The Supreme Court affirmed the trial court's dismissal of plaintiff's common law negligence claim but reversed dismissal of plaintiff's claim based on its ELL theory of liability. Yeatts v. Polygon Northwest Co. , 360 Or. 170, 197-98, 379 P.3d 445 (2016) ( Yeatts I ). The court focused on the text in the "General Terms and Conditions" of the contract requiring Wood Mechanix to abide by "any safety measures requested by [Polygon]" and allowing Polygon to "inspect the work site in its entirety, particularly in the absence of a contractual provision that placed sole responsibility for safety measures on Wood Mechanix."
In their second assignment of error, plaintiffs assert that the trial court erred in granting summary judgment in favor of Hampton on plaintiffs’ ELL claim. "Oregon’s ELL imposes liability on ‘all owners, contractors or subcontractors and other persons having charge of, or responsibility for’ work involving a risk or danger." Yeatts v. Polygon Northwest Co. , 360 Or. 170, 179, 379 P.3d 445 (2016) (quoting ORS 654.305 ). In addition to a worker’s direct employer, ELL liability may be imposed on an indirect employer
See Sacher, 302 Or. at 489 (noting defendant was "not shown to be in charge of or responsible for the design, maintenance or operation of the [] saw unit" that caused the plaintiff's injury); Brown, 150 Or. at 397 (in which an subcontractor's injured employee failed to use proper safety equipment supplied by the subcontractor); Yeatts Whitman v. Polygon Northwest Company, 360 Or. 170, 172 (2016) (in which an injured subcontractor's employer decided to use guardrails as the safety method at the site and constructed the guardrail that ultimately failed). Schroeder v. Northrop Servs., Inc., 86 Or. App. 112 (1987) exists as one of the only ELL cases to address a risk-creating instrumentality.
Wilson v. Portland Gen. Elec. Co., 252 Or. 385, 399, 448 P.2d 562 (1968), abrogated on other grounds by Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 379 P.3d 445 (2016).
At oral argument, Plaintiff argued that the Employer Liability Law (“ELL”), ORS 654.305 et seq., also “provides for a nondelegable duty” that BOR allegedly owed to Harrison. See Tr. 14 (citing Yeatts v. Polygon, 360 Or. 170 (2016)). The complaint alleges that BOR was Harrison's “indirect employer[,]” Id. ¶8, and Yeatts says that “liability under the ELL can be imposed on an indirect employer[.]” 360 Or. at 179.
The Oregon Supreme Court has held that, in addition to a worker's direct employer, liability under the ELL can be imposed on an indirect employer "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." Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170 (2016) (citing Woodbury v. CH2M Hill, Inc., 335 Or. 154, 160, 61 P.3d 918 (2003)). In this case, the dangerous or "risk-producing" activity can be identified as the felling of a harvest tree, on steep terrain, while attempting to preserve the reserve hardwoods in the area.
ORCP 47 C. On review of a trial court's grant of summary judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party. Yeatts v. PolygonNorthwest Co. , 360 Or. 170, 172, 379 P.3d 445 (2016). Thus, with respect to TriMet's motion, we view the facts in the light most favorable to ATU, but, with respect to ATU's motion, we view the facts in the light most favorable to TriMet.
Yeatts v. Whitman v. Polygon Nw. Co., 360 Or. 170, 180 (2016).
“The ELL imposes a heightened statutory standard of care on a person or entity who is either in charge of, or responsible for, any work involving risk or danger.” Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159 (2003); Yeatts Whitman v. Polygon N.W. Co., 360 Or. 170, 179 (2016); Anderson v. Intel Corp., Case No. 3:20-cv-02138-AC, 2021 WL 1401492, at *3 (D. Or. Apr. 14, 2021). ORS § 654.305 provides:
Under the ELL, a plaintiff may hold an indirect employer liable 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.'" Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 179 (2016) (quoting Woodbury, 335 Or. at 160). Although the language of the indirect employer test refers to "risk-producing activity" rather than risk-producing "work," the Woodbury court made clear that the indirect-employer analysis embraces the same broad definition of "work involving risk or danger" to include the worker's discrete task and the circumstances under which it was performed.