170 August 4, 2016 No. 53

IN THE SUPREME COURT OF THE

STATE OF OREGON

Arthur YEATTS;

and Nancy Doty, Inc.,

Special Fiduciary for Arthur Yeatts,

Petitioners on Review,

and

Matthew WHITMAN,

Plaintiff,

v.

POLYGON NORTHWEST COMPANY,

a foreign corporation,

Respondent on Review.

(CC CV08020124; CA A150199; SC S062977)

On review from the Court of Appeals.*

Argued and submitted November 9, 2015.

J. Randolph Pickett, Pickett Dummigan LLP, Portland, 

argued the cause for petitioners on review. Jeffrey A. 

Bowersox, Bowersox Law Firm PC, Portland, filed the 

brief for petitioners on review. With him on the brief were 

J. Randolph Pickett, R. Brendan Dummigan, Kimberly O. 

Weingart, Ron K. Cheng, Pickett Dummigan LLP, Portland, 

and Scott M. Supperstein, Law Office of Scott Supperstein, 

P.C., Portland.

Bruce H. Cahn, Ball Janik LLP, Portland, argued the 

cause and filed the brief for respondent on review. With him 

on the brief was Amy Heverly.

W. Eugene Hallman, Pendleton, filed a brief on behalf of 

amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice; Kistler, Walters, Landau, 

Baldwin, and Brewer, Justices. **

______________

** Appeal from Clackamas County Circuit Court, Jeffrey S. Jones, Judge.

268 Or App 256, 341 P3d 864 (2014).

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case. Nakamoto, J., did not participate in the consideration or decision 

of this case.
Cite as 360 Or 170 (2016) 171

BREWER, J.

The decision of the Court of Appeals is affirmed in part 

and reversed in part. The decision of the circuit court 

is affirmed in part and reversed in part, and the case is 

remanded to the circuit court for further proceedings.

Walters, J., concurred and filed an opinion.

Case Summary: Plaintiff, the direct employee of a subcontractor working on 

a construction jobsite, brought claims for relief against the general contractor 

under Oregon’s Employer Liability Law (ELL), ORS 654.305 to 654.336, and for 

common-law negligence, in which he sought damages for injuries that he suffered 

from a fall from the third floor of the jobsite. The circuit court granted summary 

judgment in favor of defendant on both of plaintiff’s claims, after concluding that 

there were no genuine issues of material fact and that defendant was entitled 

to prevail as a matter of law. On appeal, the Court of Appeals affirmed. Held: 

On plaintiff’s ELL claim, (1) defendant and subcontractor were not engaged in 

a common enterprise because plaintiff presented no evidence that defendant’s 

employees or equipment were engaged in framing work on the project or in the 

design, assembly, or maintenance of the guardrail that failed; (2) plaintiff did 

not present sufficient evidence that defendant actually controlled the manner or 

method in which the subcontractor performed the framing at a dangerous height; 

and (3) plaintiff presented sufficient evidence that defendant retained the right 

to control the method or manner in which the subcontractor performed the riskproducing activity to preclude summary judgment in favor of defendant where the 

parties’ contract permitted defendant to require additional safety measures and 

to inspect subcontractor’s work in its entirety. On plaintiff’s negligence claim, 

defendant had no common law duty to plaintiff to discover, warn against, or avoid 

unknown dangerous conditions related to fall protection for the framing work 

because defendant relied on the expertise and knowledge of the subcontractor for 

the design, construction, and maintenance of the guardrails for fall protection.

The decision of the Court of Appeals is affirmed in part and reversed in part. 

The decision of the circuit court is affirmed in part and reversed in part, and the 

case is remanded to the circuit court for further proceedings.
172 Yeatts v. Polygon Northwest Co.

BREWER, J.

Plaintiff, the direct employee of a subcontractor 

working on a construction jobsite, fell while framing the 

third floor of a townhome that was under construction. In 

this action, plaintiff brought claims for relief against the 

general contractor under Oregon’s Employer Liability Law 

(ELL), ORS 654.305 to 654.336, and for common-law negligence, in which he sought damages for injuries that he suffered in the fall.

