Deitz v. Savaria

491 P.2d 620, 260 Or. 538, 1971 Ore. LEXIS 337
CourtOregon Supreme Court
DecidedDecember 15, 1971
StatusPublished
Cited by11 cases

This text of 491 P.2d 620 (Deitz v. Savaria) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deitz v. Savaria, 491 P.2d 620, 260 Or. 538, 1971 Ore. LEXIS 337 (Or. 1971).

Opinions

HOLMAN, J.

A Beaverton municipal building inspector brought this action against a construction contracting firm, Savaria-Smith, and its employee, Martyn, for injuries allegedly received at defendant Savaria-Smith’s building site. Plaintiff asserted that a scaffolding on which he was standing during his inspection collapsed as a result of defendants’ negligent construction and maintenance. Both plaintiff’s employer, the City of Beaverton, and defendant Savaria-Smith were employers subject to the provisions of the Workmen’s Compensation Act. Defendants interposed pleas of joint supervision and control under OBS 656.154 of the Act in bar of the action.

[541]*541Plaintiff was on the premises exclusively for the purpose of inspection and had no active part in the erection or construction of the building other than to require that it conform to the building code of the City of Beaverton.

ORS 656.154 provides as follows:

“(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, * * * may elect to seek a remedy-against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.001 to 656.794.
“(2) As used in this section, ‘premises’ means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.
* * * * 33

In order for an action to be barred by the statute, it must appear 1) that defendant SavariaSmith and plaintiff’s employer, the City of Beaverton, were employers subject to the Workmen’s Compensation Act; 2) that defendant Savaria-Smith or its workman causing the injury had joint supervision and control with plaintiff’s employer over the premises upon which the injury occurred; and 3) that defendant Savaria-Smith and plaintiff’s employer were engaged in the furtherance of a common enterprise or in the accomplishment of the same or related purposes in operation; that is, plaintiff must have been working with the employees of Savaria-Smith in a common [542]*542activity which caused him to be exposed to the hazards created by such mutual engagement of the employers. Bass v. Dunthorpe Motor Trans., 258 Or 409, 410-11, 484 P2d 319 (1971); Fisher v. Rudie Wilhelm Warehouse Co., 224 Or 26, 35, 355 P2d 242 (1960); Johnson v. Timber Structures, Inc., 203 Or 670, 695, 281 P2d 723, 726 (1955) (Mr. Justice Tooze specially concurring) .

It is conceded that the City of Beaverton and Savaria-Smith were employers subject to the Act.

The first issue is whether plaintiff’s employer and Savaria-Smith had joint supervision and control of the premises upon which plaintiff was injured. Plaintiff contends that the joint control provisions require plaintiff’s employer to have actual control of the object causing plaintiff’s injury and to have actively joined with defendants in the construction so that the City of Beaverton had actual control over working conditions, safety standards, and operational conduct. Plaintiff submits that such requirements are not met in this case.

Plaintiff’s position is contrary to past decisions of this court. See Bass v. Dunthorpe Motor Trans., supra at 641; Thomas v. Foglio, 225 Or 540, 358 P2d 1066 (1961); Pruett v. Lininger et al, 224 Or 614, 356 P2d 547 (1960). In Pruett we said as follows:

“* * # [T]he exclusive coverage of the Workmen’s Compensation Act applies when there is an operational co-mingling of the workmen of two or more covered employers even though only one of the covered employers may be said to be in actual control of the site where the work is under way.” 224 Or at 623 (Emphasis added).

The term “joint supervision and control” describes a situation in which each employer has control of his em[543]*543ployees’ activities and, thus, through them has some control of the conditions under which his employees and the employees of the other employer must work. Bass v. Dunthorpe Motor Trans., supra. In the present case, while he was inspecting the building, plaintiff could have knocked a hammer off the scaffolding onto one of defendant employers’ workmen, or, one of such workmen could have endangered plaintiff with faulty scaffolding, as alleged. Both employers had control, through their employees, of the premises in the sense that they could affect the conditions under which the employees of both employers worked.

The next, and more difficult, question is whether plaintiff’s employer and defendant SavariaSmith were engaged in the furtherance of a common enterprise or in the accomplishment of the same or related purposes in operation on the premises in question. Plaintiff contends they were not because his employer’s purpose in operation was regulation — not construction — and there was no joint economic activity for profit. Plaintiff cites the cases of Hensler v. City of Portland, 212 Or 28, 318 P2d 313 (1957) and Kosmecki v. Portland Stevedoring Co., 190 Or 85, 223 P2d 1035 (1950), as being representative of his point of view. He also points to the language in some of the early cases relating to pickup and delivery situations.

In Hensler, plaintiffs were employees of a boat builder. One of their employer’s boats had been delivered by railroad car to defendant’s dock for launching. While the boat was being launched, plaintiffs were in the boat working on it for their employer. They were injured as the result of a break in the slings with which defendant was lifting the boat from the railroad car. The court held that the employees of [544]*544both employers were not engaged in performing component parts of a general undertaking and, therefore, were not engaged in the furtherance of a common enterprise or in the accomplishment of the same or related purposes in operation.

In Kosmecki, one employer was repairing a ship and the other was loading it with cargo. This court held that they and their employees were not engaged in the furtherance of a common enterprise or in the accomplishment of the same or related purposes in operation.

We believe the present situation is more closely analogous to the one in Plummer v. Donald M. Drake Co., 212 Or 430, 320 P2d 245 (1958),

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Bluebook (online)
491 P.2d 620, 260 Or. 538, 1971 Ore. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deitz-v-savaria-or-1971.