‘s contention that the trial court erred in denying its JNOV motion on either of plaintiff‘s claims. As noted above, 306 Or App at 204 n 2, we do not address defendant‘s assignments
PLAINTIFF‘S APPEAL
We begin by summarizing the evidence presented at trial and the procedural history necessary to evaluate the court‘s ruling on the new trial motion. Further below, we provide additional facts as they become necessary for our analysis of other issues.
At trial, the parties agreed that Golik died from mesothelioma caused by exposure to asbestos. Plaintiff presented evidence that Golik had worked as an insulator helper at defendant‘s mill for a few weeks during 1965. Golik was not directly employed by the mill; rather, he was an employee of Armstrong Contracting and Supply Corporation (AC&S), which applied asbestos insulation at the mill during that time. Plaintiff‘s expert, Dr. Brodkin, testified that Golik‘s work as an insulator helper at the mill would have exposed him to “very intense levels” of airborne asbestos fibers for the duration of his work at the mill and that the type of insulation that he was applying—insulation for high-temperature applications—would involve exposure to amphibole fibers, which are “the most dangerous” type of asbestos.
Plaintiff presented evidence that defendant knew or should have known that the insulating work that AC&S and its workers did would necessarily create large amounts of airborne asbestos on defendant‘s premises and knew or should have known that asbestos was dangerous to human health, but that it did nothing to protect Golik from the danger. Brodkin opined that, because mesothelioma is a dose-response disease—the risk of developing it increases with each increment of exposure to asbestos—Golik‘s expоsure to asbestos at defendant‘s mill was a substantial contributing factor in causing his death.
The court determined that Washington law governed plaintiff‘s claims. As relevant here, plaintiff alleged two claims: First, she alleged that, pursuant to the Restatement (Second) of Torts sections 343 and 343A, which Washington courts have adopted, defendant owed Golik a duty of care as a landowner, because Golik was a business invitee on its premises. Second, she alleged a negligence claim. On that claim, she raised alternative theories as to defendant‘s duty to Golik: First, she contended that defendant owed Golik a duty of care because it retained control over the work he performed, even though he was an employee of AC&S rather than an employee of defendant. Second, plaintiff contended that defendant owed Golik a statutory duty of care under former
Before the jury, defendant argued against liability in several ways. First, it questioned the evidence that Golik had actually worked at the mill. Second, it contended that it owed no duty to Golik because he was not its employee and, it argued, it had not retained sufficient control over his work or the work of AC&S to justify imposition of liability on any of plaintiff‘s legal theories. Third, it contended that any exposure at its mill was not a substantial contributing factor in causing Golik‘s illness because it was insignificant compared to Golik‘s other exposures to asbestos throughout his 20-year career.
That third strategy—a focus on Golik‘s other exposures to asbestos throughout his career—is the relevant one for our review of the new-trial order. Because Golik died before the litigation began, defendant could not question him about his exposures to asbestos. To show other exposures, defendant introduced Golik‘s medical records, in which he had reported, without much detail, exposure to asbestos from installing insulation; from his work in the military; while he was working in shipyards, both as an electrician and while he worked dismantling ships; and while he was in the merchant marine. It also introduced his social security records, which showed his employers over the course of his career but did not identify any exposure to asbestos. Finally, over plaintiff‘s vigorous objections, it introduced official records of Golik‘s
Golik‘s other exposures to asbestos were explained in more detail in documents that he and plaintiff had submitted in support of numerous claims they made to various asbestos bankruptcy trusts. To make a claim to an asbestos bankruptcy trust, the claimant generally submits a trust-specific claim form and also submits documentation of the facts supporting the claim. The supporting documents often contain more detailed information than the claim form alone.
During discovery, one of the defendants requested the claim forms, suppоrting documents, and any information that Golik and plaintiff had submitted to the bankruptcy trusts. Plaintiff produced the claim forms that were submitted to the trusts. She also produced what the parties referred to as the comprehensive work-history affidavit, which had been submitted to some of the trusts in support of the claims. In that work-history affidavit, Golik summarized his asbestos-related work history and detailed several of his exposures to asbestos. In the work-history affidavit, in addition to attesting to many other exposures, Golik stated that he had worked, and been exposed to asbestos, on various defendants’ premises, including at defendant‘s mill.
Regarding Golik‘s work in the merchant marine, the work-history affidavit stated the following:
“8. I was a Merchant Marine from 1968 to 1969. I worked as a wiper in the engine room of three ships. I was aboard the Santa Victoria for 9 months, the SS Philippine Bear for 5 months, and I was aboard a WWII-era ship which transported ammunition from San Francisco to Vietnam for 4 months.
“9. During my career as a Merchant Marine I worked on ships and in various shipyards as part of my duties. I worked at, but not limited to, the following shipyards each for a period of more than one month: Alameda Naval Shipyard, Alameda, CA and Mare Island Naval Shipyard (Hunter‘s Point), San Francisco, CA.
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“13. During my total working career as an Insulator Helper, Marine Electrician Helper, Merchant Marine and Welder I installed, altered, repaired or otherwise worked with, but not limited to the asbestos-containing products described in Paragraphs 4 [(regarding his work as an insulator helper)], 6 [(regarding his work as a marine electrician helper)], 10 [(regarding his work as а welder in Vancouver, Washington)], and 12 [(more regarding his work as a welder in Vancouver, Washington)] above for a substantial part of the workday for a total of at least five years altogether.”
Thus, the work-history affidavit is ambiguous with respect to Golik‘s work aboard ships in the merchant marine. He states that he worked as an engine room wiper aboard three ships and includes his work in the merchant marine in paragraph 13, which provides a broad description of his exposure to asbestos. However, the affidavit provides no specific information about exposure to asbestos during his time aboard ships. Instead, the affidavit suggests an inference that he was exposed to asbestos in the merchant marine while he worked “on ships at various shipyards.”
