Opinion
Civil No. CV 00-129-HA
July 10, 2001
Mary Ellen Page Farr, Ted E. Runstein, Jennifer S. Kampsula, Portland, OR, for Plaintiff.
Paul R. Xochihua, Nicole M. Rhoades, Alan Gladstone, Abbott, Davis, Rothwell, Mullin Earle, P.C., Portland, OR, for Defendant.
OPINION AND ORDER
PROCEDURAL BACKGROUND
Plaintiff filed his complaint against C M Construction on January 26, 2000, alleging negligence and violations of the Employers Liability Act and the Safe Employment Act. Defendant filed for summary judgment on March 15, 2001, and on April 3, 2001, Plaintiff filed a motion to strike testimony from the summary judgment record. Oral argument for these motions was heard on June 27, 2001
FACTUAL BACKGROUND
Plaintiff, a dump truck operator, was injured when his truck overturned while unloading rock at defendant C M Construction, Inc.'s ("C M") job site on or about September 17, 1999. At the time, plaintiff was an employee of Pacific Rock Products, LLC ("Pacific Rock"). Pacific Rock produces and delivers crushed aggregate, asphalt, and concrete. Before working at Pacific Rock, plaintiff had not driven a dump truck, although he has been driving large trucks since he was 15. Plaintiff began working for Pacific Rock in 1998, but was laid off after a few months. During that time, plaintiff drove a truck similar to the one he was driving on the day of the accident. After being laid off, plaintiff worked for a couple of other companies as a truck driver, then returned to Pacific Rock in April 1999.
The only source of training plaintiff received for driving a dump truck such as the one he was driving on the day of the accident was provided by Pacific Rock. Plaintiff states that normal delivery procedure includes bringing the rock to the job site and asking the contractor where he wants the rock dumped. Although plaintiff relies on the contractor to select the dump site, plaintiff makes his own decision as to whether the site is safe to dump. Defendant's employees attended meetings and received manuals addressing safety concerns about the trucks and proper dumping procedure.
On the day of the accident, plaintiff arrived at C M's work site, got out of his truck and asked an employee of C M where he was to put the rock. Plaintiff had never before made any dumps in the area where the accident occurred. Plaintiff was told to drive up a hill to ask another employee where exactly to dump the rock. C M was in the process of excavating trenches at the top of the hill so it could install underground utilities. Once plaintiff arrived at the top of the hill, plaintiff got out of his truck again and discussed with C M employees Scott McLeod ("McLeod") and Robert Gallagher ("Gallagher") where to put the rock. One C M employee told plaintiff he wanted the rock left across from a ditch. Plaintiff told the employee he could not cross the ditch to dump the rock, and would dump the rock where he was at. Plaintiff realigned his truck, and then a C M employee directed plaintiff into the area where he wanted the rock dumped. Prior to backing into the dumping spot, plaintiff told a C M employee that if he was uncomfortable dumping in a certain area, he would tell them. Immediately before plaintiff lifted the box of his truck, all the wheels were still on the road surface. Plaintiff acknowledges that he did not know the actual percentage angle of the slope he was dumping on, but has dumped on steeper angles before. No one questioned plaintiff whether he wanted to reposition his truck so that it was on less of an incline.
After plaintiff positioned the truck, he released the gates on the truck, turned on the power takeoff and raised the box. Before it got halfway up, the truck turned over and plaintiff was injured. After the accident, and while waiting for the paramedics, a witness at the scene assisted plaintiff and told him the ground was soft at the place where he was dumping. Later, while plaintiff was in the hospital, Pacific Rock employees Jody Brammell ("Brammell") and Jim Barrett ("Barrett") told plaintiff his passenger side drive wheels sank into the ground at least a half a foot before his truck went over. Pacific Rock later terminated plaintiff after an accident review board determined the accident occurred because plaintiff's truck was on a six percent grade.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant moves for summary judgment against plaintiff's complaint, and also on grounds of comparative fault.
There was a dispute as to whether Pacific Rock's relationship with C M was as a supplier, or as a subcontractor. However, at oral argument, plaintiff's counsel conceded that Pacific Rock was a supplier for the defendant.
STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Whether there exist any genuine issues of material fact is a preliminary question for the court in determining if trial is necessary because a factual question may "reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the evidence is insufficient for a jury to return a verdict for the nonmoving party, then summary judgment may be granted. Id. at 249; see also Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986). The court must resolve all reasonable doubts about the existence of a material factual issue against the moving party. T.W. Elec. Serv v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987).STANDARDS FOR EMPLOYER LIABILITY ACT
The purpose of the Employers Liability Act ("ELA") is to require that employers ensure job safety to their employees, particularly when the work activity involves risk or danger. Steiner v. Beaver State Scaffolding Equip. Co., 97 Or. App. 453, 457 (1989), 777 P.2d 965, 967; Sacher v. Bohemia Inc., 302 Or. 477, 481 (1987). The Act states in part:
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. . ..
