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Greg Reinert

The Oregon Court of Appeals and Supreme Court decisions regarding Yeatts v. Polygon Northwest Company, have significantly shaped the application of Oregon’s Employer Liability Law (ELL).  The claim arose out of a worksite injury to Arthur Yeatts, an employee of Wood Mechanix, LLC, a subcontractor hired by general contractor Polygon Northwest to frame a residential townhouse construction project.  Per its contract with Polygon, Wood Mechanix was required to carry liability insurance and name Polygon as an additional insured.  That contract also featured provisions regarding safety, which featured prominently in the courts’ application of the ELL. The contract placed primary safety responsibility on Wood Mechanix, but Wood Mechanix was required to report to Polygon and was directed to “take all necessary safety precautions pertaining to its work and the conduct thereof, including but not limited to, compliance with all applicable laws, ordinances, rules[,] regulations and orders issued by a public authority, whether federal, state, local or other, the federal Occupational Safety and Health Act, the Oregon Safe Employment Act, and any safety measures requested by [Polygon].”  Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 174 (2016) (emphasis added).  Testimony about the project also established that Polygon had developed its own site-specific safety plan.  That safety plan included provisions regarding the use of guardrails and fall protection that were relevant to Yeatts’ injury.

On December 31, 2014, the Oregon Court of Appeals issued a decision granting Polygon’s motion for summary judgment.  Yeatts v. Polygon Nw. Co., 268 Or. App. 256, 341 P.3d 864 (2014).  It dismissed the plaintiff’s ELL claim based on the following holdings: (1) the contractor (Polygon) and subcontractor (Wood Mechanix) were not engaged in a common enterprise; (2) the contractor (Polygon) did not retain the right to control the manner in which employees of the subcontractor (Wood Mechanix) performed their work at height; (3) the contractor (Polygon) did not actually control the manner or method of the framing done by the subcontractor (Wood Mechanix); and (4) the contractor (Polygon) had no common law duty to the employee (Yeatts) to design, construct, and maintain guardrails at the project. 

The latter Court of Appeals decision was appealed and on August 4, 2016 the Oregon Supreme Court remanded the case after affirming part of the Court of Appeals decision but also reversing in part.  Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 379 P.3d 445 (2016).  The Supreme Court held the contractor (Polygon) was not engaged in a common enterprise with the subcontractor (Wood Mechanix) and did not exercise actual control over the risk producing activity.  However, it also held there was a question of fact regarding whether Polygon retained the right to exercise control over the risk producing activity. 

On remand, the jury found that  Polygon was not liable for the plaintiff’s injuries under the ELL.  The plaintiff appealed and the Oregon Court of Appeals issued a decision on July 14, 2021.  Yeatts v. Polygon Nw. Co., 313 Or. App. 220, 496 P.3d 1060 (2021).  The Court of Appeals reversed the jury’s decision and remanded the matter yet again.  The Court of Appeals held the trial court should not have denied the plaintiff’s request for the following jury instruction: an employer subject to the ELL cannot delegate its duties.  The Court of Appeals further explained that the critical factual issue with delegation is whether the contractor (Polygon) retained the right to control the risk producing activity (i.e., the guardrails).  The Court of Appeals held that the trial court erred because it did not instruct the jury as follows: if the contractor (Polygon) retained the right to control the risk producing activity, then it could not delegate that duty under the ELL. 

 The most recent Yeatts decision has the potential to expand the application of the ELL against contractors when one of its subcontractors’ employees suffers an injury or death.  At the heart of the most recent Yeatts decision is a factual issue of whether a contractor has contractual authority over the safety practices and methods of its subcontractors.  If it retains ultimate control over those safety practices and methods, the recent Yeatts decision says that right to control cannot be delegated.  This means the contractor has to balance its interest in ultimate project control against the likelihood it will be considered an ELL subject employer if it does retain such control.