Plaintiff, a plumber, fell on a construction worksite and was injured. He filed suit against defendant Jones,
I. FACTS AND PROCEDURAL HISTORY
When reviewing the grant of a motion for summary judgment, we view the facts in the light most favorable to the nonmoving party. ORCP 47 C; Jones v. General Motors Corp.,
Jones, who lived in Eureka, California, was building the house for his son and daughter-in-law on property that the Jones 1996 Family Trust owned in Medford. Jones was an experienced general contractor with extensive knowledge of fall protection, but he was not licensed in Oregon.
Jones orally agreed with Rossetto that Rossеtto would frame the house. Rossetto was an experienced framer and had also acted as the general contractor on numerous home construction projects. In the past, as part of his responsibilities as a framing subcontractor, he had held safety meetings regarding fall protection and had installed fall protection along second-floor hallways exposed to the first floor. That fall protection had remained in place while other subcontractors worked on the site until Rossetto’s work was complete.
Rossetto testified that, in this case, he did not install fall protection because he had no employees working on the project. For his part, Jоnes assumed that, as part of Rossetto’s responsibility for framing, Rossetto would provide fall protection for areas around the stairwell before other subcontractors began performing interior work. However, Jones and Rossetto did not discuss fall protection at any time before plaintiff was injured.
Rossetto engaged Brown to help him frame the house. He paid Brown a flat fee
As noted, Jones contracted with plaintiffs employer to plumb the house. The record does not reflect whether that contract was oral or written or what its terms were. When the interior framing was about 90 percent complete, Rossetto notified Jones, who contacted plaintiffs employer and requested that the company send someone out to do the necessary plumbing work. Plaintiff was notified that he should go to the site. At the time of the accident, plaintiff was the only person at the site.
When Jones learned of plaintiffs injury, he was surprised that thеre was no fall protection installed. The same day, he contacted Rossetto and told him to put up temporary barriers. Rossetto did so, and the barriers remained in place until a permanent system was installed.
Plaintiff had worked on the construction of numerous multi-story buildings, many of which had lacked fall protection, and he did not expect fall protection at the site. He knew that there was a danger of falling off of exposed ledges. However, he had never taken precautions against falling — for example, by installing temporary railings or using a spotter — when working at sites without fall protection.
Plaintiffs expert, Baird, stated that, as the framing contractors, Rossetto and Brown were resрonsible for installing fall protection on the second floor, including the area where plaintiff fell, and that installation of fall protection by framers is standard industry practice. Baird also stated that it is not the responsibility of a plumbing subcontractor like plaintiffs employer to install fall protection. Plaintiff submitted OAR 437-003-1501(3) and American National Standard (ANSI/ASSE) Rule A10.18-2007, which require the use of fall protection in the area where plaintiff fell, as evidence of the standard of care.
As to Jones, the owner-builder, plaintiff alleged (1) a claim of common-law negligence, essentially for failing to provide fall protection or make sure that Rossetto and Brown provided it;
Plaintiff appeals. In five assignments of error, he challenges the trial court’s conclusion as to each defendant on each claim. We must determine whether there are any genuine issues of material fact and whether defendants are entitled to judgment as a matter of law. Jones,
II. COMMON-LAW CLAIMS
A. Background
We begin by summarizing the background legal principles underlying plaintiffs common-law claims. Then we discuss the Yowell doctrine, which affects both plaintiffs common-law negligence claims and his premises-liability claim. As explained above, plaintiff alleged (1) a common-law negligence claim against each defendant; (2) a premises-liability claim against Jones only; and (3) an ELL claim against each defendant.
Underlying plaintiffs common-law negligence claims is the premise that, “unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defеndant’s duty, the issue of liability for harm actually resulting from [a] defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School Dist. No. 1J,
As to the premises-liability claim against Jones, plaintiff invokes the special relationship between a landowner and an invitee on the property. See Hughes v. Wilson,
In light of those clаims, our task is to determine whether, as a matter of law, the relationship between plaintiff and each defendant meets the requirements for the special relationship first established by Yowell and, as discussed below, modified in subsequent cases. If it does not meet those requirements, the parties do not dispute that, as to the negligence claims, Fazzolari's general foreseeability principle governs defendants’ potential liability to plaintiff, and, as to the premises-liability claim, the landowner-invitee relationship governs Jones’s potential liability to plaintiff.
In Yowell, the plaintiff, an electrician who worked for a company that repaired signs, was injured while repairing a sign for the defendant, a tire business.