Numerous discussions on the record before and during trial demonstrate that information about Golik‘s other exposures to asbestos was of great interest to all parties. The most detailed information about Golik‘s other exposures that defendant had was in the work-history affidavit, and defendant wanted to use it as evidence of those other exposures. For her part, plaintiff very strongly desired to use the work-history affidavit as evidence that Golik worked at defendant‘s premises and was exposed to asbestos there. Plaintiff could not introduce the affidavit because, as to her, it was hearsay.
Because of the likelihood that plaintiff would be able to use the affidavit to show exposure on defendant‘s premises, defendant did not introduce the work-history affidavit.4 However, the absence of detailed information about Golik‘s other exposures to asbestos hampered its efforts to argue that Golik‘s other exposures rendered any exposure at its mill insignificant.
In the absence of the work-history affidavit, the evidence that was available lacked the level of detail necessary for defendant to show that much of Golik‘s other work—in particular, his work aboard ships in the merchant marine—exposed him to asbestos in any significant way. In response to cross-examination questions from Longview Fibre‘s counsel, plaintiff‘s expert, Brodkin, testified that Golik‘s “sporadic” work in shipyards for six months was an identified exposure that would have been a substantial factor in causing his mesothelioma. The same was true regarding three months of work that Golik did on ships in shipyards—not aboard ships at sea—while he was in the merchant marine. However, with respect to Golik‘s exposure while he was aboard ships at sea in the merchant marine as a wiper, plaintiff‘s expert, Brodkin, testified that Golik‘s “work as a wiper per se was not a[n] identified exposure. Again, these are merchant marines operating a vessel. He wouldn‘t have disrupted insulation during operations of a vessel.” Defendant had no contradictory information.
Likewise, the testimony of defendant‘s expert, Robert Adams, about Golik‘s alternative exposures was limited by a lack of detail about those other exposures. Regarding Golik‘s potential exposure as a welder helper and later a welder at shipyards in the 1960s, Adams testified that he could have had some exposure, but the exposure level varied dramatically “depending on the type of work and where the work was being conducted,” which was information that he did not have. Adams reiterated the uncertainty when he was asked to opine on whether that exposure increased Golik‘s risk of mesothelioma: “The difficulty in this case is that, based on the information that I have, it‘s hard to know exactly whether those exposure levels were high enough to represent an increased risk.”
The jury was not persuaded by any of defendant‘s arguments, and it returned a verdict for plaintiff on both of her claims. On the negligence claim, the jury accepted both of plaintiff‘s theories as to why defendant owed Golik a duty of care.
After trial, defendant requested a hearing at which the court would decide whether plaintiff‘s previous settlements with the bankruptcy trusts had been reasonable. Under Washington law, once the court made that determination, it would reduce the verdict by the amount of the previous settlements.
To prepare for that hearing, defendant sought additional information about those settlements, and it ultimately asked the court to order plaintiff to allow it to request documents directly from the bankruptcy trusts. The court agreed.
When defendant received the documents from the bankruptcy trusts, it discovered that, during pretrial discovery, plaintiff had not turned over to defendant all the documents describing Golik‘s other exposures to asbestos that had been submitted to the trusts. Among the undisclosed documents was an affidavit in which Golik described his work in the merchant marine. In that affidavit,
“I was a U.S. Merchant Marine from 1968 to 1969. During this time period, I worked as a wiper in the engine room of three ships. I was aboard the Santa Victoria for 9 months, the SS Philippine Bear for 5 months, and I was aboard a WWII-era ship which transported ammunition from San Francisco to Vietnam for 4 months.”
Then, unlike in the work-history affidavit, he proceeded to describe in detail his exposure to asbestos as a wiper aboard the Philippine Bear:
“As a wiper aboard the SS Philippine Bear, my duties included, but were not limited to, cleaning, operating, repairing and maintaining engines, boilers, generators, pumps, pipes, gaskets, and turbines. I was regularly exposed on a daily basis to asbestos and asbestos-containing materials including, but not limited to pipe insulation, boilers, pumps, gaskets, generators, and other refractory products and breathed air containing particles of dust arising from such materials.”
Moreover, unlike the work-history affidavit, the merchant marine affidavit did not mention any of the defendants’ premises.5
After defendant received the documents, it moved for a new trial under
Plaintiff appeals. Because it is dispositive, we consider only the correctness of the court‘s ruling under
“A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
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“B(2) Misconduct of the jury or prevailing party.”
Plaintiff contends that “misconduct,” as used in that provision, requires “something more than mere inadvertence or simple error.” She argues that, here, the trial court found that the failure to produce the merchant marine affidavit and other documents was mere inadvertence or simple error and, thus, the court erred in concluding that she had engaged in misconduct. Alternatively, she suggests that, even if the trial court found that the failure to produce the documents was more than mere inadvertence or simple error, it erred because it had to apply a presumption of misconduct to reach that determination. Finally, she argues that, even if there was misconduct, it did not “materially affect[] the substantial rights of” defendant.
“The trial court is the finder оf fact at a hearing on a motion for a new trial.” DeWolf v. Mt. Hood Ski Bowl, LLC, 284 Or App 435, 447, 392 P3d 759, rev den, 361 Or 885 (2017) (internal quotation marks omitted). Accordingly, we defer to the court‘s explicit and implicit findings of fact if they are supported by evidence in the record. Id.
“When the trial court‘s order of a new trial is based on an interpretation of the law, we review that order for errors of law. If the trial court made no predicate legal error, then we review its decision for an abuse of discretion.” Id. (internal quotation marks and
We begin by considering whether the trial court erred in determining that the failure to produce the documents supporting the bankruptcy trust claims was “misconduct.”
