Opinion
CV-01-1516-ST
September 5, 2002
OPINION AND ORDER
INTRODUCTION
On January 22, 2000, plaintiff, Joseph J. Harwood ("Harwood"), was injured when a row of shopping carts fell onto him outside the Wal-Mart store in St. Helens, Oregon. The impact propelled Harwood to the ground and caused his head to hit the paved parking lot. At the time, Harwood was a newly-hired stockman for the newly-opened Wal-Mart.
Harwood originally filed this action on or about September 12, 2001, in Multnomah County Circuit Court, Harwood v. Black Hawk, Inc., et al., Civil Case No. 0109-09256, against defendants Blackhawk, Inc., dba Columbia Contracting Company ("Blackhawk") and Colorado Structures, Inc., dba CSI Construction Company ("CSI"). CSI was the general contractor supervising the construction of the Wal-Mart store and had hired Blackhawk as the painting subcontractor. Harwood alleges that CSI instructed Blackhawk to move the shopping carts so that Blackhawk could finish painting one of the exterior walls of the building, and that in moving the carts, Blackhawk left them precariously balanced on the side of the sidewalk, ultimately resulting in his injury. Harwood alleges claims under Oregon's Workers' Compensation laws (ORS Chapter 656) and Employers' Liability Act ("ELA") (ORS Chapter 654) against CSI and Blackhawk. Blackhawk filed a Notice of Removal to this court on October 12, 2001, alleging jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
Harwood resides in Oregon. Notice of Removal, p. 1. Although "residence" does not equal "citizenship" for purposes of diversity jurisdiction, and the Notice of Removal does not allege Harwood's citizenship, this court assumes, without deciding, that Harwood is also a citizen of Oregon for purposes of diversity jurisdiction based on the lack of any jurisdictional challenge. CSI is a Colorado corporation. Blackhawk is a Washington corporation. The amount in controversy exceeds $75,000, exclusive of interest and costs. Thus, this court has jurisdiction pursuant to 28 U.S.C. § 1332.
"It is black letter law that, for purposes of diversity, `[r]esidence and citizenship are not the same thing.'" Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 774 (9th Cir. 1995), citing Mantin v. Broadcast Music, Inc., 244 F.2d 204, 206 (9th Cir. 1957).
All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). Now pending before this court are CSI's Motion for Partial Summary Judgment (docket #22) and Blackhawk's Motion for Partial Summary Judgment (docket #25). For the reasons that follow, both motions are granted.
STANDARDS
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied, 493 U.S. 809 (1989) (emphasis in original) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir. 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually "implausible, that party must come forward with more persuasive evidence than would otherwise be [required]. . . ." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert denied, 484 U.S. 1006 (1988) (emphasis in original) (citation omitted). The Ninth Circuit has found, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
ANALYSIS I. Undisputed Facts
Some time prior to January 2000, Wal-Mart entered into a contract with CSI to build a new retail store in St. Helens, Oregon. Pursuant to that contract, CSI was responsible for supervision and direction of the work, including coordination of all portions of construction and job site safety until the construction project was entirely completed. CSI also obligated itself to provide a competent superintendent who would be in attendance at the Wal-Mart construction project site during performance of construction work.
CSI hired Blackhawk as a painting subcontractor to paint the interior and exterior of the Wal-Mart. The subcontract specified that any communications between the subcontractor and owner were to go through CSI. If the Wal-Mart general manager had a question or concern about the work performed by the painters, he communicated that information to CSI's on-site superintendent, Jerry Martin ("Martin"). The Wal-Mart general manager only communicated with the painters on one occasion, regarding moving a Wal-Mart fixture inside the store.
CSI completed the Wal-Mart project, except for punch list items, and turned the building over to Wal-Mart for possession in late November or early December 1999. Once possession was turned over to Wal-Mart, a punch list was created, with the goal to complete all items on the punch list by the store opening. The subcontractors were directed to complete any items for which they were responsible on the punch list.