The trial court granted an involuntary nonsuit at the conclusion of the plaintiffs case-in-chief, and the plaintiff appealed. Id. at 320. On appeal, the defendant defended the trial court’s ruling, arguing that it did not owe any duty to the plaintiff, the employee of an independent contractor, under a rule set out in
The Supreme Court first noted that, under Oregon law, it was not settled that an occupier of land owed any duty to the employee of an independent contractor, regardless of whether the defect that caused the injury was related to the independent contractor’s area of expertise. Id. at 324. However, for purposes of deciding the case, the court assumed that the occupier of the land could owe а duty to the employee of an independent contractor. It held:
“Plaintiffs employer, the independent contractor, held itself out to the public as being engaged in the business of manufacturing, installing and repairing all kinds of signs. Defendant was therefore entitled to assume, until notice to the contrary, that plaintiffs employer and its employees who were sent to work on defendant’s signs were proficient and expert in detecting any defects in signs which formed a danger to those working in or around them. Defendant was not shown to have known of the defect in the sign. Nor was it shown to have had any expertise concerning signs. Any other rule would have required defendant to employ plaintiffs employer, or another expert, first, to inspect the signs for defects which would be a danger to one making the repairs in question and, then, that having been done, to employ him to repair the illumination in the sign.
“A person who orders repairs or work to be done by a third party owes no duty to such third party or his workman to discover and warn of any unknown dangerous conditions surrounding the work which fall within a special expertise or knowledge, not shown to have been had by the person ordering the work, and which the third party impliedly represents to the public that he possesses.”
Yowell,
We discussed Yowell in Brown v. Boise-Cascade Corp.,
We suggested, in a footnote, that the holding of Yowell might extend to obvious risks. We stated:
“We note, parenthetically, that, at least in some circumstances, plaintiff’s ‘obvious hazard’ analysis is tautological. For example, if a homeowner hires a specialist to patch a roof or to prune some trees, the risk of a fall is obvious. Under plaintiff’s reasoning, the homeowner could be liable in negligence for failing to provide a railing or fall protection.”
Id. at 402 n 7. In other words, we did not believe that a defendant who has no special expertise in an area should have a duty to provide protection from an obvious risk that is inherent in the plaintiffs work — for example, a roofer’s risk of falling off a roof — before allowing the plaintiff to begin working. The nature of risks inherent in the plaintiffs specialized task and the safety measures that will best protect the plaintiff under the circumstances are matters “peculiarly within [the plaintiffs employer’s] ‘special expertise or knowledge.’” Id. at 401 (quoting Yowell,
In George v. Myers,
On appeal, the plaintiff asserted that Yowell did not apply because, unlike the risk in Yowell, which was created by a latent defect, the risk of falling from the unprotected third floor of the house was obvious. We agreed with the plaintiff that the risk was obvious, but we concluded that, in light of the concern that we had expressed in Brown, Yowell was nevertheless applicable:
“[I]n the circumstances here, the reasons underlying Yowell’s overarching ‘no duty’ principle preclude liability. Indeed, the very obviousness of the risk — coupled with the fact that that risk was inextricably intertwined with [the plaintiffs employer’s] performance of a specialized task over which defendant neither retained nor exercised control— compels that conclusion. In such circumstances, defendant was entitled to rely on [the plaintiffs employer’s] ‘special expertise or knowledge’ with respect to the ‘advisability and efficacy’ оf fall protection measures in framing homes— and, thus, as a matter of law, was not obligated to undertake such measures. See Brown,150 Or App at 402 . As we suggested in Brown, to impose liability in such circumstances would be ‘tautological [.]’
“Here, the evidence was uncontroverted that defendant hired [the plaintiffs employer] because of its experience and specialized expertise in framing. There was no evidence that defendant had any knowledge or expertise regarding appropriate fall protection in framing multi-story houses. Consequently, Yowells fundamental principle precludes liability in this case.”