To evaluate that argument, we must consider the court‘s ruling and its factual findings. As we will explain, we disagree with plaintiff‘s first premise: In our view, the court found that plaintiff‘s local counsel deliberately, rather than inadvеrtently, failed to produce the merchant marine affidavit.
To explain that conclusion, we recount the proceedings below at some length. As noted above, in the new-trial motion, defendant argued that plaintiff‘s failure to turn over the documents, including the merchant marine affidavit, was misconduct by the prevailing party that materially affected defendant‘s substantial rights. In its written argument, defendant contended that a failure to produce discovery was misconduct within the meaning of
Plaintiff conceded that the documents were responsive to discovery requests and should have been produced. Plaintiff‘s lead counsel, who were from an out-of-state law firm, asserted that the failure to produce the documents was a mistake based on a miscommunication between the out-of-state firm and plaintiff‘s local counsel:
“Plaintiff does not dispute, and has never disputed, that these additional supporting documents are responsive to various requests for production and should have been produced. But due to a miscommunication between Plaintiff‘s law firms—Waters & Kraus [plaintiff‘s lead counsel] and the Law Office of Jeffrey S. Mutnick [plaintiff‘s local counsel]—they regrettably were not provided to counsel preparing the discovery responses. It was not until the trusts started sending documents directly [to defendant, after trial,] that Waters & Kraus first became aware some documentation had not been produced during discovery. Had Waters & Kraus been in possession of these documents previously, it would have produced them.”
Plaintiff contended that an innocent failure to provide discovery was not misconduct.
“When we got the discovery request asking for the bankruptcy documents, we sent an e-mail to Mr. Mutnick‘s office saying we have this discovery request, please send us all the claim forms. Their office read the request very literally to be just the claim forms, not any of the supporting documentation that had been submitted along with the claim forms. We didn‘t know the other supporting documentation existed. They sent us the claim forms, we thought that was it and we voluntarily produced them in response to the discovery [request]. That‘s really what happened.”
In response, defense counsel noted that plaintiff‘s explanation of the failure to produce the documents was not complete:
“Even if you wanted to read the discovery request that [plaintiff‘s lead counsel] noted literally [as including only the claim forms, not any supporting documents], we submitted multiple other discovery requests that asked for any supporting documentation that was submitted to the trust[s] in addition to the claim forms.
“I don‘t know if those requests were sent to Mr. Mutnick. I don‘t know why Mr. Mutnick would not have submitted the supporting documentation to plaintiff‘s counsel.”
The defense also argued that, in the absence of any information from plaintiff‘s local counsel, the court should infer that local counsel‘s failure to produce the documents was not inadvertent:
“I think it‘s very telling that Mr. Mutnick did not show up today. He did not show up a few months ago when we were here and this issue came up. There‘s not an affidavit from Mr. Mutnick that explains this. There‘s no documents that have been submitted that would explain how this innocent mistake happened.”
Later in the hearing, defense counsel summarized what he understood to be the court‘s position, which aligned with defendants’ view that the failure to produce the documents was not inadvertent: “the silence [from local counsel] is deafening.”
The court expressly credited plaintiff‘s lead counsel‘s explanation of their firm‘s role in the failure to provide discovery. The court held that that innocent mistake by lead counsel was not misconduct and, thus, held that lead counsel had not engaged in misconduct. However, as explained below, the court found that plaintiff‘s local counsel had deliberately withheld discovery.
During his argument, plaintiff‘s counsel argued that something more than inadvertence was required before the court could find misconduct and, implicitly, that direct evidence from plaintiff‘s local counsel was necessary to prove it:
“The time for them to submit evidence for the motions is closed a while ago and they have not submitted any evidence of—of misconduct. The Court recognized that, and as we explained in our brief, there has to be something more than a failure to just do something you‘re supposed to do. That‘s to use—to use their terms. Some evidence of negligence, malfeasance, misfeasance, even if it‘s not intentional misconduct, there has to be some additional if you want to call it mens rea, a scienter or what have you, it has to be something more. The very term of ‘misconduct’ itself implies that.”
The court accepted plaintiff‘s view of the meaning of misconduct, but disagreed that direct evidence was necessary to prove local counsel‘s reason for withholding discovery. Instead, the court inferred from the record that local counsel‘s failure to provide discovery was not inadvertent. The court responded:
“So the evidence I have before me is defendants made the specific request for all documents associated with submitting claims to all of the bankruptcy trusts and settlement trusts. They received some of the documents, but they didn‘t receive one particular—and the one that concerns me the most is an affidavit by the decedent himself talking about very significant asbestos exposure in locations other than defendants’ locations [that is, the merchant marine affidavit]. So that—I mean, doesn‘t
the fact that some of the documents were—or couldn‘t one reasonably infer from that, absent an innocent explanation, that there was misconduct? “[PLAINTIFF‘S OUT-OF-STATE COUNSEL]: No.
“THE COURT: That it was picking and choosing and Mutnick chose not to turn it over?”
The court did not explicitly state its factual findings. However, we are persuaded that the court ultimately answered the question it had posed in the affirmative, deciding that, given the information it had, it could, and would, infer that local counsel “chose not to turn it over,” that is, deliberately chose not to provide the merchant marine affidavit.
In closing, the court contrasted the innocent mistake by plaintiff‘s lead counsel, which it concluded was not misconduct, with local counsel‘s failure to turn over the discovery:
“*** I have no explanation for why discovery was held by Mr. Mutnick. And again, this is no disparagement of the [out-of-state] attorneys who came to trial and have done their best to remedy the situation, but an affidavit from the decedent that doesn‘t mention the other defendants or the premises-owner defendants in the affidavit that gives detail or significant detail about significant exposures to amphibole asbestos, that did—was material and did affect the substantial rights of the parties. And I can only construe, based on the evidence I have, that there was—it was a discovery violation and that it rises to the level of misconduct.”
After stating both of its rulings (under
Thus, the trial court found that local counsel deliberately withheld discovery that he knew was responsive to defendant‘s requests for production. Accordingly, we reject plaintiff‘s contention that the court found that the discovery violation was the result of an innocent mistake.
Plaintiff does not dispute that deliberate withholding of materials responsive to a request for production is misconduct for purposes of
As the court recited, the facts before it showed that, despite several clear discovery requests that required disclosure of all of the documents and information submitted to the bankruptcy trusts, plaintiff‘s local counsel failed to produce some documents that were submitted to the trusts, including the merchant marine affidavit, which was a significant and valuable piece of evidence for the defense. Then, although it should have been clear that local counsel‘s reason for failing to produce the documents was important, local counsel did not appear or otherwise make any effort to explain his actions.
It is true that, as plaintiff argues, there could be other explanations for local counsel‘s failure to produce the documents. However, in this instance, deciding which inference to make from the facts was within the province of the factfinder—the trial court—and we cannot disturb the court‘s findings on appeal. DeWolf, 284 Or App at 447. In sum, the court found that local counsel deliberately withheld discovery, and the record supports that finding. Thus, the court did not err in determining that there was misconduct.
Next, we consider whether the misconduct materially affected defendant‘s substantial rights. In the briefing, plaintiff addresses prejudice under
As described above, one of defendant‘s central trial strategies was to argue that any exposure to asbestos that Golik had at its mill was insignificant compared to his other exposures to asbestos over the course of his career. As noted above, the evidence that plaintiff presented indicated that Golik had been exposed to asbestos on defendant‘s premises for less than one month. Defendant wanted to show that Golik had had other exposures lasting much longer and, thus, that the exposures at defendant‘s mill was insignificant by comparison. The vehemence of рlaintiff‘s objections to defendant‘s attempts to provide the jury with information about other exposures shows that, at least in plaintiff‘s view, that strategy had some merit.
As explained above, however, that strategy was hampered by the lack of detailed evidence about Golik‘s other exposures. Although defendant had some information about other exposures in the form of the comprehensive work-history affidavit, it did not offer that affidavit because it cut against its theory that Golik did not work at its mill, and plaintiff intended to emphasize that aspect of the affidavit if it came in. Longview Fibre‘s attempt to have the same information admitted through cross-examination of plaintiff‘s expert was limited because of concerns about the potential for opening the door to the rest of the affidavit. Defendant introduced Golik‘s medical records and merchant marine records, but those records did not provide the kind of detail necessary for
In particular, the materials that defendant had at trial provided no detailed information about Golik‘s exposure while he was a wiper aboard ships in the merchant marine. As set out above, the work-history affidavit indicated that some part of Golik‘s work the merchant marine involved exposure to asbestos, but it did not identify any particular products or activities that would have exposed Golik to asbestos while he was working as a wiper aboard ships at sea; instead, it suggested that his exposure was limited to the time when he worked on ships in shipyards. The same was true of Golik‘s medical records. Consistently with that documentation, plaintiff‘s expert testified at trial that Golik‘s work as a wiper aboard ships at sea would not have exposed him to asbestos: His “work as a wiper per se was not a[n] identified exposure. Again, these are merchant marines operating a vessel. He wouldn‘t have disrupted insulation during operations of a vessel.”
But one of the documents that was withheld, the merchant marine affidavit, did include detailed information about one of Golik‘s other exposures to asbestos. It contained Golik‘s testimony that he was exposed to asbestos on a daily basis while he was working as a wiper aboard ships in the merchant marine:
“As a wiper aboard the SS Philippine Bear, my duties included, but were not limited to, cleaning, operating, repairing and maintaining engines, boilers, generators, pumps, pipes, gaskets, and turbines. I was regularly exposed on a daily basis to asbestos and asbestos-containing materials including, but not limited to pipe insulation, boilers, pumps, gaskets, generators, and other refractory products and breathed air containing particles of dust arising from such materials.”
The trial court determined, and we agree, that, from that description of Golik‘s work on the Philippine Bear, the jury would have been able to infer that Golik‘s exposures on the Philippine Bear were to amphibole asbestos and that he had similar exposures on the other two ships on which he was a wiper. Thus, if that affidavit had come into evidence, thе jury could have inferred that Golik was exposed to the most dangerous kind of asbestos on a daily basis for a total of 18 months—more than 18 times as long as the exposures at defendant‘s mill, and twice as long as his two other identified exposures combined—while he worked as a wiper aboard ships in the merchant marine.
As the trial court also noted, that affidavit did not mention defendant‘s premises, which strengthens the inference that defendant would have chosen to introduce it into evidence; it would not have undermined defendant‘s denial that Golik had been exposed on its premises. Plaintiff contends that that is immaterial because “the use of [the merchant marine affidavit] at trial would have opened the door to myriad documents placing Mr. Golik at defendants’ mills, which is the very thing they fought so hard to avoid.”
Plaintiff contended before the trial court, and appears to contend again on appeal, that admission of any of the records from the bankruptcy trust claims would necessarily have “opened the door” to admission of all of those records. Before the trial court, plaintiff suggested that
Considering the context of the whole case—defendant‘s strategic choices, the evidence that was available at trial, the significance of the merchant marine affidavit, and the likelihood that the jury would have been persuaded—the trial court found that the absence of the merchant marine affidavit was important and, consequently, held that the misconduct materially affected defendant‘s substantial rights. We agree that the misconduct materially affected defendant‘s substantial rights; it materially impaired defendant‘s ability to present its case to the jury.
