OTLA Trial Lawyer Spring 2021

43 Trial Lawyer • Spring 2021 See Employer Liability Law p 44 parts. The first, ORS 654.305, addresses general employer liability and remains virtually unchanged since 1911: 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 effi- ciency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices. The second, ORS 654.310, deals with the violation of workplace safety regula- tions: All owners, contractors, subcontrac- tors, or persons whatsoever, engaged in the construction, repairing, al- teration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or op- eration of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in com- pliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295 and 654.750 to 654.780. Who is covered? ORS 654.305 covers workers engaged in work involving “risk or danger.” ORS 654.310 covers workers engaged in cer- tain construction and other dangerous activities. Both are usually applicable. We generally allege each as a separate count of the ELL claim. The primary limitation is the worker m u s t b e a n e m p l o y e e o f someone. Thus, an independent contractor is not an employee and is not covered by the ELL. Groves v. Max J. Kuney Co. , 303 Or 468, 737 P2d 1240 (1987). However, the worker may be covered by a similar remedy such as the Oregon Safe Employment Act (OSEA) or common law premises liability. A further exclusion is the “vice prin- cipal.” An employee to whom an em- ployer delegates the duty to see that the requirements of the ELL are followed has no claim for violation of those require- ments. Miller v. Georgia-Pac. Corp. , 294 Or 750, 662 P2d 718 (1983). ORS 654.315. This defense is often raised but seldom successful. Its application is al- most always a question of fact. Skeeters v. Skeeters , 237 Or, 204, 389 P2d 313 (1964); Richey v. Sumoge , 273 F Supp 904 (D Or, 1967). Who is subject to it? While ELL cases primarily involve work site injuries, other places can give rise to these claims. To be subject to the ELL, a defendant must be an “indirect employer” and must “have charge of ” work involving risk or danger. To be considered a plaintiff ’s indirect employer, one of three situations must exist. These are clearly set forth in the case of Woodbury v. CH2MHill, Inc. , 335 Or 154, 160, 61 P3d 918 (2003): a. Common enterprise : The defendant and the plaintiff ’s direct employer are simultaneously engaged in carrying out work on a common enterprise. b. Retained right to control : The defen- dant retains the right to control the See Employer Liability Law p 44 Frank Pozzi