Oregon Court of Appeals Rules Against Injured Construction Worker

Posted on Jan 23, 2015

In a recent decision, the Oregon Court of Appeals found against a construction worker who suffered a serious injury at a construction site.

The injured worker was involved in a construction project working for a subcontractor. While working on the third floor a town house under construction, a guardrail gave way, causing a fall to a concrete surface. The injured worker brought a claim under the Employer Liability Law.

This statute allows an injured worker to bring a claim against an indirect employer (in this case the general contractor) if that indirect employer is in control of "dangerous work". In order to prove this level of control, the injured worker was required to show that the defendant(general contractor) and the plaintiff’s direct employer(subcontractor) were engaged in a “common enterprise,” that the defendant retained the right to control the manner or method in which the risk producing activity was performed, or that the defendant actually did control the manner and method in which the risk producing activity was performed.

The Court first determined that the injured worker was in fact involved with “any work involving a risk or danger.” The Court relied upon the fact that the worker was involved in construction at a height of three stories. The Court then turned its attention to determining whether not the general contractor and the employer of the injured worker were involved in a “common enterprise.” To resolve this issue, the Court had to decide whether not the general contractor’s operations were integral to the overall project, whether the work involved a risk of danger to other employees or the public, whether the injured worker was "adopted" by the general contractor, or was it intermingled employee of the defendant, and whether defendant had charge of, or had responsibility for the activity that actually caused the plaintiff to suffer his injuries.

The Court of Appeals concluded that the injured construction worker could not prove that the general contractor and the injured worker’s employer or were involved in a common enterprise. In making this decision, the Court focused on who is in charge of the guardrail that gave way and caused the plaintiff’s injuries. The injured construction worker argued that the general contractor was responsible to make sure that the guard rail was properly installed, but the Court concluded there was not enough evidence to make this argument.

The Court then addressed the argument that the general contractor had a right to control how the subcontractor performed its part of the job. The Court found that because the contract between the general contractor and the subcontractor placed primary responsibility of job site safety on the subcontractor, the general contractor had given up control over that part of the project.

The injured construction worker also brought a negligence claim against the general contractor, and after reviewing the requirements for making a common law negligence claim, the Court of Appeals denied this claim as well.

In reviewing this case, the Court of Appeals seem to go to great lengths to dismiss several factual arguments. This was an appeal of a summary judgment motion, and it seems odd that the Court would not let a jury review the evidence and resolve these various issues.

The injured construction worker may be seeking review with the Oregon Supreme Court. An appeal to the Oregon Supreme Court is not automatic. The Court reviews a request to take the case, and then decides which cases it wants to hear and decide.  Most requests for review are denied.

If you suffered an on-the-job injury involving dangerous work, it is possible that you may have an Employer Liability Law claim against a general contractor or other "indirect employer." The compensation available under this claim is sometimes better than the limited benefits of an Oregon Workers' Compensation claim. However, there are time limits in bringing these claims, and ELL claims often require thorough investigation.  Call us at 503-325-8600 to discuss a potential claim.