The shopping carts involved in the accident were Wal-Mart property and had been delivered to the store a few weeks prior to the accident. The carts were placed alongside the exterior of the building.
Some time before the Wal-Mart store opened, Blackhawk painters returned to the store to re-paint a portion of the store exterior that was damaged by rain. The shopping carts that ultimately fell on Harwood were against the wall the painters needed to paint, blocking access to the area. A Blackhawk painter told Martin that the carts had to be moved. Martin told Blackhawk's painters that Blackhawk would have to move the carts. At least one week prior to the accident, four rows of shopping carts were moved away from the side of the Wal-Mart building, creating an area of three to four feet between the wall and the carts, allowing the painters access to the wall. One of the four rows was straddling the curb, with one row of carts in the parking lot and two rows on the walkway adjacent to the building. The carts remained in this configuration up until the time of the accident.
On January 21, 2000, the day before the accident, Gabe Goodwin, Project Manager of CSI's Northwest Operations, sent a letter to Blackhawk stating:
If the following items are not completed by Sunday, January 23, 5:00 p.m., CSI will perform them for you and backcharge you accordingly, including but not limited to any overhead and extended labor costs:
• Overstock product for Wal-Mart store. —
— 5 gallons for each sales floor paint —
— 2 gallons each of paint used in Pharmacy
All per the specification book. The Manager will not sign this store off until the product is on site and he has verified that it is there.
• Paint door in the restroom adjacent to Radio Grill.
• Paint dutch door tray in Pharmacy.
Martin generally staffed the general contractor's work station on Saturdays, but was not on-site on Saturday, January 22, 2000. Martin had notified Wal-Mart general manager, Todd Berner ("Berner"), that he was going on a scuba diving trip that weekend in the San Juan Islands near Seattle.
Wal-Mart hired Harwood as a stockman in January of 2000, at the St. Helens store. His job duties included bringing shopping carts back inside the store from the cart corrals in the parking lot and assisting customers with "carry-outs."
Berner noticed that one of the rows of carts was straddling the curb in the week prior to the accident. Chris Kaleta, another Wal-Mart employee, noticed this as well. On January 21 or 22, 2000, Berner instructed his employees to move the four rows of shopping carts into the store in preparation for the store opening. He did not advise any of his employees or assistant managers about the carts straddling the curb. He did not believe the carts posed a risk of danger to anyone.
On January 22, 2000, Harwood and another Wal-Mart employee, Steve Crick ("Crick") proceeded to move the shopping carts after first discussing how. Harwood and Crick were attempting to move the line of carts in the row that was located on the parking lot supporting the row of carts that were straddling the curb when the row of carts straddling the curb fell down and onto Harwood. Harwood was knocked to the ground and his head and body struck the ground.
After the accident occurred, the Wal-Mart employees removed more than 10 carts off of Harwood. Wal-Mart has a policy that more than 10 carts should not be moved together at one time. Wal-Mart policy also directs employees to use cart leashes when moving carts. However, Berner testified that use of a cart leash and limiting the number of carts moved to no more than 10 would not have changed the fact that the carts straddling the curb would fall over when the supporting carts were moved.
II. Employer's Liability Act Claim
Defendants move for summary judgment against Harwood's Second Claim for Relief under Oregon's Employer Liability Act ("ELA"), ORS 654.305. That statute provides as follows:
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.
Defendants argue that they are entitled to summary judgment against Harwood's ELA claim because: (1) the work of moving shopping carts that Harwood was performing did not involve "a risk or danger" as that term is interpreted under the ELA; and (2) they were not Harwood's employers for purposes of the ELA.
A. "Risk or Danger"
Citing Richardson v. Harris, 238 Or. 474, 478, 395 P.2d 435, 437 (1964) and Union Oil Co. of Cal. v. Hunt, 111 F.2d 269, 274 (9th Cir. 1940), defendants argue that the ELA only covers work which is "inherently dangerous" or involves "dangers which are uncommon." Defendants contend that they are entitled to summary judgment against Harwood's ELA claim because the work of moving shopping carts involves no such inherent or uncommon danger.
One need look no further than the workers' compensation insurance premium charts to determine that, as a general proposition, the work of a stock clerk in a retail store of stocking shelves, assisting customers, and (as here) moving shopping carts, does not typically involve the kind of risk faced by a faller in a logging camp, a sawmill worker on the green chain, or a powder-monkey in a mine. Nevertheless, Harwood argues that the work he was performing falls within the ambit of the ELA because: (1) there is a fact question as to whether the specific work he was doing at the time of his injury was sufficiently dangerous to be covered by the ELA; and (2) the danger which he faced at the time was partially concealed from him.
At the time of his injury, Harwood was attempting to move a line of shopping carts. Unfortunately, that particular line of shopping carts was supporting another line of shopping carts that was balanced partially on the sidewalk. That second line of carts apparently tumbled when Harwood moved the supporting line of carts. And at least for purposes of the present motions, it is undisputed that Blackhawk put the shopping carts in this precarious balance.
When evaluating whether the work involved risk or danger, the Oregon courts focus on the particular work that the employee is performing at the time of the injury. The most recent cases look not at the general category of work, but instead at the particular "risk-producing activity." Woodbury II v. CH2M Hill, Inc., 173 Or. App. 171, 178, 21 P.3d 153, 157, (2001), review allowed, 333 Or. 73, 36 P.3d 974 (November 27, 2001) ("the `risk-producing activity' was the disassembly of the platform"); George v. Meyers, 169 Or. App. 472, 477, 10 P.3d 265, 269 (2000), review denied, 331 Or. 692, 26 P.3d 149 (2001) (discussing whether defendant retained control over the particular "`risk-producing activity' of moving the bundle of lumber").
The use of the phrase "inherent danger" suggests that whether a specific "risk-producing activity" involves sufficient "risk or danger" for ELA coverage should not turn on the degree of negligence of the defendant. Nevertheless, the Oregon Supreme Court has specified that the question of whether the particular work the employee was performing involves "risk or danger" is a fact question for a jury. Quick v. Andresen, 238 Or. 433, 439-40, 395 P.2d 154, 157 (1964) (holding that working on a ladder over 10 feet high picking cherries could be within the ELA). In addition, it has "stressed that it is the particular work being done at the time, not the general type of employment, that determines risk or danger." Id at 440, 395 P.2d at 158, citing Barker v. Portland Traction Co., 180 Or. 586, 173 P.2d 288 (1946). Moreover, in Richardson, the Oregon Supreme Court indicated that the "risk or danger" requirement is satisfied where, under all the circumstances, the employee faced a "dangerous condition." Richardson, 238 Or at 477, 395 P.2d at 436-37 (holding that risk of falling from a ladder, while climbing in a hurry, combined with the manner in which the ladder was attached to the wall and the structures projecting into the climbing space, could be within the ELA).
This court is troubled by this sweeping interpretation of the "risk or danger" requirement as it seems to provide the plaintiff with the ability to pursue an ELA claim directly proportional to the degree of negligence of the defendant. If the defendant negligently created a "dangerous condition" (such as placing the shopping carts in a precarious position), the plaintiff would ipso facto satisfy the "risk or danger" requirement without reference to the "inherent danger" involved in the work the plaintiff was performing at the time of the injury.
Here the record reveals a factual dispute over whether Harwood faced a "dangerous condition" when he attempted to move the shopping carts. According to Harwood, the danger was not obvious and not preventable by following Wal-Mart's policy of using a cart leash and limiting the number of carts moved to 10. According to defendants, Wal-Mart's general manager noticed that one of the rows of carts was straddling the curb in the week before the accident and did not believe they posed a risk of danger to anyone. Thus, summary judgment on the basis that the work he was performing did not involve "risk or danger" is inappropriate. Nevertheless, for the reasons that follow, this court finds that defendants are entitled to summary judgment on the basis that they did not, as required by the ELA, have "charge of, or responsibility for" the work Harwood was performing at the time of his injury.
B. "Charge of" or "Responsibility for" Harwood's Work
A plaintiff who is not directly employed by the defendant may nonetheless recover against any person having "charge of, or responsibility for" the work the plaintiff was performing when the injury occurred. ORS 654.305. Such "indirect" employer liability "is triggered if any of three conditions is satisfied: (1) plaintiff's direct employer and defendant are engaged in a `common enterprise'; (2) defendant retained the right to control the manner or method in which the risk-producing activity was performed; or (3) defendant actually controlled the manner or method in which the risk-producing activity was performed." Woodbury II, 173 Or App. at 177, 21 P.3d at 156-57 (citation omitted).
Harwood does not contend that Wal-Mart and defendants were engaged in a "common enterprise" and nothing in the record supports such a conclusion. Instead, Harwood argues that defendants retained the right to control, or in fact actually controlled, the manner or method in which he moved the shopping carts which resulted in his injury. This court disagrees.
The most recent Oregon case on the ELA, Woodbury II, focuses on the "manner or method in which the risk-producing activity was performed." Here, as discussed above, the specific risk-producing activity performed by Harwood was moving of shopping carts which Blackhawk allegedly placed in a precarious position.
The Oregon Supreme Court has accepted review of this Oregon Court of Appeals decision. Should the Oregon Supreme Court reverse the Oregon Court of Appeals, Harwood may seek reconsideration of this court's decision which relies heavily on Woodbury II and predecessor decisions by the Oregon Court of Appeals since Richardson, the last ELA decision by the Oregon Supreme Court discussing this issue nearly 40 years ago.
Defendants seek to avoid liability by arguing that this activity was under Wal-Mart's control because the building was under Wal-Mart's control. The parties strenuously debate the significance of the contractual terms and the status of completion of the contract between Wal-Mart and CSI. CSI points out that Wal-Mart had already taken possession of the building. However, it is undisputed that CSI was continuing to complete a punch list on the date Harwood was injured. Thus, at least on those facts, the building was not solely under Wal-Mart's control.
However, that fact alone does not save Harwood's ELA claim. It is also undisputed that Wal-Mart owned the shopping carts. Thus, unlike the situation in Blaine v. Ross Lumber Co., 224 Or. 227, 355 P.2d 461 (1960), the instrumentality of the injury was not job-related equipment or supplies owned by defendants. Instead, Blackhawk, in an effort to access a wall it needed to paint to complete its contractual obligations, allegedly moved the shopping carts into a dangerous configuration where they remained for several days or weeks. Then, Harwood, at the behest of his direct employer, Wal-Mart, moved some of the carts, causing other carts to fall on top of him, injuring him.
Perhaps the most fatal defect in Harwood's ELA claim is the expansive coverage that would be afforded were the premise of his ELA claim accepted. Because the shopping carts were owned by Wal-Mart and located on its property, it is indisputable that Wal-Mart enjoyed the right to instruct its employees to move the shopping carts. Blackhawk, as the painting subcontractor, moved the shopping carts out of the way because they were interfering with Blackhawk's ability to complete its painting. However, having taken control of the shopping carts for that limited purpose, Blackhawk did not indefinitely retain a right to control the manner or method in which the shopping carts were thereafter moved. Although arguably placed in a precarious configuration, the shopping carts no longer prevented Blackhawk from completing its work. Analytically then, the shopping carts were no different than any other Wal-Mart owned fixture or piece of equipment on the premises. Carried to its logical extreme, allowing an ELA claim on these facts would permit an ELA claim any time an injury was caused by something on the job site during the period of time that the general and subcontractor were still completing their punch list, without regard to ownership of the injury-causing instrumentality.
