Wienke v. OCHOCO LUMBER COMPANY

558 P.2d 319, 276 Or. 1159, 1976 Ore. LEXIS 754

• Court: Oregon Supreme Court
• Decided: December 30, 1976
• Docket: 9790, SC P-2474
• Status: Published

Opinions

HOLMAN, J.

This is an action for damages for the death of a timber faller who was killed by a tree felled by a co-worker. The issue on appeal is whether defendant owed a duty under the Employers’ Liability Law (the Act) to plaintiffs’ decedent, who was employed by a contractor of defendant.

Plaintiffs’ decedent was killed on December 12, 1969. Until 1966 he had been an employee of defendant and a member of the International Woodworkers of America, AFL-CIO, Local Union 3-200. He had worked for defendant as part of a falling crew consisting of four fallers and a "bull buck,” a kind of supervisor. In 1966 defendant decided to "gypo” or contract out the falling operation and terminated the men of the falling crew.¹ After accepting bids, it awarded the falling contract to a logging corporation formed by C. L. Burgess, who had been defendant’s bull buck prior to the termination of the falling crew. The logging corporation employed three of the four former members of the falling crew, including plaintiffs’ decedent. They worked under conditions which were much the same as before, except that since Burgess worked as one of the fallers, there was no bull buck. Plaintiffs’ decedent was struck by a falling tree because the co-worker who felled it believed that plaintiffs’ decedent was not in the area where the tree would fall.

At the time of the death there was a collective bargaining agreement in effect between defendant and the International Woodworkers of America, AFL-CIO, Local 3-200, which provided, in part, as follows:

"(a) The Employer shall require its contractors and sub-contractors to maintain the standard of wages and working conditions provided in its collective bargaining agreement with the International Woodworkers of America, AFL-CIO, subject to the following conditions and exceptions:

"(1) This provision shall not apply to * * * contracts for performance of work not previously done by employees of the Employer.

"(2) * * * 'Working conditions’ as used above in this article is limited to the physical conditions under which productive work is actually performed.” (Emphasis ours.)

There was, in fact, no other provision in the agreement dealing with working conditions. On the basis of other evidence, the trial court interpreted the agreement for the jury as follows:

"We instruct you that the defendant had a duty under this agreement to require its contractors and subcontractors to maintain the same standard of working conditions, regarding the physical condition under which productive work was to be actually performed, including weather and safety precautions, which had existed when defendant’s direct employees had performed the same work in falling and bucking timber. * *

The trial court apparently held that plaintiffs’ decedent was a third party beneficiary of the agreement and that the agreement established a relationship which made defendant potentially liable in tort for negligent breach of the agreement. The correctness of this holding is not in issue here.

The trial court submitted to the jury the issue of whether defendant was negligent in not performing its duty under its contract with the Union² in permitting the Burgess Logging Company to endanger plaintiffs’ decedent

"D By not keeping the fallers informed of the location of * * * buckers * * * or other workmen passing in the vicinity of trees being felled.

"2) By not requiring the fallers to work in teams.

"3) By placing the fallers and buckers in such close proximity with other fallers and buckers that trees felled by one faller could strike another workman.

"4) By failing to require the defendant’s contractor C. L. Burgess Logging Company, Inc., to follow the practice known as 'Stripping’ in the performance of the woods operation of falling, bucking and limbing trees.

"5) By requiring and permitting fallers to work in weather conditions that made falling hazardous and dangerous in that said fallers, buckers and limbers, including the Plaintiffs’ decedent, on the date and at the time of his death, were working when snow covered the trees and brush in the vicinity of their work thereby obstructing their vision so that it was not possible for a timber faller to see and locate other workmen, and which prevented said fallers from giving any or an adequate and timely warning to other persons of the vicinity of trees about to be felled.

"6) By failing to plan in advance said woods operation of falling and bucking and limbing so as to provide for the safety of fallers, buckers and limbers, and by failing to see that a predetermined plan was followed.”

These allegations were restated in each of the complaint’s three counts: one in negligence (the only one submitted to the jury), one in contract, and one under the Act. The jury returned a verdict for defendant.

The sole issue on appeal is the propriety of the withdrawal from the jury of the count under the Act. Plaintiffs urge that by reason of the collective bargaining agreement, defendant assumed the duty to exercise such control over the working conditions in the falling operation as would make it subject to the more stringent requirements of the Act.

A dual question of statutory and contractual interpretation is involved. The statutory provision which must be interpreted is the first section of the Act, ORS 654.305:

"Generally, all owners, contractors and subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it 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.” (Emphasis ours.)

This first section of the Act requires that there be a certain kind of relationship between plaintiffs’ decedent and defendant before the Act will apply. The Act does not extend "to any case where the person charged with doing an injury sustains no such relation by contract or otherwise different from that which he sustains to the whole public.” Drefs v. Holman Transfer Co., et al, 130 Or 452, 459, 280 P 505 (1929). It is not necessary that plaintiffs’ decedent have been directly employed by defendant. Thomas v. Foglio, 225 Or 540, 544, 358 P2d 1066 (1961). It is not in itself sufficient, however, that plaintiffs’ decedent have been employed by a contractor of defendant. Lawton v. Morgan, Fliedner & Boyce, 66 Or 292, 131 P 314, 134 P 1037 (1913).

The usual test for the requisite relationship under the Act is stated in terms of a defendant’s control over the work which involves a risk or hazard. Wilson v. P.G.E. Company, 252 Or 385, 390, 448 P2d 562 (1969). The two kinds of cases in which it has been recognized that a duty under the Act can be owed to the employees of one’s contractor are (1) where sufficient right of control is retained over the manner in which the work is conducted by the contractor’s employees; and (2) where no right of control is retained but actual control is exercised so as to result in injury to one of the contractor’s employees. Wilson v. P.G.E. Company, supra at 392. There was no actual control exercised in this case. If plaintiffs have a case under the Act, it must be upon the basis that defendant had the right of control over the manner in which the work was conducted by the employees of the Burgess Logging Company.

Without objection by the parties, the trial judge listened to conflicting testimony concerning the relationship between defendant and its contractor which ' was required by the provision in defendant’s contract with the Union, and ruled that the contractual provision did not give defendant sufficient right of control to bring it within the Act. From the trial judge’s questions and statements it is apparent that he thought that the contract did not provide that defendant should have any right to actually control the manner in which the Burgess Logging Company’s employees performed their duties but that defendant should have only the right to require the contractor to comply with the degree of safety previously required when the falling and bucking were performed by defendant’s employees. The trial judge apparently also thought that without the right to directly control the injury-creating activity, the Act did not apply. We agree with the trial judge. The contractor employed the plaintiffs’ decedent and directly controlled the work in which he was injured. Defendant only obligated itself to " require its contractors and subcontractors to maintain the standard of wages and working conditions * * *” (emphasis ours). Defendant’s control over working conditions was to be exercised upon, and not apart from, its contractor.

This is in contrast with the case upon which plaintiffs particularly rely, in which it was held that duties assumed by contract brought a defendant within the Act. In Wolsiffer v. Bechill, 76 Or 516, 146 P 513, 149 P 533 (1915), the defendant had contracted with the City of Portland to grade a street. The ordinance authorizing the improvement required that:

"The contractor or contractors for said improvement shall take entire charge of the work during its progress and shall be responsible for any loss or accident resulting from carelessness or negligence and the improvement shall be completed to the satisfaction of the executive board of the said City of Portland.” Id. at 521.

Pursuant to the ordinance, the contract contained the following condition:

"The said work shall be performed under the personal supervision of the contractor, and no part of this contract, nor any interest therein, shall be sublet, assigned or transferred without the written consent of said city, by its executive board, and no such written consent shall release the contractor from any obligation, either to said city or to the persons employed by any subcontractor, and all subcontractors shall be considered merely as employees of the contractor and may be discharged by said city for incompetency, neglect of duty or misconduct.” (Emphasis ours.) Id. at 520.

Plaintiffs also rely upon the case of Morgan v. Bross, 64 Or 63, 129 P 118 (1913), in which the defendant was the principal contractor and the plaintiff was a plumber, an employee of a subcontractor. A city ordinance required temporary floors at each story during construction, and for the want of such flooring plaintiff was injured when a brick fell upon his head. The court held that the defendant could not delegate the duty to comply with the ordinance and thus excuse itself when a subcontractor failed to construct the floor. By analogy plaintiffs argue that one who assumes the duty of control should not be allowed to pass that duty to others. This argument begs the question, however. The issue here is whether defendant contractually assumed sufficient control to come within the purview of the Act and, thus, assume the duties imposed by the Act. Plaintiff’s contention assumes the answer.³

There is another reason for holding that the Act should not apply. We stated as follows in Wilson v. P.G.E. Company, supra at 395-97:

"The purpose of the [Employers’ Liability Law] is the maximum protection of workmen engaged in hazardous occupations. Therefore, before a retained right of control by an owner should give rise to liability, that retained right of control should bear some relation to the creation of a risk of danger to workmen resulting from dangerous working conditions.

"* * * The right of defendant to take over control to attain a greater degree of safety created no risk of danger to plaintiff. Before any such right to control would relate to the creation of a risk to plaintiff, the contract would have to create a situation where the contractor would probably be less diligent concerning safety because of an expectancy that defendant would exercise the necessary care. * * *.

"The retention of the right by owners to direct the manner in which the work is done, if necessary to secure greater safety, tends to promote the same policy as that of the [Employers’ Liability Law]. * * * Therefore, if duties not otherwise required of owners are imposed because of the reservation of a right to require safety precautions, it is obvious that owners will not actively concern themselves with the workmen’s safety. As a result, the imposition of liability under the Act, because of a reservation of the right to impose safety measures, would defeat the very purpose the Act was designed to accomplish. Such an imposition of liability is contrary to the policy of the Act where no risk is created that the contractor will fail in his duties to his employees.”

To hold defendant subject to the Act in the present circumstances would defeat the very purpose of the Act, which is additional safety to workmen. It would mean that owners would refuse to enter into such contracts with unions, and, as a result, contractors would not have the additional pressure of their contractual obligation to the owner to maintain safe conditions. In addition, by no stretch of the imagination can it be argued that any risk was created that the contractor would fail in his duties of safety to his employees upon the expectation that defendant would take care of such duties, because defendant itself had no right to supervise the employees of the contractor.⁴

The judgment of the trial court is affirmed.

1 Defendant’s right to terminate the falling crew and to contract out the falling operation was adjudicated in separate litigation in the federal courts.

2 The agreement between defendant and its contractor Burgess Logging Company required Burgess to "* * * comply with * * * all * * * laws relating to the condition of labor and its safety * * However, the trial judge apparently submitted the case to the jury upon the basis that there was evidence that defendant had negligently failed to enforce this agreement.

3 The dissent’s quoted language from Harvey v. Corbett, 77 Or 51, 59-60,150 P 263 (1915), is, in our opinion, not pertinent to the present case because we conclude that the trial judge here found that it was not the intention of the parties to the agreement that defendant have actual control of the workmen.

The dissent also relies upon language from Thomas v. Poglio, 225 Or 540, 546-47, 358 P2d 1066 (1961), in which the defendant was held to come within the Act despite his not having immediate supervision of the work. However, in Thomas the defendant was in direct control of the condition of the defective machinery which was in use at the time of the accident and which use of defective machinery resulted in plaintiffs injury. Therefore, the court held he had sufficient control to come within the Act.

4 The dissent attempts to distinguish Wilson v. P.G.E. Company, 252 Or 385, 390, 448 P2d 562 (1969), from the present situation because in this case the contract with the Union imposed the duty, rather than the right, to see that safety precautions were taken. This distinction, in our opinion, is irrelevant when the rationale of Wilson is taken into consideration. There would be no possibility that the contractor would fail to use care for the safety of its workmen because of the contractual duty undertaken by defendant in its agreement with the Union.