ORS 654.305 et seq. The ELA does not provide a claim for members of the general public, so in order for plaintiff to state a claim, there must be some connection between the injured employee's work and the defendant employer's work. Sacher, 302 Or. at 481. The Oregon courts have identified three situations in which a defendant is subject to the ELA for injuries to an "indirect employee," or a person not an employee of the defendant:
1. When the defendant and the injured employee are engaged in a common enterprise ("common enterprise" test);
2. When the defendant retained the right to control the instrumentality that caused the harm to the injured person ("retained control" test);
3. When the defendant actually controlled the instrumentality that caused the harm to the injured person ("actual control" test).
See generally Wilson v. Portland Gen. Elec. Co., 252 Or. 385 (1968). In order to satisfy the "common enterprise" test, the plaintiff must satisfy four elements: 1) that the plaintiff and the defendant participated in a project of which defendant's operations were integral or component parts; 2) the work involved a risk of danger to employees or the public; 3) plaintiff was an adopted or intermingled employee of defendant; and 4) "defendant had charge of, or responsibility for, the activity or the instrumentality that caused the plaintiff's injury." Sacher, 302 Or. at 486-87. The plaintiff and defendant must further share an "intermingling of duties and might accrue from the accomplishment of the task." Dingell v. Downing-Gilbert, Inc., 81 Or. App. 545, 548 (1986) (quoting Thomas v. Foglio, 225 Or. 540, 547 (1961)). Plaintiff must also put forth evidence of a "causal link between the defendant's involvement in joint work and plaintiff's injury." George v. Myers, 169 Or. App. 472, 477 (2000) (quoting Brown v. Boise-Cascade Corp., 150 Or. App. 391, 397 (1997)). On the other hand, in order to state a claim under the "retained control" theory, the plaintiff must set forth sufficient evidence that "defendant retained control over the method and manner" of plaintiff's performance and the "risk-producing" activity. George, 169 Or. App. at 477; Brown, 150 Or. App. at 398.
When the plaintiff is an "indirect employee" of the defendant, summary judgment for an ELA claim is appropriate only if the defendant did not exercise sufficient control over the plaintiff under any of the three tests laid out in Wilson. George, 169 Or. App. at 476 (citing Miller v. Georgia-Pacific Corp., 294 Or. 750 (1983)). If the plaintiff is able to set forth sufficient evidence such that an objective reasonable juror could find that the defendant was liable to the plaintiff under the ELA, and that the defendant had undertaken supervision and control of safety at the job site, summary judgment is inappropriate. German v. Murphy, 146 Or. App. 349, 352 (1997).
DEFENDANT'S MOTION ON ELA CLAIM
Defendant argues that summary judgment is appropriate in this case because Pacific Rock was merely a supplier for C M, not a subcontractor. Normally, the ELA does not apply to a plaintiff who merely supplies or delivers product to the defendant. See Dingell, 81 Or. App. at 549. In Dingell, the court noted that the defendant had no charge of or responsibility for the work out of which plaintiffs' injuries arose. See id. at 548. It is undisputed that the ELA does not apply unless the defendant has "charge of" or is "responsible for" the work out of which plaintiff's injury arose. Thomas, 225 Or. at 545-46; ORS 654.305.
Defendant argues that because it did not have any control over the manner in which plaintiff dumped the rock, the ELA is inapposite. This court agrees. Defendant had neither the authority nor the right to tell plaintiff how to dump the rock. Regardless of where defendant wanted the rock dumped, plaintiff dumped only where he felt comfortable. Therefore, there are no genuine issues of material fact and defendant's motion for summary judgment as to the ELA claim is granted.
STANDARDS FOR SAFE EMPLOYMENT ACT
The Safe Employment Act ("SEA") was promulgated to assure safe and healthful working conditions in all places of employment, particularly in those involving risk or danger to the employees. Miller, 294 Or. 750, 759 (1983). The SEA states in part:
Every employer, owner, employee and other person shall obey and comply with every requirement of every order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services in connection with the matters specified in ORS 654.001 to 654.295 and 654.750 to 654.780, or in any way relating to or affecting safety and health in employments or places of employment, or to protect the life, safety and health of employees in such employments or places of employment, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, standard, rule or regulation.
