OTLA Trial Lawyer Spring 2021

45 Trial Lawyer • Spring 2021 (a saw mill for example) and a related separate entity owns the equipment (the saws). If the employee of the first is in- jured because of defective equipment or maintenance, the second entity is an indirect employer. Supervision of work or safety. One re- lated entity may have control or the right to control safety measures of a subsidiary entity. If the related entity (usually the parent entity) has the right to control safety at the subsidiary entity, the related entity is an indirect employer and may be liable under the ELL. Cortez v. Nacco Material Handling Group, Inc. , 356 Or 254, 337 P3d 111 (2014). Loaned employees. Another common situation occurs when co-owned busi- nesses that are separate corporations loan employees to each other during slow times. If the employee is injured while on loan, there is no immunity for the company to which the employee is loaned. See Brehm v. Caterpillar, Inc. , 235 Or App 274, 231 P3d 797(2010), review den, 349 Or 245. Forgotten claims The subject is the ELL. However, some powerful claims similar to the ELL exist in addition to or in place of the ELL. It is beyond the scope of this article to describe them in detail. Some teasers: Oregon Safe Employment Act — ORS 654.005. If the defendant is in control of a work site, they are considered an “owner” under the OSEA. ORS 654.005(6); See Moe v. Beck , 311 Or 499, 815 P2d 692 (1991); Cain v. Bovis Lend Lease Inc. , 817 F Supp2d 1251 (D Or, 2011). This is valuable as an additional claim or in cases where the defendant might not qualify as an “indirect employer” or the work does not involve “risk or dan- ger.” For example, the general contractor of a paving contract is an “owner” of the freeway due to its custody and control of the place of employment. Premises liability. Many work site ac- cidents are also premises liability cases. Any worker, no matter whose employee he or she is, is an invitee at the work site. Dutton v. Donald M. Drake Co ., 237 Or 419, 424-425, 391 P2d 761 (1964). That status implicates the duty to make the premises safe, the duty to inspect and discover and the duty to warn. Woolston v. Wells , 297 Or 548, 557-558, 687 P2d 144 (1984). As with the OSEA, this is valuable where the plaintiff, who may be an inde- pendent contractor, or the defendant, who may not qualify as an indirect em- ployer, does not meet the requirements of the ELL. Advantages An ELL claim is a negligence claim. However, it has many advantages over a common law negligence claim: • The standard of care on the defendant is much greater under the ELL than under common law negligence. The statutory requirement that defendant “shall use every device, care and pre- caution” without regard to cost, is powerful. • A higher standard also exists under the “safety regulations” section of the ELL. Each section of the ELL can be alleged as an alternative count. Al- though ORS 654.310 more likely will involve construction sites, or places of employment subject to Or-OSHA or other DCBS rules and regulations, if a violation of a rule or regulation occurred, there is a violation of the ELL. • ELL cases are unique in that “subse- quent remedial measures” are admis- sible, at least in state court. Rich v. Tite-Knot Pine Mill , 245 Or 185, 421, P2d 370 (1966). If the measures were done correctly after an injury, they are evidence of what could have been done if “every device, care and precau- tion” had been used for the protection and safety of life and limb. But, the evidence rule does not apply in fed- eral court. See Quirk v. Skanska USA Building, Inc. , 2018WL 2437537 (D Or, 2018). • Damage caps under ORS 31.710 are inapplicable to third party cases in- cluding ELL cases. Vasquez v. Double Press Mfg., Inc. , 364 Or 609, 437 P3d 1107 (2018). In wrongful death ac- tions under the ELL, recovery is permitted “without any limit as to the amount of damages which may be awarded.” ORS 654.325. Conclusion Shortly after its passage, the Oregon Supreme Court noted (not necessarily with approval) that the Oregon ELL “is broader in its scope than any other Em- ployers’ Liability Law that has been called to our attention.” Browning v. Smiley- Lampert Lumber Co. , 68 Or 502, 137 P 777 (1914). That’s good! As Frank Pozzi said, the protections of the ELL act as an antidote for the “oppression of the com- mon law.” The broad protections of the ELL should be understood and utilized whenever possible. Gene Hallman is a trial lawyer whose practice is now limited to mediation and arbitration. He previously specialized in personal injury and appellate law including Employer Liability Law cases. He contrib- utes to the OTLA Guardians of Civil Justice at the Guardians Club level. His office is Hallman Law Office, PO Box 308, Pend- leton, OR 97801. He can be reached at gene@hallman.pro or 541-310-1859. Steve Piucci specializes in personal injury law including Employer Liability Law cases. He contributes to the OTLA Guard- ians of Civil Justice at the Guardians Club Plus level. He is senior partner in the firm of Piucci Law, 900 SW 13th Ave., Ste. 200, Portland, OR 97227 and can be reached at steve@piucci.com or 503-228- 7385. 1 For an exhaustive discussion of the ELL, see Daniel Dziuba and Robert Udziela, “The Employer Liability Law,” Trial Lawyer, Fall 2008, 6-37.