Kilminster v. Day Management Corp.

919 P.2d 474, 323 Or. 618, 1996 Ore. LEXIS 70
CourtOregon Supreme Court
DecidedJuly 18, 1996
DocketCC 9301-00574; CA A82220; SC S42217
StatusPublished
Cited by58 cases

This text of 919 P.2d 474 (Kilminster v. Day Management Corp.) 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
Kilminster v. Day Management Corp., 919 P.2d 474, 323 Or. 618, 1996 Ore. LEXIS 70 (Or. 1996).

Opinions

[621]*621GRABER, J.

This is an action involving claims for negligent wrongful death, intentional wrongful death, and violation of the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO), brought against decedent’s employer and that employer’s president.

The individual plaintiffs are decedent’s parents. Decedent’s father is the personal representative of decedent’s estate and is a plaintiff in that capacity. Decedent was an employee of defendant Day Management Corporation (DMC). Defendant Gordon Day is the president of DMC.

The case comes to us on review of a trial court’s grant of defendants’ motion to dismiss three of plaintiffs’ claims. Accordingly, we assume the truth of all well-pleaded facts alleged in the complaint and give plaintiffs the benefit of all favorable inferences that may be drawn from those facts. Stringer v. Car Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992). Plaintiffs allege, as pertinent:

• On January 6, 1992, decedent died in the course and scope of his employment with DMC, when he fell 400 feet while working on a radio tower. Before his death, decedent frequently had complained to DMC about the inadequate equipment that he was forced to use when climbing. Decedent was apprehensive about climbing with the equipment that DMC had provided, and he had asked that he not be required to climb anymore. DMC refused that request and, according to the complaint, told decedent “to climb or leave his employment.”

• DMC deliberately did not provide its workers, including decedent, with legally required safety equipment. DMC deliberately did not instruct decedent and its other workers how to use legally required safety equipment, how to engage in safe work practices, or how to follow state fall-protection regulations. DMC encouraged its workers not to use available safety equipment and not to take legally mandated safety precautions. DMC refused to develop a system or plan to ensure the safety of its workers at the tower or to provide adequate supervision to ensure the safety of those workers.

[622]*622As a result of DMC’s actions, those workers were not adequately protected from fall, injury, and death.

• DMC knew, before decedent’s death, that if it did not provide the workers in decedent’s work location with the requisite safety equipment and training, a worker would fall from the tower and that such a fall would result in serious injury or death.

After decedent’s death, plaintiffs filed a complaint against DMC. Decedent’s personal representative first alleged that, under ORS 30.020, DMC’s negligence had led to the wrongful death of decedent.1 In the second claim, decedent’s personal representative alleged that DMC had acted with a “deliberate intention” to produce decedent’s injury or death, within the meaning of ORS 656.156(2), and that decedent, had he lived, would have had cause for action against DMC for its wrongful acts.2 Plaintiffs also alleged that defendants Day and DMC had engaged in a pattern of racketeering activities in violation of ORICO, ORS 166.715 to 166.735, and that those activities had resulted in decedent’s death.

Day and DMC moved to dismiss all three claims, pursuant to ORCP 21 A(8).3 The trial court ruled that ORS 656.018 was the exclusive remedy for all three claims and that application of that statutory provision was constitutional. The trial court concluded that, as to those three claims, plaintiffs failed to state ultimate facts sufficient to constitute a claim. Accordingly, the trial court granted that motion.4

[623]*623Plaintiffs appealed to the Court of Appeals, arguing that ORS 656.018 did not bar the negligent wrongful death claim against DMC and, alternatively, that such an application of ORS 656.018 would violate Article I, section 10, of the Oregon Constitution. Plaintiffs also argued that the complaint stated facts sufficient to meet the deliberate-intention-to-injure standard of ORS 656.156(2) and to state a claim against DMC and Day under ORICO. The Court of Appeals affirmed the order of the trial court. Kilminster v. Day Management Corp., 133 Or App 159, 171, 890 P2d 1004 (1995). For the following reasons, we affirm the decision of the Court of Appeals with respect to the negligent wrongful death and ORICO claims but reverse with respect to ORS 656.156(2).

NEGLIGENT WRONGFUL DEATH

We begin with the negligent wrongful death claim. Plaintiff5 argues that the exclusivity provision of the Workers’ Compensation Act, ORS 656.018, does not preclude a wrongful death claim brought under ORS 30.020 and that, if ORS 656.018 were read to preclude that claim, such a reading would violate Article I, section 10, of the Oregon Constitution.

ORS 656.018 provides in part:
“(l)(a) The liability of every employer who satisfies the duty required by [the Workers’ Compensation Act] is exclusive and m place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers’ beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom
«H* * * * *
“(2) The rights given to a subject worker and the beneficiaries of the subject worker under this chapter for injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment are in lieu of [624]*624any remedies they might otherwise have for such injuries, diseases, symptom complexes or similar conditions against the worker’s employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury, disease, symptom complex or similar condition.”6

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Bluebook (online)
919 P.2d 474, 323 Or. 618, 1996 Ore. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilminster-v-day-management-corp-or-1996.