ORS 654.022. The SEA normally applies only to direct employees. George, 169 Or. App. at 478-79.
DEFENDANT'S MOTION ON SEA CLAIM
Defendant contends it is not liable under the SEA because it was neither an "owner" or in control of plaintiff's place of employment at the time of the injury. Defendant argues it had no right to control plaintiff or the dump truck, and exercised no actual control over either. This court agrees. Defendant was not plaintiff's employer, and did not exercise control over plaintiff's truck. For these reasons, there are no genuine issues of material fact and defendant's motion for summary judgment based on the SEA is granted.
STANDARDS FOR NEGLIGENCE
A claim for negligence requires the showing of four elements: 1) that the defendant owed a duty to the plaintiff; 2) the defendant breached that duty; 3) plaintiff was harmed resulting in damages; and 4) the breach of the duty caused the harm. Solberg v. Johnson, 306 Or. 484, 490-91 (1988). A general duty of care is presumed and the negligence analysis examines only whether a defendant's conduct "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Fazzolari v. Portland School Dist. 1J, 303 Or. 1, 17 (1987). However, a possessor of land owes a heightened obligation to one who comes onto the land as a business invitee. See Woolston v. Wells, 297 Or. 548, 557-58 (1984). A business invitee is a "person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Walsh v. C K Market, Inc., 171 Or. App. 536, 540 (2000). The possessor must also exercise care to discover conditions of the premises that create an unreasonable risk of harm to the invitee, and eliminate the condition creating that risk or warn of that risk. Woolston, 297 Or. at 557-58.
DEFENDANT'S MOTION ON NEGLIGENCE CLAIM
Defendant relies on the "specialized contractor" theory to relieve itself of liability. According to this theory, a defendant who orders "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" that the third party possesses. George, 169 Or. App. .at 485-86 (citing Yowell v. Gen. Tire Rubber, 260 Or. 319, 325-26 (1971)). However, defendant's position contradicts its prior assertion that plaintiff is not a specialized contractor, but merely a supplier. Furthermore, even if plaintiff were a specialized contractor, there are genuine issues of material fact as to whether the soft soil was a known dangerous condition, and whether plaintiff had special expertise or knowledge regarding dumping on soft soil.
Defendant also argues that even if it did owe a duty to plaintiff by virtue of a business-invitee relationship, it did not act in a manner that caused foreseeable harm to plaintiff. Defendant asserts that because plaintiff's evidence of foreseeable harm is based on heresay and speculation, it is insufficient to withstand a motion for summary judgment. It is well established that a plaintiff must present evidence beyond conjecture or speculation to indicate that the defendant was the proximate cause of the injury. Senn v. Merrell-Dow Pharm. Inc., 305 Or. 256, 260 (1988) (quoting Simpson v. Hillman, 163 Or. 357, 364 (1940)). However, as long as it is fairly and reasonably inferable from the evidence presented that defendant caused foreseeable harm to plaintiff, summary judgment is not appropriate. See id.
Plaintiff has set forth sufficient evidence beyond mere conjecture or speculation to indicate that defendant was the proximate cause of plaintiff's injury. Plaintiff has provided testimony that suggests plaintiff's rear tires sank into the soft soil causing plaintiff's injury, as well as photographs showing the piling of dirt around the area behind the truck, and comments by witnesses testifying the ground was soft. Plaintiff has set forth sufficient evidence creating genuine issues of material fact as to whether defendant owed a duty to plaintiff, whether defendant breached that duty, and whether defendant caused foreseeable harm to plaintiff. Therefore, defendant's motion for summary judgment as to the negligence claim is denied.
STANDARDS FOR COMPARATIVE NEGLIGENCE
Oregon has abolished the common law system of contributory negligence, and replaced it with the system of comparative fault. See ORS 18.470(1). Under this section, comparative fault is not a bar to recovery if plaintiff's fault is not greater than defendant's. Id. Rather, damages are diminished in proportion to plaintiff's percentage of fault. Id. It is typically the province of the jury to determine whether plaintiff was comparatively at fault. See ORS 18.470(2). Accordingly, defendant's motion for summary judgment is denied.
