Clare et al v. Timber Products Co. Limited Partnership et al

Filing 49

ORDER: Plaintiffs' motion to supplement response 41 to defendant's motion for summary judgment is denied; plaintiffs' motion to strike evidence included in their response is denied; defendant's motion to strike evidence included in it's reply brief is granted in part as stated herein and the remainder of the motion is moot for purposes of summary judgment; defendant's motions for summary judgment 22 are denied; and plaintiffs' motion for leave to fi le third amended complaint 39 is granted in part and denied in part as stated herein. Ordered and signed by Magistrate Judge Mark D. Clarke. (rsm) (Additional attachment(s) added on 2/23/2012: # 1 Attachment Remainder of original document) (rsm).

the top of the load. Defendant offers evidence in reply that the language on the posting came
from TP Trucking upon defendant's inquiry on the use of plastic. The court notes that, at the
bottom of the document is handwritten "TP Trucking." (PI. Ex. 14; N iedermeyer Decl. Ex. 2.) It
is unclear from the summary judgment record who made the initial decision to plastic wrap
loads. Plaintiffs point to evidence supporting a finding that defendant Timber Products made the
decision to change from using plastic bags, which did not require truckers to get on top of the
load, to using 100-foot rolls of plastic, which requires truckers to get on top ofthe load, because
defendants product was being damaged; also, rolls of plastic are less expensive. Timber
Product's safety director testified in this regard:

Q
A

Q.
A

Were you familiar with the plastic - is bags the right word?
Sure.
The plastic bags, ifl'm understanding correctly. is the unit of wood
is put inside the plastic and each unit is self-contained in plastic.
Yes.

Q

And using that method the forklift driver would load the plastic on
the truck and then the truck driver would simply throw over the straps to tarp it
and never have to get on top, is that correct?
A
I don't know that they never had to get on top but they wouldn't
have to get on top to put plastic on, true.

Q

What was the reason, if you know, from going to the individually
wrapped plastic units or wrapping the whole load?
A
The unit bags were damaging our product. It was causing the unit
in the wood to sweat and the moisture would come out on and be trapped in those
bags. So from what I understand one of the owners decided that we would go to
the plastic rolls as opposed to the bags.
Q
Was the plastic roll less expensive in terms of the product itself,
the amount you paid for the plastic?
Q
I've heard that it is. In our investigation, I heard that it was less
expensive but it didn ' t seem to matter. We ' d considered going back to them.
Q
After Mr. Clare fell you considered going back to them?
A
Sure.

Order - 14

Q

As part of your overall safety improvement?
You bet.
Q
Did you make a decision one way or the other?
A
Well, one of the managers decided that it wasn't worth the chance
of damaging our product again. We had, from what I understand ... ,we had a
claim, an expensive claim where the customer - the wood was moldy from the
moisture that been [sic] built up inside so they didn't want to go that route again.
A

(Hill Dep. at 26-28.)
Plaintiffs also rely on after injury reports issued before any remedial changes were made
to show control by defendant. Defendant moves to strike these exhibits and certain other
exhibits, including any related briefing, as evidence of inadmissible subsequent remedial
measures. 5 Federal Rules of Evidence 407 provides:
When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
•

negligence

•

culpable conduct

•

a defect in a product or its design; or

•

a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment
or - if disputed - proving ownership, control, or the feasibility of precautionary
measures.

5 Plaintiffs acknowledge their exhibits 29 and 30 are evidence of subsequent remedial
measures which would normally be inadmissible under Rule 407, but argues these exhibits are
admissible to show control. (PI. Resp. At 17 & n.II.) He refers to his exhibits 23, 24, 25, and
31 in support of his contention defendant had retained or actual control over the loading and
plastic wrapping. Defendant moves to strike plaintiffs' exhibits 23, 24, 25, 26, 27, 29, 30, and
31.

Order - 15

To the extent the exhibits referenced in defendant's motion to strike are evidence of subsequent
remedial measures and, without deciding whether any of these exhibits implicate Rule 407, the
court will consider only references to "we" or "our" in plaintiffs' exhibits 23 through 25 and 31
to show control by defendant over the plastic wrapping of loads. The remainder of defendant's
motion to strike plaintiffs' evidence is moot for purposes of summary judgment. The exhibits
which are the subject of defendant's motion to strike, if offered at trial, mayor may not be
admissible in their entirety or in part.
Construing the evidence in favor of plaintiff, as it must, the Court finds there is sufficient
evidence in the record which raises genuine issues of material fact as to whether defendant
Timber Products retained control or exercised actual control over the manner or method of
plastic wrapping loads of lumber to subject defendant to ELL liability. Defendant's motion on
this ground is denied.
Defendant's motion one for summary judgment on plaintiff James Clare's ELL claim is
denied.