George,
We applied and extended the doctrine again in Boothby v. D. R. Johnson Lumber Co.,
We concluded that, just as the risk of falling while framing in George was “inextricably intertwined with” the framing company’s specialized task of framing the house,
C. Application
Here, there is a genuine issue of material fact about whether plaintiffs risk of falling from the second floor was inextricably intertwined with his performance of the specialized task for which Jones hired plaintiffs employer. Defendants’ position is that, similar to the hypothetical roofers discussed in Brown, whose risk of falling from the roof was indisputably part of their work as roofers, plaintiffs risk of falling from the second floor was part of his employer’s specialized task because plumbing a multi-story building necessarily includes going up to the second floor. That is, they contend that part of plaintiffs job as a plumber — and, consequently, part of the job for which Jones hired plaintiffs employer — is tо move around construction sites, including elevated areas that may lack fall protection. On the other hand, plaintiff asserts that his risk of falling was not inextricably intertwined with his employer’s specialized task because there is nothing about plumbing — as opposed to, for example, the work of an electrician or another interior subcontractor — that necessarily involves the
We cannot choose between those competing views because they implicate an unresolved question of fact about the scope of plaintiffs employer’s specialized task in this case. As demonstrated by George and Boothby, the considerations relevant to whether a risk is inextricably intertwined with the plaintiffs еmployer’s specialized task include the terms of the agreement between the defendant and the plaintiffs employer, Boothby,
Here there is evidence supporting both the view that plaintiffs employer was responsible for providing fall protection and the opposite view — that is, that Jones, and, through him, Rossetto and Brown, were responsible for providing fall protection. For example, in favor of the view that plaintiffs employer was responsible for protecting against falls like plaintiff’s are the facts that plaintiff did not expect fall protection to be installed, had often worked at sites without fall protection, and knew of the risks of falling from exposed areas. On the other hand, facts suggesting that Jones and, through an agreement with him, Rossetto and Brown, were responsible for protecting against falls like plaintiff’s include plaintiff’s expert’s statement that the industry standard is for a framing contractor, not a plumbing contractor, to provide fall protection and Jones’s expectation that Rossetto would install fall protection before other interior contractors began their work.
In Yowell, George, and Boothby, it was beyond dispute that the causes of the plaintiffs’ injuries were inextricably intertwined with the specialized tasks for which the defendants had hired the plaintiffs’ employers. In Yowell, the plaintiffs employer held itself out to the public as expert in all aspects of sign installation and repair, and the defendant hired the plaintiff’s employer with the expectation that its employees would be experts able to avoid any injury from defects in signs. In George, the defendant hired the plaintiffs employer for its expertise in framing, and the plaintiff was injured by a fall that took place in an area that was being framed under the exclusive control of the framer. In Boothby, the defendant hired the decedent’s employer for its expertise in logging, including safety procedures, and memorialized that reliance in a contract delegating sole control over safety procеdures to the decendent’s employer.
In this case, J ones hired plaintiffs employer to plumb the house. In doing so, he may have relied on plaintiffs employer — the plumbing subcontractor — to make judgments about the necessity and advisability of fall protection on the second floor. But that is not the only way to understand the record. It is also possible that the parties intended, in keeping with industry custom, for the framers, not the plumber, to provide fall protection. If that is the case, then the risk of falling from the unprotected second floor was not inextricably intertwined with plaintiffs plumbing work; instead, it was a risk that plaintiff faced only because Jones, Rossetto, and Brown had failed to provide fall protection.
Because a genuine question of material fact remains to be resolved, defendants were not entitled to summary judgment on plaintiffs common-law negligence claims on the basis of the Yowell doctrine. For the same reason, Jones was not entitled to summary judgment on plaintiffs premises-liability claim on the basis of the Yowell doctrine.
III. EMPLOYER LIABILITY LAW
Next we consider whether the trial court properly granted summary
The Supreme Court has identified three routes to ELL liability for an indirect employer:
“[ELL] liability can be imposed on a person or entity who (1) is engaged with the plaintiff’s direct employer in a ‘common enterprise’; (2) retains the right to control the manner or method in which the risk-producing activity was performed; or (3) actually controls the manner or method in which the risk-producing activity is performed.”
Woodbury v. CH2M Hill, Inc.,
Here, plaintiff argues that the risk-producing activity was his “walking along the hallway in an area that lacked fall protection,” which was part of his plumbing work. He contends that defendants retained control over that activity because “they controlled the work site and conditions that [plaintiff] encountered.” Defendants remonstrate that they did not retain control over the manner or method in which plaintiff performed his plumbing work because they did not direct his choice of how or where to install plumbing fixtures or what safety measures to take.
