Oregon Construction Case Law Update: Retaining Right to Control Safety Measures Will Lead to Contractor Liability
From the desk of Smith Freed Eberhard: Oregon’s Employer Liability Law (“ELL”) imposes nearly strict liability for owners, contractors, and subcontractors who are responsible for work involving a risk or danger. This liability can extend to a subcontractor’s employee’s “indirect employer” (i.e., a general contractor), if the indirect employer retains the right to control jobsite safety. Prior Oregon cases have held that merely requiring greater safety measures would not be enough to impose liability on the general contractor. In this new case, the Oregon Supreme Court clarified that retaining any right to control safety could impose liability for violations of the ELL.
Claims Pointer: In this jobsite injury case, the Oregon Supreme Court puts contractors on notice that they may be liable for jobsite injuries if they retain any right to control safety, even if they only require additional safety measures or perform additional safety inspections. This decision highlights the need for carefully crafted risk transfer provisions in contracts and the procurement of additional insurance to manage the liability exposure for jobsite injuries.
Yeatts v. Polygon Northwest Co., 360 Or 170 (August 4, 2016).
Polygon Northwest Co. (“Polygon”) was the general contractor on a townhouse project. It contracted with Wood Mechanix, LLC (“Wood Mechanix”) to frame the townhouses. Arthur Yeatts, an employee of Wood Mechanix, sustained serious injuries after he fell from the third floor of a townhouse when a guardrail he leaned against gave way. Mr. Yeatts sued Polygon, claiming that Polygon was liable for his injuries under the ELL and also claiming that Polygon was negligent (Mr. Yeatts could not sue Wood Mechanix for any fault it may have had in causing his injuries because the workers compensation laws prevent that kind of claim from...