OTLA Trial Lawyer Spring 2021

42 Trial Lawyer • Spring 2021 By Gene Hallman OTLA Guardian By Stephen Piucci OTLA Guardian I n 1959, prominent Portland attorneys Frank Pozzi and Jim O’Hanlon went toe to toe in print on the question of the continued necessity of the Employer Liability Law (ELL), passed by Oregon voters by initiative in 1911. 1911 Or Laws Ch 3. Pozzi argued the law pro- vided a necessary antidote to the oppres- sion of the common law. O’Hanlon felt that, while the law provided a “bonanza for lawyers and a fine arena for some keen legal play,” the worker had adequate protection without the ELL. 1 Willa- mette L J 48, 66 (1959). Pozzi was right. O’Hanlon was wrong. The ELL has proven to be any- thing but superfluous. It is an essential tool for the protection of workers and their families, and a necessary adjunct to the sometimes toothless remedies of the workers’ compensation system. Yet, the ELL remains an enigma to many lawyers and judges. Some judges have no experience with the ELL. They express confusion as to why the case isn’t handled in the workers’ compensation system and are surprised your ELL case is entitled to precedence over all other c i v i l ca s e s on the docke t . ORS 656.595(1). More importantly, lawyers unfamiliar with the scope of the ELL may believe the injured worker’s case begins and ends with the workers’ compensation claim. They miss important legal relationships and responsibilities among workers and entities at the work site or fail to recog- nize non-delegable duties attendant on others for the benefit of the injured or deceased worker. A little history In 1911, before the birth of Oregon workers’ compensation, the voters, by initiative, passed the Employer’s Liabil- ity Law (ELL). Its purpose was to impose higher standards of care than the com- mon law on employers whose work in- volved ‘risk or danger.’” Groves v. Max J. Kuney Company , 303 Or 468, 737 P2d 1240 (1987)(quoting Howard v. Foster & Kleister , 217 Or 516, 332 P 477 (1923)). 1 With mandatory workers’ compensa- tion and its attendant employer immu- nity, the ELL has evolved primarily into a statutory remedy for recovery for inju- ries caused by dangerous practices of others outside the direct employment status at the work site. Every work site injury has the poten- tial for an ELL claim. It is incumbent on the worker’s attorney to carefully con- sider the ELL in order to obtain complete recovery for the client. What is the ELL? Most, but not all, ELL cases involve work site injuries in which an injured worker sues a general contractor or an- other sub contractor for causing or per- mitting an unsafe condition or practice to exist at the site. The ELL essentially has two working Gene Hallman Steve Piucci EMPLOYER LIABILITY LAW: THE BASICS >>>>>>>>>>>>>>>