Thom v. Rokstad Power Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TRACY L. THOM and JENNIFER J. THOM, Case No.: 3:23-cv-00454-AN

Plaintiffs,

v.

OPINION AND ORDER

ROKSTAD POWER INC.,

Defendant.

Plaintiffs Tracy L. Thom and Jennifer J. Thom bring this action against defendant Rokstad

Power Inc. ("Rokstad"), alleging common law negligence, violations of the Employer Liability Law

("ELL") under Oregon Revised Statute §§ 654.305 & 654.310, negligence per se under the Oregon Safe

Employment Act ("OSEA"), and loss of consortium. Rokstad filed a Motion to Dismiss for Failure to State

a Claim, ECF [4], seeking dismissal of plaintiffs' ELL and OSEA claims. Oral argument was held on July

10, 2023. For the reasons set forth below, defendant Rokstad's motion is GRANTED in part, and DENIED

in part.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, the complaint must allege

"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). The complaint is construed in favor of the plaintiff, and all uncontroverted allegations in

the complaint are taken as true. Bare assertions that amount to mere "formulaic recitation of the elements"

of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).

To state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts"

to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

BACKGROUND

Because Rokstad brings a motion to dismiss, the following facts are derived from plaintiff's

First Amended Complaint. On February 18, 2021, plaintiff Tracy L. Thom ("plaintiff") was working as a

journeyman carpenter employee of Portland General Electric Company ("PGE") directing traffic as part of

emergency operation efforts involving mutual aid at the Salem PGE Yard. Rokstad was a subcontractor

assisting PGE in the emergency and storm response that was being mobilized from the Salem PGE Yard.

While directing traffic, plaintiff's left foot was run over by a truck and trailer owned by Rokstad that was

operated by one of Rokstad's employees. Plaintiff suffered numerous fractures and abrasions and

underwent several surgical procedures related to the incident.

DISCUSSION

A. ELL Claims

Plaintiff asserts two bases for his ELL claims: ORS 654.305 and ORS 654.310.

1. ORS 654.305

ORS 654.305 states:

"Generally, all owners, contractors or subcontractors and other persons having charge of,

or responsibility for, any work involving a risk of 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 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 appliances and devices."

The ELL applies both to direct and indirect employers. See Sacher v. Bohemia, Inc., 302 Or. 477, 482-83,

731 P.2d 434 (1987). Indirect employer liability is premised on three theories: (1) common enterprise; (2)

retained right to control; and (3) actual control. Thus, to prove that an employer is an indirect employer, a

plaintiff must establish that the employer (1) engaged with the plaintiff's direct employer in a common

enterprise; (2) retained the right to control the manner or method in which the risk-producing activity was

performed; or (3) actually controlled the manner or method in which the risk-producing activity was

performed. Woodbury v. CH2M Hill, Inc., 335 Or. 154, 160, 61 P.3d 918 (2003). Plaintiff alleges all three

theories in his complaint.

a. Common Enterprise

A common enterprise exists where (1) two employers (the plaintiff's direct employer and

a third-party defendant employer) participate in a project of which the defendant employer's operations are

an "integral" or "component" part; (2) the work involves a risk or danger to the employees or the public;

(3) the plaintiff is an "employee" of the defendant employer; and (4) the defendant has charge of or

responsibility for the activity or instrumentality that causes the plaintiff's injury. Sacher, 302 Or. At 486-

87. A plaintiff is an employee of the defendant employer if they are (1) an adopted employee, (2) an

intermingled employee, or (3) an employee of an independent contractor hired by the defendant where the

defendant retains or exercises a right to control the risk-creating activity or instrumentality. Id. at 486.

Rokstad argues that dismissal is appropriate because plaintiff has failed to show that (1)

his work involved a risk or danger; (2) plaintiff was Rokstad's adopted employee, intermingled employee,

or an employee of an independent contractor hired by Rokstad; or (3) that Rokstad had charge of or

responsibility for the activity or instrumentality that caused plaintiff's injuries. The Court disagrees.

i. Component or Integral Participation

Although plaintiff's complaint may lack specificity in the type of work that Rokstad was

engaged in as a subcontractor on the site, the complaint adequately alleges that Rokstad's operations were

an "integral" or "component" part of the emergency and storm response operation. In addition to alleging

that Rokstad was a subcontractor on the site, plaintiff alleges that Rokstad is a "power line construction

company" that works with "various public and private sector organizations" and offers services that include

"immediate emergency and storm response, distribution, transmission, live line work and much more." At

this stage, these allegations are sufficient to demonstrate that Rokstad was not merely furnishing equipment,

but rather, was actively participating in the emergency and storm response at the Salem PGE Yard. See

Thomas v. Folgio, 225 Or. 540, 550, 358 P.2d 1066 (1961) (distinguishing a defendant's interest in a

common enterprise when it merely furnishes equipment from when it has charge of equipment).

ii. Work Involving Risk or Danger

The question of whether plaintiff's work involved risk or danger is generally a question for

the jury, unless "no reasonable jury could conclude that risk or danger was involved." See Quirk v. Skanska

USA Building, Inc., No. 3:16-cv-00352-AC, 2018 WL 247537, at *8 (D. Or. May 30, 2018); Skeeters v.

Skeeters, 273 Or. 204, 216, 389 P.2d 313 (1964) ("[W]hether an activity in which an employee is engaged

involves risk or danger is a question of fact to be determined by the jury."). The scope of work that is

assessed includes "the entire enterprise with all of the component parts necessary to the completion of the

enterprise in which both employers have joined to accomplish." Thomas, 225 Or. at 549-50. Here, plaintiff

has adequately alleged that his work involved risk or danger. The project was occurring at 6:45 a.m. on

February 18, 2021, indicating that it was still dark outside; the project involved emergency and storm

response operations, indicating that the weather was extreme; and plaintiff was working around large trucks

with loaded trailers. At this stage, plaintiff has sufficiently pled that his work involved risk or danger.

iii. Plaintiff as Rokstad's Employee

A plaintiff becomes an adopted employee when "the plaintiff is performing work on a

project of which defendant's operations are an integral part." Id. at 545. Here, plaintiff was performing

work on a project of which Rokstad's operations were an integral part. Based on the alleged facts in the

complaint, Rokstad was assisting as a subcontractor in the emergency and storm response and was actively

participating in that project. Taking these allegations as true, plaintiff has adequately alleged that he was

an adopted employee.

iv. Rokstad's Charge of or Responsibility for Work

Finally, plaintiff has adequately pled that Rokstad had charge over the instrumentality that

caused his injury. The Oregon Supreme Court squarely addressed this issue in Thomas when it examined,

"whether an employer can be regarded as 'having charge of' work where the component

part of the general undertaking for which he is responsible does not involve any risk-

creating activity on the part of his employee but does call for the use of equipment over

which he has control and which, if not maintained with proper safeguards, necessarily

exposes the employees of the other employer to an unreasonable risk in the course of

carrying on the common enterprise."

Id. at 549. Ultimately, the court held that "the defendant had 'charge of' and was 'responsible for' that part

of the job or 'work' which consisted of furnishing safe equipment." Id. at 550. Like the defendant in

Thomas, Rokstad's participation called for the use of equipment over which it had control, and which had

the potential to expose plaintiff to an unreasonable risk in the course of carrying on the common enterprise.

Therefore, plaintiff has adequately pled a common enterprise theory of indirect employer liability.

b. Retained Right to Control and Actual Control

As for whether plaintiff has adequately alleged that Rokstad retained the right to control,

or actually controlled, the manner or method in which the risk-producing activity was performed, Flores v.

Metro Machinery Rigging, Inc., 99 Or. App. 636, 783 P.2d 1024 (1989) is instructive. In Flores, the

plaintiff brought an ELL claim against the subcontractor working on the construction site with the plaintiff's

direct employer. The plaintiff's employer hired the subcontractor to assist in installing an overhead crane

in the ceiling of the construction site. Id. at 638. The subcontractor brought a personlift and a forklift to the

construction site, which were both used by the subcontractor's employees. Id. The lifts leaked small

amounts of hydraulic fluid on the floor, which the plaintiff slipped on and injured himself. Id. The trial

court granted the subcontractor's motion to dismiss the plaintiff's ELL claims, agreeing that the plaintiff

had failed to state a claim for relief. Id.

The Court of Appeals reversed, holding that the plaintiff had adequately alleged that the

subcontractor retained a right to control by pleading that, on the date of the injury, the subcontractor was

"in exclusive control and operating" the lifts. Id. at 640. Further, the court found that "[a]lthough [the

subcontractor] had no direct control over [plaintiff] or his work activities, it was working on the same

project, in the same location and at the same time as his employer. While doing so, [the subcontractor]

operated and maintained potentially dangerous equipment." Id. Therefore, the court held that the plaintiff

had adequately alleged that the subcontractor was his indirect employer.

Like the plaintiff in Flores, plaintiff in this case has alleged that Rokstad was in exclusive

control and operation of the potentially dangerous machinery that caused his injury. Further, plaintiff has

alleged that Rokstad was working on the same project, in the same location, at the same time as PGE.

Plaintiff has also alleged that in the course of working on that project, Rokstad retained control of, and

actually controlled, potentially dangerous machinery that caused plaintiff's injury. Therefore, plaintiff has

adequately pled that Rokstad was his indirect employer under ORS 654.305 and this claim cannot be

dismissed.

2. ORS 654.310

Plaintiff asserts a negligence per se claim under ORS 654.310. ORS 654.310

states:

"All owners, contractors, subcontractors, or persons whatsoever, engaged in the

construction, repairing, alteration, removal or painting of any building, bridge, viaduct or

other structure, or in the erection or operation of any machinery, or in the manufacture,

transmission and use of electricity, or in the manufacture or use of any dangerous appliance

or substance, shall see that all places of employment are in compliance with every

applicable order, decision, direction, standard, rule or regulation made or prescribed by the

Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295,

654.412 to 654.423 and 654.750 to 654.780."

Plaintiff alleges that Rokstad violated 29 C.F.R. § 1926.21(b) and (b)(2). Subsection (b)

contains no pertinent language; however, subsection (b)(2) states, "The employer shall instruct each

employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work

environment to control or eliminate any hazards or other exposure to illness or injury." Rokstad argues that

plaintiff has failed to allege a specific rule or regulation that it violated because the regulations cited by

plaintiff apply only to employers. For the same reasons outlined above, plaintiff has adequately pled that

Rokstad was his indirect employer; therefore, these regulations apply with equal force to Rokstad. See

Quirk, 2018 WL 2437537, at *24 (finding that ORS 654.310 applies to indirect employers). Plaintiff's ELL

claim under ORS 654.310 is adequately pled.

B. OSEA Claim

Rokstad also moves to dismiss plaintiff's negligence per se claim under the OSEA. Under

the OSEA, a plaintiff must allege that (1) defendant violated a statute; (2) plaintiff was injured as a result

of that violation; (3) plaintiff was a member of the class of persons meant to be protected by that statute;

and (4) the injury that plaintiff suffered was of a type that the statute was enacted to prevent. Miller, 434

F. Supp. 3d at 884.

To adequately plead an OSEA claim, a plaintiff must reference specific regulations or

statutes that the defendant allegedly violated. Here, plaintiff pled 29 C.F.R. § 1926.21(b) and (b)(2).

However, these regulations apply only to employers. Plaintiff argues that the OSEA applies with equal

force to indirect employers; however, this argument has been foreclosed by Oregon's courts. See Flores,

99 Or. App. at 641 ("The [OJSEA, unlike the EL[L] does not extend its coverage to indirect employees.").

Plaintiff also argues that Rokstad is an owner under the OSEA. But a defendant owner is

liable under the OSEA only if "the regulation whose violation underlies the OSEA claim is one that either

explicitly, or by nature, imposes obligations on owners of premises." Brown v. Boise-Cascade Corp., 150

Or. App. 391, 404 (1997). The regulations cited by plaintiff reference only "employers," and do not

explicitly, or by their nature, impose obligations on owners. See id. (noting that regulations "which pertain

to work practices or methods, as opposed to requirements pertaining to workplace structures or safeguards,"

may not apply to owners). Therefore, plaintiff's OSEA claim fails to state a plausible claim for relief.

CONCLUSION

Accordingly, defendant Rokstad's Motion to Dismiss, ECF [4], is GRANTED in part, and

DENIED in part. Count Four of plaintiff's First Amended Complaint, negligence per se under the Oregon

Safe Employment Act, is DISMISSED.

IT IS SO ORDERED.

DATED this 2nd day of August, 2023.

Ce

Adrienne Nelson

United States District Judge