There is some likelihood that the outcome would have been different if defendant had been able to present the merchant marine affidavit. Accordingly, the trial court did not err in ordering a new trial under
DEFENDANT‘S CROSS-APPEAL
We turn to defendant‘s challenges to the court‘s denial of its JNOV motion, beginning by considering the reviewability of those assignments of error. Our review of the denial of a JNOV motion based on the insufficiency of the evidence is circumscribed in several ways. First, orders that deny both new trial and JNOV motions are not appealable. Building Structures, Inc. v. Young, 328 Or 100, 111, 968 P2d 1287 (1998) (order denying JNOV is not appealable); Iron Horse Engineering v. Northwest Rubber, 193 Or App 402, 415, 89 P3d 1249 (2004) (order denying new trial and JNOV is not “reviewable”). However, when the court grants a motion for a new trial and denies a JNOV motion in the same order, that order is appealable and the denial of the JNOV motion is, as a general matter, reviewаble. See
Despite that general principle allowing review of the denial of JNOV motions when a new trial has been granted, other limitations still apply. We may review the denial of a JNOV motion only if the party assigning it as error raised the same issue in a motion for directed verdict at the close of all of the evidence, as required by
The present case is one of the few cases in which all of the requirements for review of the denial of a JNOV motion are met and in which we cannot review the denial of the preceding directed-verdict motion rather than the denial of the JNOV motion: The new trial order is appealable because the court granted a new trial as well as denying defendant‘s JNOV motion. The issues raised in defendant‘s JNOV motion were properly raised in a motion for directed verdict made at the close of all the evidence, as required by
On the rare occasion when we review the denial of a JNOV motion, we apply the same standard of review that we apply when the court has granted a JNOV:
“[W]e view the evidence in the light most favorable to the party who prevailed before the jury—here, plaintiff—and examine the record to ascertain whether it contains evidence which supports the verdict. Our review of the record is circumscribed by the case actually presented to the jury through pleadings, evidence, and jury instructions. We must [not disturb] the jury verdict unless we can say affirmatively that there was no evidence to support it.”
Vukanovich v. Kine, 268 Or App 623, 633, 342 P3d 1075, adh‘d to as modified on recons, 271 Or App 133, 349 P3d 567 (2015) (internal quotation marks, brackets, and citations omitted); see Hillman, 213 Or at 310-15 (reviewing denial of JNOV motion for legal error and sufficiency of the evidence).
Defendant contends that the trial court erred in failing to enter judgment notwithstanding the verdict on each of plaintiff‘s claims. Its arguments on each claim go to whether it owed a duty to Golik, rather than any other element of the claims. We begin with defendant‘s challenge to plaintiff‘s premises liability claim.
In the premises liability claim, plaintiff alleged that defendant owed Golik a duty of care as a landowner because Golik was a business invitee on its premises. Defendant contended that the cause of Golik‘s injury was outside the scope of its duty to him because plaintiff did not show that there was a dangerous condition on defendant‘s premises; defendant argued that its premises was not in a dangerous condition when it was turned over to Golik‘s employer, AC&S, because it is undisputed that AC&S‘s work—and not any work done directly by defendant‘s employees—created the airborne asbestos that injured Golik.
Plaintiff responded thаt defendant created a dangerous condition on the premises by directing AC&S to install asbestos insulation on its boiler because that installation necessarily created the airborne asbestos that caused Golik‘s mesothelioma. In denying defendant‘s motions for directed verdict and JNOV, the trial court agreed with plaintiff that her premises liability theory turned on defendant‘s own negligence, not negligence of
“Employees of independent contractors hired by landowners are invitees on the landowners’ premises.” Kamla v. Space Needle Corp., 147 Wash 2d 114, 125, 52 P3d 472, 477 (2002). The Washington Supreme Court has adopted the Restatement (Second) of Torts, sections 343 and 343A (1965), to govern landowners’ duties to invitees. Those sections provide as follows:
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”
Restatement § 343.
“‘A possessor of land is not liable to his [or her] invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’”
Iwai v. State, Employment Sec. Dept., 129 Wash 2d 84, 94, 915 P2d 1089, 1093 (1996) (quoting Restatement § 343A).
As relevant here, together, those two sections impose liability to invitees for injuries from activities or conditions on the land whose danger is known оr obvious to the invitees when, despite the fact that the danger is known or obvious, the possessor should anticipate the harm.10 See, e.g., Kamla, 147 Wash 2d at 126, 52 P3d at 478 (“Properly framed, the question in this case is whether Space Needle should have anticipated Kamla‘s harm, despite the obvious hazard posed by the moving elevators.”); Iwai, 129 Wash 2d at 94, 915 P2d at 1093 (“Mrs. Iwai may have known about the ice in the parking lot, but if Employment Security ‘c[ould] and should [have] anticipate[d] that the dangerous condition w[ould] cause physical harm to the invitee notwithstanding its known or obvious danger,’ then section 343A may impose liability.” (Quoting Restatement section 343A.)).
Defendant does not challenge the sufficiency of the evidence to impose liability under those sections. Rather, as noted above, it contends that, as a matter of law, AC&S‘s creation of airborne asbestos was not properly considered an activity or condition on defendant‘s land because AC&S, not defendant, brought the asbestos onto the land.
