Opinion
Civ. 2:21-cv-00216-SU
08-09-2021
SHANNON MEEK, as personal representative of the ESTATE OF JON MEEK, Plaintiff, v. ELIJAH MICHAEL WARD; CAMERON LEE MOLT; LOUIS P. MOLT; LOUIE'S CATTLE SERVICE, LLC; CVS, INC.; SILVIES VALLEY RANCH, LLC, Defendants.
FINDINGS & RECOMMENDATION
PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE
This wrongful death action comes before the Court on an Amended Motion to Dismiss filed by Defendants CVS, Inc. and Silvies Valley Ranch, LLC. ECF No. 37. The Court concludes that this case is suitable for resolution without oral argument. Defendants' Motion should be GRANTED and the claims against CVS, Inc. and Silvies Valley Ranch, LLC should be dismissed.
LEGAL STANDARD
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
BACKGROUND
Plaintiff Shannon Meek is the surviving spouse of Jon C. Meek and personal representative of his Estate. First Am. Compl. (“FAC”) ¶ 4.
Defendants CVS, Inc. and Silvies Valley Ranch, LLC are property owners in Harney County, Oregon. FAC ¶ 6. CVS and Silvies Valley Ranch hired Defendants Louie's Cattle Service, LLC and Louis Molt to bale hay and perform other farm work on CVS and Silvies Valley Ranch properties on August 2, 2020. Id. The work was being carried out by Defendant Elijah Ward, under the supervision of Defendant Cameron Molt. Id.
In the course of their work, Louie's Cattle Service needed to move a tractor and hay baler from one CVS and Silvies Valley Ranch property to a different property situated several miles to the north. FAC ¶¶ 6-7. The tractor and hay baler were owned by Louie's Cattle Services and/or Louis Molt. Id. at ¶ 7.
At 9:30 a.m., Ward drove the tractor on to U.S. Route 395C northbound with the hay baler in tow. Id. at ¶ 7-8. Cameron Molt remained behind to secure the southern property and did not immediately follow Ward. Id. at ¶ 8. Ward was fifteen years old at the time and was not qualified to operate the tractor. Id. at ¶ 6.
At the same time, Jon Meek was riding his motorcycle on U.S. Route 395C northbound. FAC ¶ 5. Meek caught up to Ward and tractor on a straight section of the highway located approximately at mile marker 42.5. Id. at ¶ 9. Passing was lawful in either direction on that stretch of the highway. Id. Meek attempted to pass Ward and the tractor. Id. As Meek was attempting to overtake the tractor, Ward began a left turn onto a private drive leading to CVS and Silvie Valley Ranch property. Id. Ward did not signal before making the turn. Id. at ¶¶ 12g, 15f. The two vehicles collided and Meek was thrown from his motorcycle onto the highway and then into a ditch. Id. at ¶ 10. Meek was airlifted to a hospital in Boise, Idaho but died of his injuries a few hours after the crash. Id.
DISCUSSION
Plaintiff brings claims for negligence and wrongful death against Louie's Cattle Services, Louis Molt, Cameron Molt, and Ward, but the present motion concerns Plaintiffs seventh claim for relief, which alleges negligence against CVS and Silvies Valley Ranch. FAC ¶¶ 35-40. CVS and Silvies Valley Ranch move to dismiss on the basis that they cannot be held vicariously liable for the acts of the other Defendants.
To state a claim for negligence under Oregon law, a plaintiff must show that the defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused the plaintiff harm. See, e.g., Fazzolari v. Portland. Sch. Dist. No. 1J, 303 Or. 1, at 14-17 (1987). In the absence of a specific duty created, defined, or limited by a specified status, relationship, or standard of conduct, “the issue of liability for harm resulting from 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.” Id. at 17. In this case, Plaintiffs seventh claim alleges that CVS and Silvies Valley Ranch owed Plaintiff a special duty as a result of vicarious liability for the acts of its independent contractor, Louie's Cattle Service, and the employees of that contractor in the use and operation of the tractor. FAC ¶¶ 39-40.
