Kemper v. MWH Constructors, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL KEMPER, Case No. 3:21-cv-145-SI

Plaintiff, ORDER

v.

MWH CONSTRUCTORS, INC., a foreign

corporation, and INTEL CORPORATION, a

foreign corporation,

Defendants.

Michael H. Simon, District Judge.

Plaintiff Michael Kemper sued Defendant MWH Constructors, Inc. (MWH) and Intel

Corporation (Intel) (collectively, Defendants) in Multnomah County Circuit Court. Defendants

removed the case to this Court. Against both Defendants, Plaintiff alleges claims of negligence

under Oregon common law, negligence per se based on Oregon’s Safe Employment Act

(“OSEA”‘), and a violation of Oregon’s Employer Liability Law (ELL), Oregon Revised

Statutes (ORS) § 654.305. Plaintiff also alleges a claim against Intel for premises liability.

Defendants move to dismiss all claims for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure.

A. Standards

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon

Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

B. Background

Plaintiff alleges that he was injured as follows:

[P]laintiff was working inside the Water Treatment Facility at

defendant Intel’s Ronler Acres Campus, attempting to locate a

wall-mounted flow meter to verify that the device was wired

correctly. After locating the flow meter, which was permanently

mounted high up on the wall with large piping running beneath it,

Kemper stepped backward to see above the piping and gain the

necessary view of the device and its wiring. As he moved

backward, plaintiff’s foot and lower leg unexpectedly hit a conduit

“stub-up” pipe that protruded from the concrete walkway surface.

Kemper lost his balance and tripped, falling backwards down to

the walkway surface.

* * *

During the fall plaintiff’s hard hat fell off his head and as he

landed, the back of Kemper’s unprotected head struck a raised

section of the concrete floor. Kemper landed with his shoulders,

back, and head up against a raised eighteen-inch (18”) concrete

curb.

ECF 1-1 at 3 (Compl. ¶¶ 4-5).

C. Negligence Claim

Defendants argue that the Court should dismiss Plaintiff’s negligence claim because it

was not foreseeable that a person would walk backwards while looking up and trip over a

“stub-up” pipe. “The concept of foreseeability embodies a prospective judgment about a course

of events; it ‘therefore ordinarily depends on the facts of a concrete situation’ and, if disputed, is

a jury question.” Piazza v. Kellim, 360 Or. 58, 69-70 (2016) (quoting Fazzolari v. Portland

School Dist. No. 1J, 303 Or. 1, 4 (1987)).

The Court disagrees with Defendants’ characterizations of Plaintiff’s allegations.

Plaintiff’s allegations do not simply describe a person walking backward while looking up.

Based on Plaintiff’s allegations, a reasonable jury could determine that it was foreseeable that

(1) placing a flow meter (that reasonably requires checking), (2) with large piping under it

blocking it from view from underneath, (3) with a trip hazard behind it, and (4) a curb behind

that, is reasonably foreseeable to cause injury. A reasonable jury could conclude that it is

reasonably foreseeable that a person checking the flow meter would need to step backward to see

the meter and might trip on the pipe and fall on the curb. Plaintiff’s allegations suffice at this

stage of the litigation to allege foreseeability under Oregon law.

Defendants next argue that the Court should dismiss Plaintiff’s negligence claim against

Intel as duplicative. Defendants assert that Plaintiff cannot allege both a common law negligence

claim and a premises liability claim against Intel. Defendants argue that the more specific

premises liability claim supersedes the negligence claim. Plaintiff responds that he pleads the

two claims in the alternative.

The only authority cited by Defendants is a case under Washington law. Hafliger v.

Georgia Pac. Consumer Prods. (Camas) LLC, 2016 WL 8710003, at *2 (W.D. Wash. Jan. 22,

2016). The Court, however, agrees with U.S. Magistrate Judge John V. Acosta that Plaintiff may

allege the claims in the alternative. Anderson v. Intel Corp., 2021 WL 1401492, at *3 (D. Or.

Apr. 14, 2021) (“The court agrees with Anderson that a plaintiff may allege negligence and

premises liability claims in the alternative. Here, Anderson pursues alternative theories of

liability: she sues Intel for negligence because she slipped and fell on a pipe strap in the

basement of Intel’s D1B building, and for premises liability because of Intel’s failure to maintain

a reasonably safe premises for Anderson as a business invitee. Accordingly, Intel’s motion to

dismiss claim one as duplicative of claim five is denied.” (citations omitted)).