Plaintiffs view is correct under Supreme Court case law. In Woodbury, the Supreme Court explained how to determine the scope of the “work involving a risk or danger to the employees,” ORS 654.305, or the “risk-producing activity,” Woodbury,
“While moving the boards, plaintiff was working at a dangerous height over a concrete surface. That height created a constant risk of harm to the employees working on that section of the pipeline. During that part of the project, the risk was reduced by building a platform on which plaintiff could stand while installing that section of the pipeline. The work included both the assembly and disassembly of the platfоrm. The height of the work posed a risk of injury to the employees while the platform was assembled, while it was used to complete the project, and while it was disassembled. The risk of falling, then, was the most obvious potential and foreseeable danger during the installation of that section of the pipeline. We conclude that, under these facts, the ‘work involving a risk or danger’ included requiring plaintiff to work at height during the assembly, use, and disassembly of the platform.”
On the facts of this case, under Woodbury, the “work involving a risk or danger” — specifically, thе work involving a risk of falling — included not only plaintiffs installation of plumbing fixtures on the second floor, but also his walk along the unprotected second-floor hallway. Thus, that walk was part of the risk-producing activity that plaintiff was required to perform as part of his plumbing work on the house. Plaintiff contends that his exposure to the risk of falling was a result of defendants’ failure to install or inspect for fall protection in the hallway. As explained above, whether defendants were responsible for plaintiffs exposure to that risk is a disputed question of fact. If Rossetto and Brown should have installed fall protection, or if Jones should have inspected for fall protection, then they controlled the risk-produсing activity. Woodbury,
In sum, the trial court erred in granting summary judgment for defendants on plaintiffs ELL claim because a genuine issue of material fact remains on plaintiffs theory that defendants had actual control over, or the right to control, the risk-producing activity.
Reversed and remanded.
Notes
We refer to Mark Jones in his individual capacity and as trustee of the Jones 1996 Family Trust as “Jones.”
The parties do not dispute that Jones was not required to have a contractors’ license in Oregon under the circumstances.
One or two “helpers” assisted Rossetto and Brown with the framing. The record does not dеmonstrate whether they were employees of Rossetto, Brown, both, or neither.
It is possible that Brown’s practice was based in OAR 437-003-1501, which sets out the fall-protection requirements authorized by the Oregon Safe Employment Act. That rule generally requires a direct employer to provide fall protection “when employees are exposed to a hazard of falling 10 feet or more to a lower level.” One exception to that general rule is the requirement of fall protection for employees “on established floors, mezzanines, balconies and walkways, with an unprotected side or edge 6 feet (1.8 m) or more above a lower level.” OAR 437-003-0510(3).
Plaintiff alleged that Jones was negligent in failing to provide fall protection along the hallway; failing to ensure that fall protection was installed; failing to warn plaintiff of the lack of fall protection; failing to properly supervise and inspect the site; failing to instruct Rossetto or Brown to install fall protection; and allowing other subcontractors like plaintiff to work in the absence of fall protection.
Plaintiff alleged that Rossetto and Brown were negligent in failing to construct or install fall protection; failing to warn plaintiff about the lack of fall protection; allowing other subcontractors like plaintiff to work in the absence of fall protection; and failing to properly inspect the site.
George v. Myers,
In affirming our holding in Boothby, the Supreme Court noted that, aside from Yowell, the defendant could not be hable to the plaintiff under ordinary foreseeability principles because it “neither had any right to control nor exercised any actual control over the way that [the decedent’s employer] operated the log loader.” Boothby v. D. R. Johnson Lumber Co.,
On appeal, as before the trial court, defendants do not contend that the rule that the Supreme Court applied in Boothby excuses them from liability as a matter of law. Furthermore, as discussed below, we conclude that whether defendants should have installed fall protection that would have prevented plaintiff’s injury or whether plaintiff’s employer was responsible for that task is a disputed issue of fact. That is, a fact question remains as to whether plaintiff’s injury was caused by plaintiff’s employer’s omission or defendants’ omission. Thus, in this case, the general rule articulated by the Supreme Court in Boothby does not justify the grant of summary judgment because it turns on the same factual issue that precludes аpplication of the Yowell doctrine as a matter of law.
Among other aspects of the Yowell doctrine, the parties dispute the significance of the fact that neither Rossetto nor Brown contracted with plaintiff’s employer. Plaintiff contends that the special relationship recognized by the Yowell doctrine does not extend beyond the contractual relationship between a defendant and a plaintiff’s employer; defendants remonstrate that it should. Because we conclude that a genuine issue of material fact remains to be resolved as to whether the risk of falling was inextricably intertwined with plaintiff’s expert task, we do not reach the significance of the lack of contractual relationship between plaintiff’s employer and Rossеtto and Brown.
ORS 654.305 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.”
The court suggested that our characterization of "the work involving risk or danger” in George was also too narrow. Woodbury,