In support of that position, it relies on Washington case law holding that, generally, a premises owner is not liable for injuries to the employees of a subcontractor as long as the premises were safe when they were turned over to the subcontractor. See, e.g., Epperly v. City of Seattle, 65 Wash 2d 777, 787, 399 P2d 591, 597 (1965) (“In the case at bar, the city did not supervise the activities of the workmen, did not furnish the appliance which failed and it did nothing affirmatively to increase the risk. The premises were safe when turned over to the contractor and knowledge concerning the hazard which arose thereafter was as available to the contractor as to the city.”); Hymas v. UAP Distribution, Inc., 167 Wash App 136, 162, 272 P3d 889, 901, rev den, 175 Wash 2d 1006, 284 P3d 742 (2012) (adhering to Golding v. United Homes Corp., 6 Wash App 707, 495 P2d 1040 (1972), in which the court had “reaffirmed the general rule stated in Epperly thаt the owner of premises owes to the servant of the independent contractor employed to perform work on his premises the duty to avoid endangering him by the owner‘s own negligence or affirmative act, but owes no duty to protect him from the negligence of his own master” (emphasis added)); Golding, 6 Wash App at 712, 495 P2d at 1043-44 (where “the defendant did not supervise the activities of the independent contractor or his workmen and did
In Hymas, the court explained the relationship between Restatement sections 343 and 343A and the general rule of nonliability for acts of independent contractors, which, as noted, is expressed in both Restatement section 409 and the Washington case law on which defendant relies. In that case, the plaintiff was an employee of an excavation and concrete contractor who was injured when he fell into a trench that his employer had dug for the foundation of a building. The defendant corporation was the landowner and was overseeing the construction of the building. Id. at 142-43, 272 P3d at 892. On appeal of a summary judgment for the defendant, the plaintiff argued, among othеr things, that the defendant owed him a duty on a premises liability theory. Id. at 159, 272 P3d at 900.
The plaintiff acknowledged that the Washington Supreme Court had held that “[a] landowner‘s responsibility for the condition of the land does not make the landowner liable for the negligent acts or omissions of an independent contractor.” Id. at 161, 272 P3d at 901 (citing Lamborn v. Phillips Pac. Chem. Co., 89 Wash 2d 701, 708, 575 P2d 215, 220 (1978)). However, he argued that the court had abrogated that rule when it adopted Restatement sections 343 and 343A to govern the duties of premises owners to licensees. Id. at 162, 272 P3d at 901.
The Hymas court disagreed. It explained that the Washington case law reflects Restatement section 409, and that principle limits the court‘s analysis of landowners’ duties to invitees under sections 343 and 343A:
“[T]he principles of common law reflected in sections 343 and 343A do not displace common law limitations on a principal‘s liability to an independent contractor‘s employees, which are themselves recognized at, e.g., Restatement §§ 409, 413 and 414, as well as in the cases relied upon by [the defendant]. Both sets of principles are recognized in Washington cases and each operates in its proper sphere.”
Id., 272 P3d at 901. After explaining how sections 343 and 343A leave room for application of the principle of nonliability for acts of independent contractors, the court concluded that, “[w]here the landowner has discharged its obligation to prepare its land and warn or otherwise protect an independent contractor-invitee, it is other principles of common law, reflected in the Restatement at sections 409-429, that address the relative responsibilities of the owner and the independent contractor for the independent contractor‘s activities.” Id. at 163, 272 P3d at 902. In Hymas, the court concluded that the general rule of nonliability applied and no exceptions applied. Thus, it affirmed the trial court‘s grant of summary judgment. Id. at 164-65, 272 P3d at 903.
Hymas establishes that defendant is correct that the general rule of nonliability is applicable here—unless one of the exceptions to that rule applies. However, as explained below, both Washington courts and section 410 of the Restatement—which is one of those “other principles of common law, reflected in the Restatement at sections 409-429,” identified in Hymas—recognize an exception for situations in which the plaintiff‘s theory of liability rests on the negligence of the defendant itself, not just vicarious liability for the negligence of the independent contractor. Id. at 163, 272 P3d at 902.
Washington courts have made clear that the general rule of nonliability for acts of independent contractors does not excuse a premises owner from liability for its own negligence. See, e.g., Tauscher v. Puget Sound Power & Light Co., 96 Wash 2d 274, 281, 635 P2d 426, 430 (1981) (“An owner who employs an independent contractor is already liable to all third persons, including employees of the independent contractor, for his or
Consistently with that case law, section 410 of the Restatement establishes an exception from the general rule of nonliability where the harm arises from the premises owner‘s negligent direction of the contractor. Section 410 provides as follows:
“The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.”
Section 410 is one of the sections of the Restatement that Hymas identified as applying in conjunction with sections 343 and 343A to determine the liability of landowners. 167 Wash App at 163, 272 P3d at 902; see also Restatement § 410 comment b (noting that the section applies in conjunction with section 343).11
Although no Washington court has expressly applied Restatement section 410, that section is among those that the court in Hymas identified as governing “the relative responsibilities of the owner and the independent contractor for the independent contractor‘s activities.” 167 Wash App at 163, 272 P3d at 902. It is also consistent with Washington courts’ statements that a landowner remains liable to the employees of independent contractors for its own negligence. See Tauscher, 96 Wash 2d at 281, 635 P2d at 430; Winfrey, 58 Wash App at 725, 794 P2d at 1302; see also Ventoza v. Anderson, 14 Wash App 882, 895, 545 P2d 1219, 1229, rev den, 87 Wash 2d 1007 (1976) (noting that one of the exceptions to the general rule of nonliability that was specified by a jury instruction “impose[s] liability upon an employer for negligent direction of the independent contractor (Restatement (Second) of Torts § 410 (1965))”). Accordingly, we conclude that Restatement section 410 accurately represents Washington law.12
As noted above, defendant asserts that the airborne asbestos cannot be considered a dangerous condition on their premises because the premises were safe when AC&S started work. As we have explained, however, Restatement sections 343 and 343A work together with Restatement sections 409 and 410 to establish that a premises owner can be liable for an independent contractor‘s creation of an obviously dangerous condition on the land when the owner negligently directs the contractor to create the dangerous condition and should anticipate that, despite its obviousness, the contractor‘s employee will be injured by it. Thus, the trial court correctly determined that the jury could consider plaintiff‘s theory that AC&S‘s creation of large amounts of airborne asbestos was a dangerous condition on defendant‘s premises. The trial court did not err in denying defendant‘s JNOV motion on the premises liability claim.
