ELL claim in Oregon

2016This court addressed a similar issue in Cortez, where the court concluded that the defendant retained a sufficient right to control the manner or method of the risk- producing activity to create a triable issue with respect to the plaintiff’s ELL claim, but nevertheless determined that the trial court properly had granted summary judgment to the defendant on a companion negligence claim. 356 Or at 277 .

2016This court addressed a similar issue in Cortez, where the court concluded that the defendant retained a sufficient right to control the manner or method of the risk- producing activity to create a triable issue with respect to the plaintiff’s ELL claim, but nevertheless determined that the trial court properly had granted summary judgment to the defendant on a companion negligence claim. 356 Or at 277 .

2016It requires that[,] in the operation of dangerous machinery[,] the employer 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(s) and devices.’ ” Fromme v. Lang & Co., 131 Or 501, 505 , 281 P 120 (1929). 198 Yeatts v. Polygon Northwest Co. Polygon’s motion for summary judgment with respect to that specification of plaintiff’s

2016It requires that[,] in the operation of dangerous machinery[,] the employer 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(s) and devices.’ ” Fromme v. Lang & Co., 131 Or 501, 505 , 281 P 120 (1929). 198 Yeatts v. Polygon Northwest Co. Polygon’s motion for summary judgment with respect to that specification of plaintiff’s

2021Based on those contract provisions, the court held that there was “sufficient evidence that Polygon retained the right to control the risk-producing activity so as to preclude sum- mary judgment in favor of Polygon with respect to that spec- ification of plaintiff’s ELL claim.” Id.

2019In their second assignment of error, plaintiffs assert that the trial court erred in granting summary judgment in favor of Hampton on plaintiffs' ELL claim. 4 "Oregon's ELL imposes liability on 'all owners, contractors or subcontractors and other persons having charge of, or responsibility for' work involving a risk or danger." Yeatts v. Polygon Northwest Co. , 360 Or. 170 , 179, 379 P.3d 445 (2016) (quoting ORS 654.305 ). 5 In addition to a worker's direct employer, ELL liability may be imposed on an indirect employer "who (1) is engaged with the plaintiff's direct employer in a common enterp

2014The Court of Appeals did not address Swanson’s argument that “plaintiff [had] failed to present sufficient facts [on summary judgment] to establish his negligence claim” because it determined that Swanson had not made that argument to the trial court. 248 Or App at 449 . 9 Finally, the court held that plaintiff had no ELL claim *262 against Swanson because Swanson was not a person “having charge of, or responsibility for, any work involving a risk or danger to [plaintiff].” Id. at 446 .

2014The Court of Appeals did not address Swanson’s argument that “plaintiff [had] failed to present sufficient facts [on summary judgment] to establish his negligence claim” because it determined that Swanson had not made that argument to the trial court. 248 Or App at 449 . 9 Finally, the court held that plaintiff had no ELL claim *262 against Swanson because Swanson was not a person “having charge of, or responsibility for, any work involving a risk or danger to [plaintiff].” Id. at 446 .

2025Cite as 343 Or App 514 (2025) 521 in favor of [the defendant] with respect to that specification of plaintiff’s ELL claim”).5 That is the case even though it was FSW, not Vigor, that was the party with the relevant expertise.

2021Polygon relies on several cases, including Howard v. Foster & Kleiser Co., 217 Or 516 , 332 P2d 621 (1958), and Galer v. Weyerhaeuser Timber Co. et al, 218 Or 152 , 344 P2d 544 (1959), to support its argument that the nondelegable nature of ELL duties “has actually been rejected in the context of an ELL claim made against a party other than an injured worker’s actual employer.” (Emphasis omitted.) However, Polygon misreads those cases.

2021Polygon relies on several cases, including Howard v. Foster & Kleiser Co., 217 Or 516 , 332 P2d 621 (1958), and Galer v. Weyerhaeuser Timber Co. et al, 218 Or 152 , 344 P2d 544 (1959), to support its argument that the nondelegable nature of ELL duties “has actually been rejected in the context of an ELL claim made against a party other than an injured worker’s actual employer.” (Emphasis omitted.) However, Polygon misreads those cases.

2021On remand, plaintiff reasserted his ELL claim against Polygon, based on a retained right of control theory under ORS 654.305, which provides: “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 Cite as 313 Or App 220 (2021) 225 limb, limited only by the necessity for preserving the effi- ciency of the structure, machine or other apparatus or device, and wit

2021On remand, plaintiff reasserted his ELL claim against Polygon, based on a retained right of control theory under ORS 654.305, which provides: “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 Cite as 313 Or App 220 (2021) 225 limb, limited only by the necessity for preserving the effi- ciency of the structure, machine or other apparatus or device, and wit

2021Polygon relies on several cases, including Howard v. Foster & Kleiser Co., 217 Or 516 , 332 P2d 621 (1958), and Galer v. Weyerhaeuser Timber Co. et al, 218 Or 152 , 344 P2d 544 (1959), to support its argument that the nondelegable nature of ELL duties “has actually been rejected in the context of an ELL claim made against a party other than an injured worker’s actual employer.” (Emphasis omitted.) However, Polygon misreads those cases.

2021Polygon relies on several cases, including Howard v. Foster & Kleiser Co., 217 Or 516 , 332 P2d 621 (1958), and Galer v. Weyerhaeuser Timber Co. et al, 218 Or 152 , 344 P2d 544 (1959), to support its argument that the nondelegable nature of ELL duties “has actually been rejected in the context of an ELL claim made against a party other than an injured worker’s actual employer.” (Emphasis omitted.) However, Polygon misreads those cases.

2003That is so, plaintiff argues, because the Oregon Supreme Court held in Lakin v. Senco Products, 329 Or 62 , 987 P2d 463 , on recons, 329 Or 369 , 987 P3d 476 (1999), that ORS 18.560(1) is unconstitutional as applied to common-law negligence claims.

2003That is so, plaintiff argues, because the Oregon Supreme Court held in Lakin v. Senco Products, 329 Or 62 , 987 P2d 463 , on recons, 329 Or 369 , 987 P3d 476 (1999), that ORS 18.560(1) is unconstitutional as applied to common-law negligence claims.

2003That is so, plaintiff argues, because the Oregon Supreme Court held in Lakin v. Senco Products, 329 Or 62 , 987 P2d 463 , on recons, 329 Or 369 , 987 P3d 476 (1999), that ORS 18.560(1) is unconstitutional as applied to common-law negligence claims.