The trial court granted summary judgment in 

favor of the general contractor, Polygon Northwest Company 

(Polygon), on both of plaintiff’s claims, after concluding 

that there were no genuine issues of material fact and that 

Polygon was entitled to prevail as a matter of law. On appeal, 

the Court of Appeals affirmed. Yeatts v. Polygon Northwest 

Co., 268 Or App 256, 341 P3d 864 (2014). On review, we 

conclude that plaintiff presented sufficient evidence to withstand a motion for summary judgment on the specification 

of his ELL claim that Polygon retained a right to control the 

method or manner in which the risk-producing activity was 

performed. Accordingly, we reverse the Court of Appeals 

decision affirming the dismissal of the retained right of control specification of plaintiff’s ELL claim, reverse the trial 

court’s judgment regarding that specification, and remand 

that claim to the trial court for further proceedings. We 

affirm the decisions of the Court of Appeals and the trial 

court with respect to plaintiff’s negligence claim and the 

remaining specifications of his ELL claim.

I. STANDARD OF REVIEW

When reviewing a trial court’s grant of summary 

judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most 

favorable to the nonmoving party. Jones v. General Motors 

Corp., 325 Or 404, 420, 939 P2d 608 (1997). We therefore 

view the facts in the summary judgment record in the light 

most favorable to plaintiff.

II. FACTS

Polygon was the general contractor for a residential 

townhome development project. On behalf of the developer, 
Cite as 360 Or 170 (2016) 173

Polygon signed a contract with plaintiff’s employer, Wood 

Mechanix, LLC (Wood Mechanix) to perform framing work 

on the project.1

 The contract contained numerous provisions 

that addressed the relationship between Wood Mechanix and 

Polygon. Under the heading of general terms and conditions, 

the contract provided that Wood Mechanix “has the status 

of an employer” for unemployment compensation and social 

security purposes. The contract required Wood Mechanix, 

at its own expense, to procure and maintain general liability insurance coverage and Oregon Worker’s Compensation 

insurance for accidental bodily injury on the worksite. The 

contract further required Wood Mechanix to name Polygon 

as an additional insured under its liability insurance policy 

and to procure liability insurance coverage that would provide that,

“[t]o the fullest extent permitted by law, the insurer shall 

defend and indemnify [Polygon] for all claims and suits arising out of, related to, or connected with [Wood Mechanix’s] 

performance of the work, regardless of whether said claim 

or suit alleges, or any other entity contends, that [Polygon] 

was independently or concurrently negligent. Said defense 

and indemnity obligations shall arise specifically but not 

exclusively, with respect to any claim or suit arising out 

of circumstances where any employee or agent of [Wood 

Mechanix] suffers personal injuries during the performance of the work by [Wood Mechanix] or [Polygon].”

The contract also contained specific provisions that 

addressed safety requirements for work on the project. In 

particular, the contract provided:

“4.3 Safety Requirements.

“[Polygon] is committed to maintaining a safe work place. 

[Wood Mechanix] agrees to take necessary safety and 

other precautions, at all times, to prepare for and perform 

the work in a safe manner and to protect persons from illness or injury and property from damage arising out of the 

performance of the work. [Wood Mechanix] agrees and is 

responsible to ensure that all sub-tier subcontractors and 

suppliers adhere to the requirements of this [provision].

1 The contract provided that the developer, Tanasbourne Place Townhomes, 

LLC, was the “Contractor,” but plaintiff asserts, and Polygon does not contest, 

that Polygon had the same rights under the contract as the developer.
174 Yeatts v. Polygon Northwest Co.

“[Wood Mechanix] shall 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]. [Wood Mechanix] shall, at all times, be responsible for providing a safe work site and be responsible 

for the safety of all personnel, equipment, and materials 

within [Wood Mechanix’s] care, custody or control. [Wood 

Mechanix] shall promptly provide [Polygon] with written 

notice of any safety hazard or violation found anywhere on 

or adjacent to the construction site.”