Next, we turn to defendant‘s argument that the trial court erred in denying its JNOV motion on plaintiff‘s negligence claim. First we consider plaintiff‘s theory that defendant owed Golik a duty under the common law because it retained control over his work. As discussed above, the general rule is that “an employer who contracts with an independent contractor is not liable for injuries sustained by an independent contractor‘s employees.” Cano-Garcia v. King County, 168 Wash App 223, 246, 277 P3d 34, 48, rev den, 175 Wash 2d 1010, 287 P3d 594 (2012); see also Restatement § 409 (stating the rule). An exception applies when the employer retains control over the contractor‘s work: “[W]here the employer retains control over some part of the independent contractor‘s work, the employer has a duty within the scope of that control to provide a safe place to work.” Cano-Garcia, 168 Wash App at 246, 277 P3d at 48.
The reasoning underlying the exception is that, if an employer retains “the right to direct the manner in which the work is performed,” the independent contractor effectively becomes an employee, rendering the general rule inapplicable. Kamla, 147 Wash 2d at 121, 52 P3d at 475-76. Consequently, if the retained control is over the work in general, it must be pervasive, and, if it involves only one aspect of the work, it must be extremely detailed. See Afoa v. Port of Seattle, 176 Wash 2d 460, 481, 296 P3d 800, 812 (2013) (Although “not every licensor or jobsite owner takes on a common law duty to maintain a safe workplace any time it requires on-site workers to comply with safety rules and regulations,” “a jobsite owner who exercises pervasive control over a work site should keep that work site safe for all workers[.]”); Kinney v. Space Needle Corp., 121 Wash App 242, 244-45, 247-48, 85 P3d 918, 919, 921 (2004) (the record contained sufficient evidence of retained control over safety where the employer—not the independent contractor—provided “the safety equipment including safety lanyards, harnesses, hoists, couplings, and safety lines with stops”
Defendant contends that plaintiff failed to present evidence sufficient to show, under Washington law, that defendant retained enough control over AC&S‘s or Golik‘s work to require it to provide a safe place to work. As explained below, we agree.
Plaintiff did not introduce any contract between defendant and AC&S or between defendant and a general contractor who subcontracted with AC&S for the work that AC&S did at defendant‘s mill. Rather, to show that defendant retained control over the work of AC&S and Golik, plaintiff relied on general information about defendant‘s contracting practices from the deposition testimony of defendant‘s corporate representative, Barry Carson, and on provisions from several documents related to contracts that defendant entered into at other times with other contractors.
Carson testified that, for insulation contracts, defendant would put out requests for proposals that included drawings and specifications, including the brand of insulation to be used. Regarding who was responsible for safety under insulation contracts, Carson agreed that in “third-party contract[s] with other parties, including asbestos insulation subcontractors,” although the contractors were responsible for safety, defendant retained the right to “stop the job if [defendant] felt it was unsafe.”
None of Carson‘s testimony indicates that defendant had “the right to exercise day to day control over the manner in which the details of the work are performed.” Epperly, 65 Wash 2d at 785, 399 P2d at 596. The Washington Supreme Court has explained that provisions in a contract whose purpose is to allow the employer to “insure that it receives the product which it desires and within the time limit specified for the completion of the work” do not show retained control. Id., 399 P2d at 596. For that reason, specifications for the work, even “detailed specifications,” do not show retained control. Id., 399 P2d at 593. The same is true of the right to stop work for safety violations. Cano-Garcia, 168 Wash App at 237, 277 P3d at 43 (“Although the contract language provided for inspections to ensure compliance with the contract and relevant laws and regulations and stop work authority if an imminent threat to safety arose, those powers alone are not enough to constitute retained control.”).
Plaintiff also proffered, and the court ultimately admitted, parts of other contracts and documents related to some of defendant‘s contracts with other contractors for other work.13 The court held that the documents were admissible only for a limited purpose: Accepting plaintiff‘s representations that the documents showed “a pattern in the language of how the respective defendants managed their contractors and the control that they maintained with respect to their contractors,” the court admitted the documents on the theory that, to the extent that provisions in the documents demonstrated a pattern with regard to how much control defendant retained over contractors, “the inference could be drawn that similar language would have been *** included in the AC&S contract, to the extent there was one.” In keeping with that limited purpose, the court gave the jury a limiting instruction regarding the documents.
On appeal, plaintiff identifies four documents and provisions that, it contends, show that, regardless of whether AC&S contracted directly with defendant or was hired by another subcontractor, defendant retained sufficient control over the way AC&S carried out its work that it was responsible for AC&S‘s
Those prоvisions do not demonstrate that defendant retained control over the manner in which AC&S or Golik performed the work. The latter three provisions are ways in which defendant sought to “insure that it receives the product which it desires”; they define the work to be performed and provide contract-based methods of quality control. Epperly, 65 Wash 2d at 785, 399 P2d at 596; see also Hymas, 167 Wash App at 157, 272 P3d at 899 (noting that the right to reject work or stop the work of an independent contractor is not retained control).