STANDARDS FOR ADMISSIBILITY OF EXPERT TESTIMONY
Plaintiff has submitted expert testimony to support plaintiff's assertion that the injury occurred as a result of plaintiff's rear tire sinking into the soft soil. See Affidavit of Robert E. Stearns in Plaintiff's Concise Statement of Facts. Plaintiff's expert, Robert Stearns ("Stearns"), has testified as an expert in cases related to collision reconstruction and trucking. Id. In preparing for his testimony, Stearns inspected the truck at issue, spoke with the manufacturer, and conducted mathematical calculations. Id. He concluded that a slope of four percent, without additional force, would be insufficient to cause plaintiff's truck to roll over. Id. In fact, Stearns concludes the rear tires must have been on soil which was soft enough to allow the tires to drop, causing a sudden weight shift in the load, thus turning the truck over. Id.
The Federal Rules of Evidence set forth the standard for admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. Federal Rule of Evidence 702 was amended in response to a case that set forth non-dispositive factors for the court to consider when deciding whether to accept expert testimony. See Fed.R.Evid. 702 advisory committee notes, 2000 amendment; Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). These factors provide a checklist for courts to use in assessing the admissibility of evidence, and establish the court's role as gatekeeper to exclude unreliable expert testimony. See Daubert, 509 U.S. at 594-95; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999). This does not mean the court's discretion can serve as a replacement for the adversary system. United States v. 14.38 Acres of Land More or Less Situated in Lefore County, Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). Additionally, Rule 702 was not intended to provide an excuse for an automatic challenge to the testimony of every expert witness. See Kumho, 526 U.S. at 152. The specific factors proposed in Daubert are:
(1) whether the expert's technique or theory can be or has been tested — that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community.
Advisory Committee Notes on Proposed Fed.R.Evid. 702.
In order to survive a motion for summary judgment, the plaintiff must show by a preponderance of the evidence that the admissibility requirements are met. See Daubert, 509 U.S. at 592 n. 10; Bourjaily v. United States, 483 U.S. 171, 172-73 (1987). The admissibility requirements are met if there is sufficient evidence beyond simply stating that defendant's negligence could possibly have been the cause of the injury. Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir. 1980).
Plaintiff's expert is not an engineer, and is not qualified to testify regarding the cause of this accident. Absent Stearns' specialized knowledge in the field of engineering, it is unlikely (1) Stearns' testimony is based upon sufficient facts or data; (2) his testimony is the product of reliable principles and methods; and (3) he has applied the principles and methods reliably to the facts of this case. For these reasons, it is unlikely Stearns' testimony would be helpful to the trier of fact, thus making it irrelevant and unreliable under Daubert's standards. See Daubert, 509 U.S. at 589. Accordingly, this court finds plaintiff's expert, Mr. Stearns', testimony inadmissable.
PLAINTIFF'S MOTION TO STRIKE
Plaintiff moves to strike several statements submitted by defendant in defendant's Motion for Summary Judgment because the statements are either inconsistent with what the party actually saw, or is impermissible opinion testimony. The Federal Rules of Evidence provide that if a lay witness is testifying, his opinions are limited to those which are rationally based on his perception, and helpful to understanding facts or issues in the case. Fed.R.Evid. 701.
STANDARDS FOR MOTION TO STRIKE
A court may strike testimony if it presents "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "Immaterial" is defined as any statement that has "no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). "Impertinent" is defined as any statement that does not pertain to, and is not necessary to the issues in question. Id. In motions to strike, the court must view the facts most favorably to the nonmoving party. Bank Tejarat v. Varsho-Saz, 723 F. Supp. 516, 517 (C.D.Cal. 1989).
"[T]he function of a 12(f) motion to strike is to avoid due expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, 984 F.2d at 1527 (quoting Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, motions to strike are disfavored and should not be granted unless it is clear that the testimony stricken bears no possible relationship to the controversy and may prejudice the other party. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 201 n. 1 (D.C. Cir. 1981); 2 Moore's Federal Practice p. 2317, § 12.21; 1 Barron and Holtzoff, Federal Practice and Procedure, § 367. In fact, motions to strike should only be granted if the testimony is insufficient as a matter of law, or if it unfairly presents questions of law or fact. Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977).
Plaintiff offers no sufficient evidence to support a conclusion that any of the disputed testimony is "immaterial" or "impertinent." The opinions expressed are not rationally based on the witness' perception, and they would not be helpful to understanding the facts or issues in the case. In viewing the facts most favorably to the defendant, the disputed testimony does bear some relation to the controversy, and would not unduly prejudice the plaintiff's case. Plaintiff's motion to strike is denied.
CONCLUSION
Defendant's motion for summary judgment is granted in part (doc. # 23). There are no genuine issues of material fact as to the ELA or SEA claims. However, there still exists factual issues as to the negligence claim. Additionally, plaintiff's expert testimony by Mr. Stearns is deemed inadmissible, and plaintiff's motion to strike is denied.
IT IS SO ORDERED.