The contract further provided that, “[t]o the fullest extent permitted by law, [Wood Mechanix] agrees to 

defend, indemnify and hold [Polygon] harmless from all 

OSHA claims, demands, proceedings, violations, penalties, 

assessments, or fines that arise out of or relate to [Wood 

Mechanix’s] failure to comply with any safety related laws, 

ordinances, rules, regulations, orders, or its obligations 

hereunder.” In addition, the contract contained an exhibit 

that addressed specific scope of work requirements for the 

framing work that Wood Mechanix was to perform. The 

contract provided that “[Wood Mechanix] is required to 

promptly and diligently provide temporary railings, braces 

and fall protection as may be required by the ongoing framing of the buildings [p]er OSHA requirements.” The contract 

also required Wood Mechanix’s owner to attend a meeting 

with Polygon’s superintendent before beginning work on the 

project.

Also as a term of the contract, Wood Mechanix was 

required to develop a site-specific safety plan that identified the anticipated hazards of the framing work and the 

specific means that Wood Mechanix would use to address 

those hazards. Although the summary judgment record 

does not include the plan developed by Wood Mechanix, it 

does contain a checklist completed by Trytko, the owner of 

Wood Mechanix. On the checklist, Trytko confirmed that 

Wood Mechanix had provided its “Fall Protection Program” 

to Polygon and had “Fall Protection Work Plan” forms 
Cite as 360 Or 170 (2016) 175

available for each building on which it would work. Trytko 

confirmed that the plan:

“—Identif[ied] all fall hazards[.]

“—Describe[d] the method of fall arrest or fall restraint to 

be used for these hazards[.]

“—Describe[d] the correct procedures for assembly, maintenance, inspection and disassembly of the fall protection 

system[.]”

In his deposition testimony, Trytko stated that Wood 

Mechanix’s employees were trained and instructed in the fall 

protection plan and that Wood Mechanix had a “competent 

and qualified person” inspect the fall-protection equipment 

daily. He also testified that Wood Mechanix alone made the 

decision to use guardrails as the form of fall protection for 

framing work on the project.

While the contract between Polygon and Wood 

Mechanix explicitly called for Wood Mechanix to assemble, 

maintain, and inspect the fall protection system, Polygon 

also established its own site-specific Accident Prevention 

Plan. Among other provisions, Polygon’s plan provided that 

the fall protection restraint for second-floor and higher floors 

should be guardrails. That plan placed primary responsibility for assembly, maintenance and inspection of the fall 

protection system on its subcontractors, including Wood 

Mechanix. The plan stated:

“Procedures for Assembly

“The proper procedure for assembly of fall arrest/restraint 

equipment will be found in the related TANASBOURNE 

PLACE TOWNHOMES L.L.C Subcontractor’s Fall Protection Work Plan and according to manufacturer’s recommended procedures.”

In addition, the plan required that the Fall Protection Work 

Plans of Polygon’s subcontractors, including Wood Mechanix, 

must “[i]dentify all fall hazards,” “[d]escribe the method of 

fall arrest or fall restraint to be used for these hazards,” 

and “[d]escribe the correct procedures for assembly, maintenance, inspection and disassembly of the fall protection 

system.”
176 Yeatts v. Polygon Northwest Co.

Polygon’s plan also assigned responsibility for 

safety protection to its own construction superintendents. 

Specifically, the plan provided that “[a]ll superintendents 

will inspect their construction sites daily for safety hazards 

and issue ‘Safety Hazard Observed’ notices to any subcontractor in violation.” And the plan further provided that 

each “site Superintendent must advise each Subcontractor” 

of the requirements for the subcontractor’s fall protection 

work plan.

Although Polygon’s Accident Prevention Plan is 

included in the summary judgment record, the record also 

shows without dispute that it was disseminated only internally to Polygon employees and not to the subcontractors who 

worked on the project. Landshulz, Polygon’s Risk Manager, 

testified that Polygon did not provide its plan to subcontractors, and Trytko testified that he could not state that he had 

ever seen Polygon’s plan before this action was commenced.

The evidence also shows that Polygon relied on 

Wood Mechanix’s expertise with respect to fall protection 

for the framing work. Walther, who was Polygon’s first project manager, testified:

“Once again, it goes back to the—to the site contractor to—

to—for this case would be to install those railings. That’s 

why we hired them, to put them up—or that’s why we hire 

them, to frame the building. They’re taking their own 

safety program and critiquing it to the building or a project 

specific. And that’s why we hire them, for the experts.”

Marsh, another Polygon superintendent, also testified that 

Polygon relied on Wood Mechanix to properly design and 

construct the guardrails:

“Q. You have no idea how a guardrail should be built?

“A. It wasn’t my job to know. I was relying on the expertise of somebody who did know.”

As Marsh further explained, “[w]e were instructed that the 

framing subcontractor would put all the safety measures in 

place.”

The Court of Appeals accurately summarized 

Polygon’s role in the project—based on the summary judgment record—as follows:
Cite as 360 Or 170 (2016) 177

“Polygon’s role on the project was to manage the construction of the townhouses, which included managing 

the site, budget, schedule, and general safety of the project. Polygon’s employees were at the site every day, and its 

superintendents would perform daily site walks. If they saw 

a safety violation, such as a worker without a hard hat or a 

missing guardrail, Polygon’s superintendents would direct 

the person to stop the dangerous activity or tell the subcontractor to fix the problem. In addition, and pursuant to the 

contract, Polygon held weekly meetings with subcontractors on the project. * * * Taylor, one of Polygon’s superintendents, testified that the purpose of those weekly meetings 

was to ‘[g]o over a schedule, any issues amongst * ** the 

plans and * * * on different subcontractors. If somebody was 

caught without a hard hat, it would be brought up, “You 

must wear your hard hat, must”—but it was more—it was 

scheduling and day-to-day activities.’ Wood Mechanix held 

a separate safety meeting for its employees each week.”

Yeatts, 268 Or App at 260-61.

It was in that contractual and operational setting 

that plaintiff was injured while working for Wood Mechanix 

as a framer on the project, when he fell from the third floor of 

one of the townhomes. Earlier that day, a Polygon employee 

had told plaintiff to put his hard hat on and “go up there 

and finish something,” in reference to the building. Plaintiff 

went to the third floor and began framing an exterior wall. 

Plaintiff finished placing sheetrock on a section of the wall 

that was going to be raised and attached. He was kneeling 

down, facing a guardrail. In an effort to push himself up to 

a standing position, plaintiff leaned against the guardrail, 

and it gave way, causing him to fall 19 feet to the concrete 

surface below. When plaintiff fell, no Polygon employees 

were on the third floor of the townhome.

After his injury, plaintiff brought this action against 

Polygon, asserting in separate claims that Polygon was liable for plaintiff’s injuries under the ELL as plaintiff’s “indirect employer” and that Polygon also was liable based on 

common-law negligence. Plaintiff alleged in his ELL claim 

that Polygon was negligent:

“a. In failing to require and utilize a guardrail system 

that was effective in preventing falls;
178 Yeatts v. Polygon Northwest Co.

“b. In failing to have a guardrail system that was 

effectively anchored on both ends;

“c. In failing to have a guardrail system that could 

withstand 200 pounds of pressure;

“d. In failing to warn plaintiff that he was working in 

an area where the guardrail system was inadequate; and

“e. In failing to use every device, care and precaution 

that was practicable to use for the protection and safety of 

life and limb, in violation of Oregon’s Employer Liability 

Law pursuant to ORS 654.305.”

In his common-law negligence claim, plaintiff alleged that 

Polygon “was negligent in failing to adequately control and 

supervise the work” for the same reasons that he asserted 

in his ELL claim.

Polygon moved for summary judgment on both 

claims. Polygon argued that it was not subject to the ELL 

because it did not control the guardrails and that it was not 

liable in negligence because it did not occupy a legal relationship toward plaintiff under which it owed a duty to ensure his 

personal safety. In particular, Polygon argued that it owed 

no duty to plaintiff because any dangerous condition associated with the guardrails fell “within the special expertise or 

knowledge of” Wood Mechanix. Plaintiff submitted evidence 

of the terms of the contract between the parties, as well as 

how the parties operated, that, in his view, created material 

issues of fact with respect to whether the ELL applied to 

Polygon and whether Polygon owed a safety-related duty to 

plaintiff as alleged in his common-law negligence claim. The 

trial court granted Polygon’s summary judgment motion on 

both claims.

Plaintiff appealed the ensuing general judgment in 

favor of Polygon. The Court of Appeals concluded that plaintiff failed to present evidence from which a jury could find 

that Polygon was liable under the ELL or that Polygon was 

negligent. With respect to the negligence claim, the Court of 

Appeals relied on this court’s decision in Yowell v. General 

Tire & Rubber, 260 Or 319, 490 P2d 145 (1971), in concluding, based on the summary judgment record, that Polygon 

was entitled to rely on Wood Mechanix’s expertise in performing framing work at heights and did not owe plaintiff a 
Cite as 360 Or 170 (2016) 179

duty. Yeatts, 268 Or App at 283. The Court of Appeals therefore affirmed the general judgment in favor of Polygon.

III. ANALYSIS

A. Claims under the ELL

Oregon’s ELL imposes liability on “all owners, contractors or subcontractors and other persons having charge 

of, or responsibility for” work involving a risk or danger. ORS 

654.305. This court has held that, in addition to a worker’s 

direct employer, liability under the ELL can be imposed on 

an indirect employer

“who (1) is engaged with the plaintiff’s direct employer in 

a ‘common enterprise’; (2) retains the right to control the 

manner or method in which the risk-producing activity was 

performed; or (3) actually controls the manner or method in 

which the risk[-]producing activity is performed.”

Woodbury v. CH2M Hill, Inc., 335 Or 154, 160, 61 P3d 918 

(2003) (summarizing Wilson v. P.G.E. Company, 252 Or 385, 

391-92, 448 P2d 562 (1968)) (footnote omitted).2

At the outset, we note that the parties agree that 

the Court of Appeals correctly identified the risk-producing 

activity as “plaintiff’s framing work at a dangerous height 

above a concrete surface.” Based on our review of the record, 

we agree with that characterization. Cf. Woodbury, 335 Or at 

162 (describing risk-producing activity in that case as “work 

at height”). With that understanding in mind, we consider 

whether plaintiff presented sufficient evidence to create a 

triable issue of fact as to whether Polygon could be found 

liable under one or more of the categories under the ELL.

1. “Common enterprise”

In Wilson, this court stated that an indirect 

employer may be held liable under the common enterprise 

category

2 In Camenzind v. Freeland Furniture Co., 89 Or 158, 180, 174 P 139 (1918), 

this court stated that “[t]he duty imposed upon the master by the [ELL] is a 

nondelegable duty.” However, the nondelegable nature of a duty imposed by the 

ELL does not affect the determination of whether such a duty exists in the first 

instance. See Boothby v. D.R. Johnson Lumber Co., 341 Or 35, 45, 137 P3d 699 

(2006) (“If, as we hold, [the defendant] did not fall into any of those categories, 

then the ELL imposed no duty on it, nondelegable or otherwise[.]”).
180 Yeatts v. Polygon Northwest Co.

“where [the] defendant and [the] plaintiff’s employers are 

simultaneously engaged in carrying out work on a common 

enterprise. When, as the result of the activities of [the] 

defendant’s employees or use of his equipment, a risk of 

danger is created which contributes to an injury to [the] 

plaintiff who is the employee of another engaged in work 

on the same project, [the] defendant has been considered 

to have sufficient control over the work to be subject to the 

duties imposed by the [ELL]. This is so even though he 

might not have had actual control over the specific activity in which [the] plaintiff was engaged at the time of his 

injury.”

Wilson, 252 Or at 391 (citing Thomas v. Foglio, 225 Or 540, 

549, 385 P2d 1066 (1961)).

In Sacher v. Bohemia, Inc., 302 Or 477, 485-86, 731 

P2d 434 (1987), this court noted that “[t]he ‘common enterprise’ [category] was drawn from Thomas, where this court 

held that the [ELL] could be invoked against a third-party 

employer [defendant] when the third-party employer defendant and the plaintiff’s employer participated in a common 

enterprise involving an ‘intermingling of duties and responsibility’ of the employees of both employers.” The court stated 

that the participation must consist of more than a common 

interest in the economic benefit from the enterprise; rather,

“an employer can be regarded as ‘having charge of’ work 

where the component part of the general undertaking for 

which he is responsible involves any risk-creating activity 

on the part of his employees or calls 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 486 (emphasis added). In short, the common enterprise category applies in circumstances where both employees of the defendant and employees of the direct employer 

of the plaintiff have intermingled duties and responsibilities in performing the risk-creating activity or where equipment that the defendant controls is used in performing that 

activity.