In general, the employer of an independent contractor is not liable for the contractor's negligence. Johnson v. Salem Title Co., 246 Or. 409, 413 (1967). This general rule is subject to a significant exception: “If the work to be done is ‘inherently dangerous,' the employer is liable for his contractor's negligence.” Id. (citation omitted). This exception is “based upon the principle that although an employer is not ordinarily liable for the acts of an independent contractor employed by him, this immunity from liability is not extended to an employer who orders work to be performed from which, in the natural course of things, injurious consequences must be expected to arise unless means are adopted by which such consequences may be prevented.” Kahl v. Texaco, Inc., 281 Or. 337, 342 (1978) (internal quotation marks and citation omitted).
Here, Plaintiff contends that the operation of the tractor and baler on the public highway “constitutes an activity and work that is inherently dangerous and presents a peculiar risk of harm to other motorists using the highway.” FAC ¶ 37. The claim will therefore turn on whether the activity being undertaken presented an inherent danger or risk, such that CVS and Silvies Valley Ranch may be held vicariously liable. Neither party has been able to present any controlling Oregon case law for the proposition that transporting farm equipment on the highway is an inherently dangerous activity, nor has the Court been able to locate any such authority.
In assessing whether an activity is inherently dangerous, Oregon courts have recourse to the Restatement (Second) of Torts (1965). See, e.g., Kahl, 281 Or. at 342-43. Sections 413, 416, and 427 of the Restatement “describe exceptions to the general rule that employers are not liable for the torts of independent contractors” and “address the nondelegable duty employers have for work that involves unusual dangers inherent in the work.” Ek v. Herrington, 939 F.2d 839, 843 (9th Cir. 1991). These sections “do not address ordinary dangers that are not special to the work at hand, and against which any careful contractor would take precautions, ” but are instead aimed at “‘special dangers to others which the employer knows or has reason to know to be inherent in or normal to the work.'” Id. (quoting Restatement (Second) of Torts, § 427). “Therefore, the threshold question for application of these exceptions to employer nonliability is whether the work poses a peculiar risk in its normal operation that must be countered with special precautions.” Id.
Comment b of § 413 of the Restatement provides further clarification:
It is obvious that an employer of an independent contractor may always anticipate that if the contractor is in any way negligent toward third persons, some harm to such persons may result. Thus, one who hires a trucker to transport his goods must, as a reasonable man, always realize that if the truck is driven at an excessive speed, or with defective brakes, some collision or other harm to persons on the highway is likely to occur. This Section has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work. Such precautions are the responsibility of the contractor . . . This Section is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions.Restatement (Second) of Torts, § 413 cmnt. b (emphasis added).
In this case, Plaintiff alleges that the fatal collision occurred because Ward “failed to take notice of Meek passing him in the lane to Ward's left and failed to give way to Meek and his motorcycle.” FAC ¶ 9. These are ordinary incidents of negligence, analogous to speeding or driving with defective brakes and are not dangers peculiar to or inherent in the driving of a tractor on a public highway or in the work CVS and Silvies Valley Ranch hired Louie's Cattle Service to perform. Indeed, Plaintiffs second claim for relief alleges that the accident was caused by Ward's failure to maintain a proper lookout and control and his failure “to use ordinary care under the circumstances to avoid causing significant risk of harm to other drivers.” FAC ¶ 15. Consistent with §§ 413, 416, and 427 of the Restatement (Second) of Torts, it is the contractor's duty to take precautions against such ordinary dangers, rather than the duty of the employer. CVS and Silvies Valley Ranch cannot be held vicariously liable for the negligence of Louie's Cattle Service or its employees as alleged in the FAC.
Accordingly, the Court concludes that CVS and Silvies Valley Ranch are entitled to dismissal of Plaintiff's claims and their motion should be GRANTED.
CONCLUSION
Defendants' Motion to Dismiss, ECF No. 37 should be GRANTED and Plaintiff's claims against Defendants CVS, Inc. and Silvies Valley Ranch, LLC should be DISMISSED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED.