Cox v. Graebel/Oregon Movers, Inc.

Filing 41

OPINION & ORDER: Graebel is not liable under ORS § 654.305 via the common enterprise test. The court finds that Graebel did not have an integral or component part of CSI's project and that the inspection and selection of commercial doors is not work that involves a risk or danger. Therefore, Defendant's motion for partial summary judgment 24 is granted and Plaintiff's first claim for violation of ORS § 654.305 is dismissed. Ordered by Judge Marco A. Hernandez. See 11-page order attached. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

LESLIE COX, an individual,
No. 03:11-CV-87-HZ
Plaintiff,
OPINION & ORDER
v.
GRAEBEL/OREGON MOVERS, INC.,
an Oregon corporation,
Defendant.

James L. Francesconi
Matthew E. Malmsheimer
Michael K. Kelley
Haglund Kelley Horngren Jones & Wilder, LLP
200 SW Market Street, Suite 1777
Portland, OR 97201
Attorneys for Plaintiff

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Walter H. Sweek
Paul A.C. Berg
Cosgrave Vergeer Kester, LLP
500 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204
Attorneys for Defendant
HERNANDEZ, District Judge:
Defendant moves for partial summary judgment on Plaintiff’s first claim for
relief–violation of Oregon’s Employer Liability Act, ORS § 654.305. I grant the motion.
BACKGROUND
Plaintiff Leslie Cox worked as a carpenter for CSI Interior Contractors, Inc. Pl.’s Opp. to
Def.’s Mot. for Partial Summ. J. (“Cox Opp.”), 2. Mentor Graphics hired CSI to assist with
relocating and reconfiguring offices at Mentor’s Wilsonville headquarters. Id. at 3. The work
consisted of subdividing larger work areas to create smaller offices or consolidating smaller work
areas to create larger work areas. Id. Since 2002, Mentor has hired Defendant Graebel/Oregon
Movers, Inc. to provide storage and moving services. Decl. of Joel Langbehn in Supp. of Def.’s
Mot. for Summ. J. (“Langbehn Decl.”) ¶2. Graebel stored desks, chairs, cubicle walls, interior
doors, and other similar office furniture at its storage facility in Wilsonville. Id. at ¶3. Twice a
week on a regular basis, Graebel moves items from its storage facility to Mentor’s offices, and
moves items from Mentor’s offices to Graebel’s storage facility. Id. at ¶4. Graebel stored items
at its facility for other companies as well. Brewer Dep. 20:18-21:7, May 24, 2011, attached as
Ex. 1 to Decl. of Paul Berg in Supp. of Mot. for Partial Summ. J. (“Berg Decl.”).
In April 2009, CSI was working on a project to construct conference rooms and add an

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office. Brewer Dep. 25:10-15, attached as Ex. 1 to Decl. of Matthew Malmsheimer in Supp. of
Cox Opp. (“Malmsheimer Decl.”). The project required constructing metal stud walls, ceilings,
and sheet rock work. Id. at 25:16-26:2. On April 7th, plaintiff Cox and his foreman Marshall
Brewer went to Graebel’s storage facility to select doors for the project. Cox Dep. 18:5-14, May
23, 2011, attached as Ex. 2 to Berg Decl. As was customary, Cox and Brewer checked in at the
storage facility and were escorted by a Graebel employee to the area where Mentor’s doors were
stored. Id. at 18:5-19:3. The doors were stored by leaning them against the wall, such that only
one door’s surface could be seen at a time. Brewer Dep. 22:1-5, attached as Ex. 1 to Berg Decl.
Cox set aside the first door in the stack because it was defective. Cox Dep. 19:8-20. Cox then
inspected the second door. He checked the top of the door by holding the door and walking
backwards. Id. at 21:4-7. Brewer asked Cox to check the finish of the front surface, so Cox
began walking forward with the door and pushing it back up. Id. at 21:8-11. As Cox was
pushing the door upright, the stack of doors began falling forward on top of Cox. Id. at 21:13-16.
Cox sustained several injuries as a result of the accident. Id. at 36:8-16.
Plaintiff Cox brought the following claims against Defendant Graebel: (1) violation of
Employer Liability Law, ORS § 654.305, (2) negligence per se, and (3) negligence. Compl. at 69. Graebel’s motion for summary judgment concerns only Cox’s first claim–violation of ORS §
654.305.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
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identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
Oregon’s Employer Liability Act, ORS § 654.305 et seq., is designed to “protect workers
in hazardous employment from the negligence of their employers, or those having some relation
to the work or place of work or means required to prosecute the work in which they are engaged,
and not as a substitute generally for injuries for which other statutes or the common law afford
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redress.” Drefs v. Holman Transfer Co., 280 P. 505, 507 (Or. 1929). The Act states:
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 efficiency of the structure, machine or other apparatus
or device, and without regard to the additional cost of suitable material or safety
appliance and devices.
ORS § 654.305. Before a duty is imposed, a person must have “charge of” or “responsibility for”
work that involves “a risk or danger to the employee”. Id. Under ORS 654.305, it is not
necessary that the defendant be a “direct employer” of the injured plaintiff.
Wilson v. Portland General Electric Co., 448 P.2d 562, 565 (Or. 1968). There are three kinds of
cases in which a defendant employer owes a duty to a someone who is not a direct employee: (1)
“defendant and plaintiff’s employers are simultaneously engaged in carrying out work on a
common enterprise”, (2) defendant “employs a contractor to do the work but retains sufficient
right of control over the manner in which the work is conducted”, and (3) defendant “hires a
contractor to do the work and retains no right to control the manner or method in which the work
is conducted, but nevertheless actually exercises control”. Id.
I.

Common Enterprise
As applied to the facts here, both parties agree that only the first kind of case–“common

enterprise”–may be applicable. Def.’s Memo. in Supp. of Mot. for Partial Summ. J. (“Graebel
MSJ”), 12; Cox Opp., 12 n.1. Common enterprise has been further defined as
[w]hen, as the result of the activities of defendant’s employees or use of his
equipment, a risk of danger is created which contributes to an injury to plaintiff
who is the employee of another engaged in work on the same project, defendant
has been considered to have sufficient control over the work to be subject to the
duties imposed by the Act. This is so even though he might not have had actual
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control over the specific activity in which plaintiff was engaged at the time of his
injury.
Wilson, 448 P.2d at 565 (citing Thomas v. Foglio, 385 P.2d 1066, 1071 (Or. 1961).
(emphasis added).
The Oregon Supreme Court has set out the following test to determine whether liability is
created by a common enterprise: (1) the defendant and plaintiff employers participate in a project
of which defendant has an integral or component part, (2) the work must involve a risk or danger
to the employees or public, (3) plaintiff must be an “employee” of the defendant employer, and
(4) defendant employer must have charge of or responsibility for the activity or instrument that
caused plaintiff’s injury. Sacher v. Bohemia, Inc., 731 P.2d 434, 440 (Or. 1987). Under the third
element of this common enterprise test, plaintiff is considered defendant’s “employee” if the
employee is “adopted”, “intermingled”, or works for an independent contractor hired by the
defendant employer that retains the right to control the risk creating activity or instrument. Id.
(citations omitted). An “adopted” employee is a someone who “perform[s] work on a project of
which defendant’s operations are an integral part.” Thomas,358 P.2d at 1068. An
“intermingled” employee occurs when “defendant’s interlocking interests with the [plaintiff’s]
employer amount to ‘an intermingling of duties and responsibilities’”. Myers v. Staub, 272 P.2d
203, 206 (Or. 1954).
I now address whether the circumstances surrounding Cox’s injury meets the common
enterprise test, such that Graebel is liable under the Oregon Employer Liability Act, ORS §
654.305. As an initial matter, Graebel’s argument is limited to the first two elements of the
common enterprise test: (1) whether Graebel participated in a project with CSI and had an

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integral or component part of the project and (2) whether the work involved a risk or danger to
Cox or the public. Graebel MSJ, 13-14. I will limit my analysis to these arguments.
A.

Integral or Component Part of Project

A defendant employer is an integral or component part of plaintiff employer’s project if
there is “co-operative conduct in accomplishing a task” in which both are interested. Thomas,
358 P.2d at 1069 (citations omitted). The level of participation “must be more than a common
interest in an economic benefit which might accrue from the accomplishment of the task”. Id.
(citations omitted). The defendant employer “must actively join in a physical way in carrying on
the particular work which produces the injury.” Id. (citing Johnson v. Timber Structures, Inc.,
281 P.2d 723, 725 (Or. 1955)). There also must be an “intermingling” of operations, duties, and
responsibilities between the defendant and plaintiff’s employer. Id.
Here, Cox was working on a project to build conference rooms and an office for Mentor.
Graebel asserts that it was not a part of this project nor aware of the project details. Graebel
MSJ, 13. Mentor hired Graebel for storage and moving services, independent of any projects for
which CSI had been hired. Id. Graebel points out that there was no operational intermingling of
employees, duties, or responsibilities of Graebel and CSI employees. Id. Graebel’s interaction
with CSI was limited to showing CSI’s employees where items were stored and then delivering
the items to Mentor.
Cox disagrees and counters that there was an intermingling of duties and responsibilities
among the Graebel and CSI employees. Cox Opp., 13. Cox argues that the doors were necessary
for the project, that CSI frequently visited Graebel’s storage facility, that the project could not
have been completed without access to Graebel’s storage facility, and that Graebel had exclusive
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control over the doors. Id. at 13-14.
I do not agree with Cox that there was an intermingling of duties and responsibilities
between Graebel and CSI. Graebel owed duties and responsibilities to Mentor, not CSI. The
facts cited by Cox show that Graebel had possession of items that CSI needed to complete its
project for Mentor. It is true that Graebel’s employees showed CSI’s employees where items
were located in its storage facility. But there is no evidence that Graebel’s employees were
involved in the actual construction of the conference rooms or the addition of an office or that
Graebel’s employees assisted with the selection of items that were needed for the project. There
is no genuine issue of material fact regarding whether Graebel had an integral or component part
in CSI’s project. Based on this ruling alone, there is no liability under ORS § 654.305.
B.

