Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1984)

MEMORANDUM^* 

Gerald Sampson appeals the district court's order granting the motion for summary judgment brought by Boise Cascade Corporation and dismissing his action. Sampson, an employee of BTO Logging Co., a subcontractor of Boise Cascade, contends that Boise Cascade's negligence caused a logging accident that injured him. Sampson's complaint against Boise Cascade was filed in Oregon state court and removed to district court. Only two of the three counts are at issue in this appeal.

In September 1984, Sampson was working for BTO preparing logs for transport at a mountainside landing site on a logging road called "Road 4380000." At this landing site, the road was approximately 12 feet in width. Also located on the landing site was a log loader, a piece of heavy machinery. The loader's tracks were 14-15 feet long and 11-12 feet wide; the loader's cab and counterweight were 14-15 feet long. The terrain above and below the landing site had a 70 percent slope and clearance between the loader and the embankment varied between six inches and one foot. On September 25, 1984, Sampson was seriously injured when he was pinned by the loader's counterweight against a large rock protruding from the embankment above the site.

Sampson's complaint claimed that Boise Cascade was liable under Oregon's law of negligence and also under Oregon's interrelated Safe Employment Act, Or.Rev.Stat. Sec. 654.002, and Employers' Liability Act, Or.Rev.Stat. Sec. 654.305.

Appellant's negligence claim placed the district court, and now places this court, into a rapidly developing area of Oregon state law. The district court dismissed the claim based upon its reading of three recent decisions of the Oregon Supreme Court, Fazzolari v. Portland School District No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), Kimbler v. Stillwell, 303 Or. 23, 734 P.2d 1344 (1987), and Donaca v. Curry County, 303 Or. 30, 734 P.2d 1339 (1987), all decided approximately six months before the district court's order we now review.

The district court recognized that with these cases, the Oregon Supreme Court has commanded that the focus of inquiry for most tort actions must shift away from the outmoded concept of "duty" toward issues of foreseeability of harm from a defendant's conduct. Nevertheless, the district court permitted defendant Boise Cascade to argue successfully that by virtue of the plaintiff's status as an employee of an independent contractor, Boise Cascade had no duty to the plaintiff.

As we read Fazzolari, however, it does not permit a defendant to invoke such status to form the basis of a "lack of duty" defense. Rather, Fazzolari--as summarized in Kimbler, decided the same day--stands for the proposition that "duty" based on a status or relationship is to be used only as a special ground for establishing liability, relevant only when the plaintiff invokes a particular relationship as the source of a special duty upon which plaintiff relies. Kimbler, 734 P.2d at 1346, 303 Or. at 26. Fazzolari thus appears aimed at preventing the kind of defense asserted by the defendant in this case.

We must also disagree, for similar reasons, with the district court's characterization of this case as one of the "extreme" cases which Donaca recognized as appropriate for summary judgment. See Donaca, 303 Or. at 38, 734 P.2d at 1344. The district court based its characterization upon the contractual relationship between Boise Cascade and BTO, and not upon the state of this record with regard to foreseeability. The central issue under Oregon law has apparently become the foreseeability of harm to plaintiff from the particular conduct of defendant allegedly responsible for plaintiff's injury. It is not yet apparent whether genuine issues of material fact exist as to this issue. The district court did not address it. We do not foreclose the possibility of summary judgment at a future time. See Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552-53, 2555 (1986).

With respect to the Employers' Liability Act claim, the district court focused in major part, as it did in the negligence count, upon the independent contractor relationship between Boise Cascade and BTO. It concluded that BTO was the "employer" responsible for providing a safe work site. The district court also observed that no evidence showed that Boise Cascade actually controlled the manner in which BTO conducted the operation.

The purpose of the Oregon Employers' Liability Act, however, was to impose higher standards of care than the common law would impose upon employers engaged in dangerous work. The Oregon Supreme Court has for many years recognized that a third party may be liable to a plaintiff for negligence on a theory that the third party was in effect an "indirect" employer, even though the employee is on the payroll of the direct employer. See Thomas v. Foglio, 225 Or. 540, 545, 358 P.2d 1066, 1068 (1961). What must be shown in order to impose such liability under the Oregon statute has been most recently and coherently explained in Sacher v. Bohemia, Inc., 302 Or. 477, 731 P.2d 434 (1987). The court there recognized that a defendant may be liable for injuries to the 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, 731 P.2d at 440.

In order to determine whether such liability exists, the court must focus upon the particular activity alleged to have caused the injuries in question. The critical question here is thus whether Boise Cascade actually controlled or reserved the right to control the activities that caused the plaintiff's injuries. The plaintiff's contention apparently is that Boise Cascade actually controlled or reserved the right to control site selection, and that negligent site selection caused plaintiff's injuries. However, the record is insufficient for us to determine whether a genuine issue of material fact exists either as to Boise Cascade's responsibility for that aspect of the operation or as to whether site selection was a cause of the injuries.

Accordingly, summary judgment upon defendant's motions was improper, and we REVERSE and REMAND for further proceedings.