D. ELL Claim

Defendants argue that Plaintiff’s ELL claims fail because Plaintiff does not allege that he

was engaged in work involving risk or danger when he was injured and because he does not

allege that Defendants had sufficient control. The Court agrees that Plaintiff fails to allege his

work was “inherently dangerous.” Kruse v. Coos Head Timber Co., 248 Or. 294, 304 (1967).

The Oregon Supreme Court has interpreted “work involving a risk or danger to . . .

employees” under ORS § 654.305 to include both the worker’s discrete task and the

circumstances under which the worker performs that task. Woodbury v. CH2M Hill, Inc., 335

Or. 154, 161-62 (2003) (holding the plaintiff’s “work involving a risk or danger” was not merely

“moving the boards to facilitate disassembly of the platform,” but included “requiring [the]

plaintiff to work at height during the assembly, use, and disassembly of the platform”). For work

to be cognizable under the ELL, it must be “so inherently dangerous or present[] dangers so

uncommon that the employment would be classed as work involving ‘risk or danger’ and thus

come under the Act.” Kruse, 248 Or. at 304.

In Anderson, Judge Acosta concluded that allegations that a worker had to walk in a

basement that was poorly lit, cluttered, dusty, and slippery were sufficient to state a claim under

the ELL. Plaintiff’s allegations here, however, do not rise to that level. He alleges a single “stub-

up” pipe that, although perhaps not in the best location, particularly combined with the

placement of the flow meter and the pipe underneath the flow meter, appears to have been visible

and in a location free from clutter and slipperiness. Although it may have been foreseeable that

someone could have missed noticing the “stub-up” pipe in entering the area to check the flow

meter and ultimately trip on it stepping backward while checking the meter, that does not make

the fact that it was there inherently dangerous under the ELL. Working around trip hazards is not

so uncommon that the employment should be classified as work involving risk or danger.

Plaintiff’s ELL claims are dismissed with leave to amend.

E. Negligence per se Claims

Defendants argue that Plaintiff does not adequately allege a claim of negligence per se

because indirect employers such as Defendants are not covered under the OSEA, citing several

opinions from the Oregon Court of Appeals. Plaintiff responds that the Court should disregard

those opinions and instead rely on an older Oregon Supreme Court decision, Miller v. Georgia

Pacific Corp., 294 Or. 750 (1983), to conclude that the Oregon Supreme Court would hold

differently. The Court finds persuasive the reasoning of U.S. District Court Judge Karin J.

Immergut on this issue:

Finally, Plaintiff cites Miller v. Georgia Pacific Corp. for the

proposition that the OSEA applies to indirect employers. In Miller,

the Oregon Supreme Court held that OSEA safety codes “apply to

all workplaces.” 294 Or. at 759. Despite this broad statement, the

court did not analyze the specific terms of individual safety codes

as the Oregon Court of Appeals did in later cases. Plaintiff has not

demonstrated any “convincing evidence” that the Oregon Supreme

Court would reject the intermediate appellate court’s decisions in

Brown and George. See In re Watts, 298 F.3d 1077, 1082-83 (9th

Cir. 2002) (holding that a federal court sitting in diversity

jurisdiction is bound by decisions of the state intermediate

appellate court absent “convincing evidence” that the state

supreme court would reject them). Accordingly, this Court grants

Defendant Gardner’s motion to dismiss count four of Plaintiff’s

second claim.

Miller v. Goodyear Tire & Rubber Co., 434 F. Supp. 3d 877, 886 (D. Or. 2020) (citations

omitted).

Plaintiff also argues that the OSEA applies to owners, such as Intel. The Court agrees

with Defendants that Plaintiff has not alleged in the Complaint any provision of the OSEA that

applies to owners. Thus, Plaintiff’s negligence per se claims are dismissed. Plaintiff has to leave

to amend these claims against Intel if Plaintiff can allege any provision of the OSEA relating to

owners and facts supporting claims under such a provision. Plaintiff does not have leave to

amend these claims against MWH.

F. Premises Liability Claim

Defendants move to dismiss Plaintiff’s claim against Intel for premises liability, making

essentially the same argument they made against Plaintiff’s negligence claim—that the harm

alleged by Plaintiff was not foreseeable. For the same reasons the Court denied Defendants’

motion to dismiss Plaintiff’s negligence claim, the Court denies this portion of Defendants’

motion.

G. Conclusion

The Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Dismiss

(ECF 6). The Court dismisses Plaintiff’s claims of negligence per se and violation of Oregon’s

Employer Liability Law. Plaintiff has leave to file an amended complaint by May 26, 2021, if

Plaintiff can cure the deficiencies identified in this Order.

IT IS SO ORDERED.

DATED this 12th day of May, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge