Standards Applicable to Construction Site Safety, Conditions and Injuries

Cain v. Bovis Lend Lease, Inc., 817 F. Supp. 2d 1251  (D. Or. 2011)

A subcontractor employee fell from a ladder at a hospital renovation site and suffered injuries.  The injured worker sued the hospital, the renovation general contractor, the ladder fabricator (a subcontractor) and the architect.  The worker’s direct employer was statutorily immune from liability.  The case is the review of summary judgment motions by all parties resulting in a recommended series of decisions by a federal magistrate.

The opinion is lengthy and should be carefully reviewed in detail but the salient highlights for construction project participants may be summarized.

Claims were brought under the Oregon Safe Employment Act (OSEA); Oregon Employer Liability Act (ELA); common law negligence and premises liability.

The Court in granting and denying the various summary judgment motions made the following, inter alia, procedural and substantive rulings:

• A non-moving party for summary judgment, when the burden has shifted to demonstrate existence of genuine facts for trial, “must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor…all justifiable inferences are to be drawn in its [non-moving] favor.”

• The OSEA claim against the architect is granted because it was neither the direct employer nor owner of the facility.  A common law negligence claim remains.

• A private action for damages can, under certain facts, be brought under the OSEA if a four part test is met: 1) defendant violated the statute; 2) plaintiff was injured as a result of the violation; 3) plaintiff was a member of class protected by the statute; and 4) plaintiff suffered type of injury against which the statute protected.

• OSEA provisions apply to employer, but under some provisions also to owners or lessees of real property that constitutes a “place of employment”.

• Under the ELA, the general contractor in this case was not an indirect employer and therefore not liable under OSEA, which does not cover indirect employers.

• The hospital may be liable under OSEA where the worker qualifies as an employee and the hospital was the owner of the place of employment.

• The ladder fabricator is not liable under OSEA because it lacks any employment relationship with the worker.

• The hospital and general contractor may be liable for premises liability, but there are numerous issues for jury determination on this subject.  The court gives extended discussion to invitee and licensee legal standards.

• The general contractor may be liable under the ELA.  The determination must be made under a three part test for indirect employer liability: 1) the common enterprise test; 2) the retained control test; or 3) the actual control test.  General contractor arguments that it was not responsible for architect’s code compliance and design work were left unanswered.

• On the subject of negligence, the Court reviewed the “but for” and “substantial factor’ standards in the context of causation.  It determined that most likely the “substantial factor” standard applies where liability may rest with multiple defendants.

• In the end the Court dismissed the negligence claims as being redundant of the premises liability claims.

• The discovery rule applies to statute of limitations claims.

• A new unpled claim cannot be interjected in the form of a summary judgment motion response.

• An indemnity claim for defense costs only, may be asserted even though the indemnitee is not found to be negligent.


Oregon statutes and common law will provide causes of actions and defenses for multiple participants in construction projects where injuries are sustained by a worker.  The availability of these options will rest on specific facts, statutory language and existing appellate case law.

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