Risk or Danger to Employees

The second element of the common enterprise test requires that the work involves a risk
or danger to employees. “‘[R]isk’ or ‘danger’ refers to conditions of the work that create the
possibility that a worker will suffer harm.” Woodbury v. CH2M Hill, 61 P.3d 918, 922 (Or.
2003). The scope of the “work” must also be defined. Id. “Ordinarily, whether or not an
employment involves risk and danger is a jury question, but where the court can say that the
facts, as a matter of law, do not involve inherent risk and danger, it is its duty to so rule.” Wells
v. Nibler, 221 P.2d 583, 584 (Or. 1950). For an employee to recover under ORS § 654.305, the
work must have “inherent risk or danger”.1 Wells, 221 P.2d at 584 (citing Williams v. Clemen’s

1

“Although, . . .all work involves risk and danger, after bestowing careful attention upon
the ambit of the words just quoted, held that they apply only to employments which are
inherently dangerous.” Barker v. Portland Traction Co., 173 P.2d 288, 294 (Or. 1946) (citations
omitted).
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Forest Products, Inc., 216 P.2d 241, 243 (Or. 1950); see also Union Oil Co. v. Hunt, 111 F.2d
269, 274-275 (9th Cir. 1940) (Oregon’s Employer Liability Act “applies only to employments
involving a risk or danger, and which are inherently dangerous, whether due to or caused by
machinery or otherwise, and comprehends hazardous occupations in general, specifically
enumerated or otherwise.”).
In Wells, the employee had climbed up a tree to saw off some limbs. The employee was
about 20 feet from the ground when the tree limb he was cutting broke off prematurely, caught
his foot, and broke his leg. Wells, 221 P.2d at 583. The court held that sawing off a tree limb
was not inherently risky or dangerous. Id. at 585; see also Short v. Federated Livestock Corp.,
383 P.2d 1016, 1019 (Or. 1963) (feeding hogs is not inherently dangerous, regardless of how the
circumstances of how the feeding occurred). In Short, the court reasoned that ORS § 654.305
was meant to address risks or dangers that were not readily ascertained. “The danger that
confronts a hog feeder is patent and lies directly before him. It is materially different from that
which is presented by electrical wires, power driven machinery, unenclosed floor openings and
unstable scaffolding.” Short, 383 P.2d at 1019.
Here, Graebel contends that the scope of Cox’s work was the “inspection and selection of
interior commercial doors”–which does not involve inherent risk or danger. Graebel MSJ, 14. In
contrast, Cox asserts that the context, circumstances, and conditions in which the work occurred
must be taken into account. Cox Opp., 17. Cox cites to Woodbury, in which the Supreme Court
disagreed with the Court of Appeals’s description of the work as “moving the boards to facilitate
disassembly of the platform.” Woodbury, 61 P.3d at 922. The Woodbury Court reversed that
finding because it was not an accurate description of the work involved. Id. The work actually
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involved assembly and disassembly of a platform at a great height over concrete. Id. Likewise,
Cox wishes the Court to consider facts such as how the doors were stored, the weight and
number of doors, etc. Id. Graebel disagrees and urges the Court to follow Short, arguing that
any element of the work that relates to defendant’s alleged negligence should not define the
scope of the work because it is not “inherent”. I agree with Graebel that the scope of the work in
which Cox was involved was the inspection and selection of commercial doors–which as a
matter of law, does not involve any inherent risks or dangers. Woodbury is not in conflict, as the
Court recognized the inherent risk and danger involved with working at a great height.
Woodbury, 61 P.3d at 922. Viewing the facts in the light most favorable to Cox, I do not find
that the inspection of doors is work that involves a risk or danger. As to whether the doors were
stored properly, that is a separate question of negligence, which Cox has also alleged against
Graebel.
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CONCLUSION
In summary, Graebel is not liable under ORS § 654.305 via the common enterprise test. I
find that Graebel did not have an integral or component part of CSI’s project and that the
inspection and selection of commercial doors is not work that involves a risk or danger.
Therefore, Defendant’s motion for partial summary judgment [#24] is granted and Plaintiff’s first
claim for violation of ORS § 654.305 is dismissed.
IT IS SO ORDERED.

Dated this 4th

day of January, 2012.

/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge

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