Defendant's Motion Two: Common-Law Negligence Claim
To establish a

c~aim

for negligence under Oregor.. law, a plaintiff must prove a duty of

due care owed by the defendant, a breach of that duty, causation, and damages. Hilt v. Bernstein,
75 Or. App. 502,510 (1985) (citing Brennen v. Citv of Eugene, 285 Or. 401 (1979)). Ifa
plaintiff invokes a special status, relationship, or standard of conduct, then that relationship may
create, define, or limit the defendant's duty to the plaintiff. Or. Steel Mills, Inc. v. Coopers &

Order - 16

Lybrand. LLP, 336 Or. 329, 340-41 (2004) (citing Fazzolari ex reI. fazzolari v. Portland Sch.
Dist. No. 11, 303 Or. 1, 17 (1987».
Defendant argues plaintiff James Clare's negligence claim fails because plaintiff was as
an independent contractor and defendant did not have a right to control and did not exercise
control over the way in which plaintiff applied plastic tarping to his cargo. Defendant relies on
the same arguments made in support of its motion as to plaintiff s ELL claim.
As found above, questions of fact exist as to whether defendant retained control or
exercised actual control over the manner or method of plastic wrapping of loads and, therefore,
defendant's motion two for summary judgment on plaintiffs negligence claim is denied.

Defendant's Motion Three: Claim for Loss of Consortium
"[A] claim for loss of consortium is based on injuries peculiar to a plaintiff that were the
consequence of tortious injury suffered by the plaintiffs spouse." Shoemaker v. Mgmt.
Recruiters 1nt'1. Inc., 125 Or. App. 568, 572 (1993). A loss of consortium claim is considered to
be a derivative claim and dependent upon resolution of the spouse's claims. Knepper v. Brown,
213 Or. App. 598,609 (2007), affd, 345 Or. 320 (2008). Because the court has found genuine
issues of material fact exist as to plaintiff James Clare's claims for violation of the ELL and for
negligence, plaintiff Kathy Clare's claim for loss of consortium will proceed to trial.
Defendant's motion three for summary judgment on plaintiff Kathy Clare's loss of consortium is
denied.
Alternatively, defendant moves for partial summary judgment contending that loss of
earnings are not proper damages in plaintiff Kathy Clare's loss of consortium claim. It is unclear

Order - 17

to the Court from a review of plaintiffs' second amended complaint and the briefing on this issue
whether or not plaintiff Kathy Clare is seeking lost earnings independent from those sought by
plaintiff James Clare. Plaintiff Kathy Clare's claim will go forward to trial and the issue can.be
revisited at that time. Defendant's motion three for summary judgment on this ground is denied.

II. PLAINTIFFS' MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
Plaintiffs move to amend the claims of ELL liability and negligence. Leave to amend
should be "freely give[n)" "when justice so requires." Fed. R. Civ. P. 15(a)(2); Lockheed Martin
Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). The court considers four
factors in determining whether to allow an amendment: "(1) bad faith on the part of the
plaintiffs; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed
amendment." Lockheed Martin, 194 F.3d at 986. Plaintiffs conceded at oral argument that
defendant would be prejudiced ifleave were granted as to the new specification of negligence
that defendant provided plaintiffs with a short roll of plastic. Plaintiffs' motion to amend in this
regard is denied. Plaintiffs' motion to amend is otherwise granted.

ORDER
Based in the foregoing, plaintiffs' motion to supplement response (#4 1) to defendant's
motion for summary judgment is denied; plaintiffs' motion to strike evidence included in their
response is denied; defendant's motion to strike evidence included in its reply brief is granted in
part as stated herein and the remainder of the motion is moot for purposes of summary judgment;
defendant ' s motions for summary judgment (#22) are denied; and plaintiffs' motion for leave to
file third amended complaint (#39) is granted in part and denied in part as stated herein.

Order - 18

DATED this

2-. "S day of February 2012.

United States Magistrate Judge

Order - 19