The first provision—providing that “[t]he Contractor shall comply with the basic safety rules of the particular mill which cover such items as personal safety, speed limits, smoking areas”—would contribute some weight to a body of evidence indicating that defendant retained control over the safety of AC&S‘s work. However, alone, it does not show sufficient retained control to justify imposing liability on an employer of an independent contractor as the direct employer of the contractor‘s employees. The Washington Supreme Court has explained that “not every licensor or jobsite owner takes on a common law duty to maintain a safe workplace any time it requires on-site workers to comply with safety rules and regulations. Afoa, 176 Wash 2d at 481, 296 P3d at 811. Here, none of the other evidence suggests that defendant retained control like an employer, rather than specifying the timing and quality of the work, like a contracting party. Carson testified that contractors, rather than defendant, were ultimately responsible for safety. And the evidence about AC&S‘s work practices indicated that that company‘s workers were supervised by an AC&S foreman, not an employee of defendant. The provision requiring independent contractors to follow mill rules does not, alone, show sufficient retained control.
Thus, the provisions that plaintiff relies on do not show that defendant retained control of the manner in which AC&S and Golik performed the work. Nor has our examination of the record revealed any other pattern of provisions demonstrating retained control. Consequently, the record does not support plaintiff‘s theory that defendant owed Golik a common-law duty because it retained sufficient control over the manner in which he performed the work to make him akin to an employee, rather than an independent contractor.
However, that does not mean that the court‘s error was a reversible one. As explained above, on plaintiff‘s second claim, plaintiff presented two alternative theories of duty to the jury, and the jury accepted both. Consequently, the court did not commit reversible error in denying defendant‘s JNOV motion on plaintiff‘s second claim unless both theories of duty were invalid. Cf. Burley v. Clackamas County, 298 Or App 462, 464, 446 P3d 564, rev den, 365 Or 721 (2019) (where “claims were presented to the jury as independent, alternative theories of liability based upon the same conduct” by the defendant, “if either one went to the jury in an error-free way, then any error that may have occurred in submitting the other theory to the jury would be harmless”). Thus, we briefly consider, and reject, defendant‘s challenge to plaintiff‘s statutory-duty theory of duty.
Defendant argues that, to prevail on her statutory-duty theory, plaintiff had to prove that dеfendant retained the same degree of control over the work of AC&S and Golik as is required to show that defendant owed a
In summary, the trial court did not err in granting defendant‘s motion for a new trial or in denying its JNOV motion.
Affirmed on appeal and cross-appeal.
Notes
“When part of an act, declaration, conversation or writing is given in evidence by one party, the wholе on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may at that time also be given in evidence.”
By contrast, the assignment of error to the denial of the JNOV motion is not moot because, if it is correct, it entitles defendant to more complete relief than the new trial to which the trial court determined that defendant was entitled. In other words, if we were to conclude that the trial court erred in denying the JNOV motion on either of plaintiff‘s claims, we would remand for entry of a judgment in defendant‘s favor on the claim or claims on which it was entitled to judgment notwithstanding the verdict. See Hillman, 213 Or at 301 (noting that the court would review the denial of the defendant‘s JNOV motion in a case where the trial court had granted a new trial and denied the defendant‘s JNOV motion because the “defendant could not appeal from the judgment for the plaintiff because it was set aside” and the defendant would have been entitled to more complete relief—a final judgment, not just a new trial—if the JNOV had been granted).
Here, the parties disputed the degree to which the danger from the airborne asbestos was known to Golik or obvious. For purposes of our analysis, we assume that the danger was known or obvious.
Another exception to the general rule of nonliability exists for injury resulting from inherently dangerous activities by the contractor. Tauscher, 96 Wash 2d at 280-81, 635 P2d at 429-30 (noting that “support for the exception [for inherently dangerous activities] to the rule on nonliability is expressed in sections 413, 414, 416 and 427 of the Restatement (Second) of Torts” (footnotes omitted)). However, the inherently-dangerous-activities exception is limited to injuries to third parties, as opposed to employees of the contractor. Id. at 279, 635 P2d at 429 (“[T]he employer‘s liability does not extend to employees of independent contractors merely because of the presence of inherently dangerous activities.”). The inherently-dangerous-activities exception is different from the exception set out in Restatement section 410 because the former exception imposes vicarious liability on the employer for the contractor‘s negligence, whereas section 410 imposes liability for the employer‘s own negligence. See Restatement § 410 (requiring acts of the contractor to be “pursuant to orders or directions negligently given by the employer” (emphasis added)); accord Tauscher, 96 Wash 2d at 281, 635 P2d at 430 (“An owner who employs an independent contractor is already liable to all third persons, including employees of the independent contractor, for his or her own negligence[.]”).
It is possible that Washington courts might hold that the principle recognized by section 410, like the inherently-dangerous-work exception, is limited to liability for harm to third parties, as opposed to harm to the employees of the independent contractor. However, we note that the text of section 410 does not limit its application in that way, in contrast to other sections. See Restatement § 411 (limiting employer‘s liability for nеgligent selection of contractors to harm to “third persons”). Moreover, the principle recognized in section 410 is a close relative of the retained-control theory that Washington courts have embraced. See Gass v. Virgin Islands Tel. Corp., 311 F3d 237, 241 n 3 (3d Cir 2002) (“[O]ur analysis in this section applies to both sections 410 and 414. With respect to the issue presented in this case, there is no need to distinguish between the sections because they differ only in the degree of control exercised by the employer of the independent contractor. Under section 410, the employer must be alleged to have given orders or directions negligently, and under section 414, the employer must be alleged to have exercised his retained control negligently. Both sections deal with the direct liability imposed on the employer of the independent contractor for his own negligent acts. That commonality between the sections is at the core of this Court‘s analysis of the issue of the availability of employer liability.”). In light of those considerations and Washington courts’ statements that landowners remain liable for their own negligence, we conclude that the principle of section 410 is not limited to liability for harm to third parties.
Defendant challenges the admission of those documents in some of its assignments of error based on the general judgment and incorporates those arguments into its assignment to the denial of the JNOV. We need not address the admissibility of the documents because, as explained below, we conclude that, even if they were properly admitted, they do not establish that defendant retained control over the work of AC&S or Golik.