Harwood cites Clayton v. Enterprise Elec. Co., 82 Or. 149, 161 P. 411 (1916) and Blaine, supra, for the proposition that ELA liability still may attach despite the defendant's lack of control over the plaintiff's work and despite defendants' absence from the job site at the time of the plaintiff's injury. Based on those cases, Harwood contends that defendants are liable despite the fact that his direct employer, Wal-Mart, directed him to move the carts, and despite the fact that defendants were not at the job site on the date of his injury. However, Clayton and Blaine are distinguishable. In those cases, the "instrumentality" of the injury (namely, the electrical switch in Clayton and the logging machinery in Blaine) were either owned by or under the responsibility or control of the defendant. In Clayton, the court rejected the defendant's argument that it did not own the switch and therefore could not be found liable:
This connection, gate, or switch was not beyond the border line of the responsibility or control of the electric company. Whatever may be said about the control or liability for the management of the electric energy on the motor side of the connection or switch, or whoever may have borne the expense of the wiring next to the motor, or the installation of the delivering appliances or switch, . . . it was the duty of the electric company installing the switch and making the connection for power purposesto use every device, care, and precaution which it was practicable to use for the protection and safety of life and limb in the transmission of this subtle and dangerous element.
Clayton, 82 Or at 165, 161 P at 416.
Similarly, in Blaine, the defendant's failure to furnish safe machinery or take measures to prevent untrained personnel to handle its machinery opened the defendant up to an ELA claim:
The defendant's failure to furnish safe machinery was a contributing cause of the accident. . . . There was evidence from which one might infer that a custom had developed for drivers to operate the winch. While the company may not have approved, it took no active steps to stop the practice. . . . The custom of having truck drivers unload their own logs was beneficial to the defendant. Furthermore, the defendant must have realized that these drivers, in the absence of clear-cut warning or supervision, would undertake self-help and the risk involved in permitting untrained personnel to handle defective machinery was neither remote nor unforeseeable. The Employers' Liability Law does not contemplate merely that machinery shall conform to standards of safety if used in a particular way, but that it shall be safe for all uses to which it is customarily put.
Blaine, 224 Or at 239, 355 P.2d at 466-67.
Despite nearly a century of ELA jurisprudence, none of the cases interpreting Oregon's ELA involve facts directly analogous to those here. However, the cases with facts most closely aligned with the facts of this case are those where the defendant brought supplies onto the job site and then departed, such as Steiner v. Beaver State Scaffolding Equip. Co., 97 Or. App. 453, 777 P.2d 965 (1989) (scaffolding) and Dingell v. Downing Gilbert, Inc., 81 Or. App. 545, 726 P.2d 937 (1986), review denied, 302 Or. 614, 733 P.2d 449 (1987) (wallboard). In those cases, the Oregon Court of Appeals emphasized that ELA liability is conditioned upon some modicum of continuing control over the instrumentality of the injury or some nexus between the defendant and the plaintiff's work activity or work-related use of goods or equipment. Steiner, 97 Or App. at 457-58, 777 P.2d at 967; Dingell, 81 Or App. at 551, 726 P.2d at 941; see also Quackenbush v. Portland Gen. Elec. Co., 134 Or. App. 111, 894 P.2d 535, review denied, 322 Or. 193, 903 P.2d 886 (1995) (finding no ELA liability by company that pruned tree around electrical wire). In this case, neither of these factors is present.
CSI exercised control over the shopping carts when it instructed Blackhawk to move them to access the wall. Similarly, Blackhawk exercised control over the shopping carts while moving them away from the wall that Blackhawk intended to paint. However, they did not retain control or exercise actual control at the time of Harwood's injury. While the unfortunate chain of events of this case, viewed for purposes of the present motions in Harwood's favor, establishes a causal link between Harwood's injury and defendants' actions of ordering the shopping carts to be moved and placing the shopping carts in a precarious position, that alone is not enough for an ELA claim. As succinctly stated in Dingell, "the dispositive question is one of statutory duty, not one of causation." Dingell, 81 Or App. at 551, 726 P.2d at 941.
In sum, there is no basis to conclude that either CSI or Blackhawk is liable under Oregon's ELA as Harwood's indirect employer.
ORDER
For the reasons stated above, CSI's Motion for Partial Summary Judgment (docket #22) and Blackhawk's Motion for Partial Summary Judgment (docket #25) against the Second Claim for Relief are GRANTED.