In Sacher, the plaintiff was a direct employee 

of Cascade, a manufacturer of broom handles. Id. at 479. 
Cite as 360 Or 170 (2016) 181

Cascade contracted with the defendant, Bohemia, Inc., a 

lumber producer, to install and operate a broom handle production line at one of Bohemia’s mills. Id. at 480. The plaintiff was injured when he tried to remove a piece of wood 

that had lodged in the saw blades of Cascade’s production 

line. Id. at 481. Bohemia’s employees assisted in the operation by producing the scrap wood that Cascade used for 

making the broom handles, supplying the conveyors used 

to bring the waste wood to the Cascade operation, forklifting completed bins of broom handles to the yard for loading, 

occasionally sharpening Cascade’s saws, and having the 

contractual right to approve all hiring of employees to work 

in Cascade’s broom handle operation. Id. at 487. Despite 

those connections, though, this court concluded that there 

was no evidence that Bohemia was engaged in a common 

enterprise with Cascade with respect to the broom handle 

production unit that caused plaintiff’s injury. Id. The court 

noted that “Cascade alone designed, built, installed and 

operated the saw unit” and the “[p]laintiff was not injured 

because of a failure on Bohemia’s part to take proper precautions regarding its own equipment * * * or employees.” Id.

(footnote omitted).

In this case, there was even less intermingling of 

work activity between the employees of Polygon and Wood 

Mechanix than was the case in Sacher. Although Polygon’s 

employees engaged in general oversight of the construction 

project, employees of Wood Mechanix performed the framing work for the project on their own. The undisputed evidence shows that Wood Mechanix made its own determination to use guardrails as the form of fall protection for 

framing work on the upper levels of the building and that 

Wood Mechanix designed, assembled, and maintained the 

guardrail system. In addition, there is no evidence in the 

record that Polygon’s employees were regularly present on 

the third floor of the building, nor were any Polygon employees or equipment present on that floor when plaintiff’s injury 

occurred.

In short, there is no evidence that Polygon’s employees or equipment were engaged or used in framing work on 

the project or in the design, assembly, or maintenance of 

the guardrail that failed. It follows that the evidence does 
182 Yeatts v. Polygon Northwest Co.

not give rise to a reasonable inference that Polygon and 

Wood Mechanix were engaged in a common enterprise with 

regard to the risk-producing activity that led to plaintiff’s 

injury. We therefore affirm the decisions of the trial court 

and the Court of Appeals on that issue.

2. Actual control

In Woodbury, this court held, in the context of a 

summary judgment ruling, that there was sufficient evidence to create a triable issue of fact as to whether the defendant was liable under the ELL because it actually controlled 

the manner or method in which the risk-producing activity 

was performed. In that case, the plaintiff sought recovery 

for personal injuries suffered in a fall from a construction 

platform. Although the plaintiff worked for a subcontractor, 

he filed the action against the general contractor, alleging 

liability under the ELL and common-law negligence. The 

defendant’s representative provided detailed on-site instructions as to how a pipeline should be constructed, and that 

representative addressed jointly with the plaintiff’s direct 

employer what was required to facilitate work on the part 

of the pipeline that spanned an underground concrete corridor. In particular, the defendant and the plaintiff’s direct 

employer “jointly decided to use a fixed wooden platform 

consisting of boards and plywood sheets.” Woodbury, 335 Or

at 162.

Based upon that active, on-site participation by the 

defendant’s representative, this court determined that

“there was evidence from which the jury reasonably could 

conclude that [the] defendant exercised actual control both 

over the decision to use a wooden platform and over the 

choice of how that platform was constructed. In particular, 

the jury could have concluded that the platform was constructed without fall protection that might have protected 

[the] plaintiff from injury.”

Id. at 162-63. The court concluded that that evidence was 

sufficient to support a jury determination that the defendant “exercised actual control over the manner or method 

in which the risk-producing activity (working at height) was 

performed.” Id. at 163.
Cite as 360 Or 170 (2016) 183

Although plaintiff contends otherwise, the record in 

this case does not disclose the kind of active, on-site participation by Polygon that created a jury issue in Woodbury

as to whether the defendant there actually controlled the 

risk-producing activity.3

 The contract between Polygon and 

Wood Mechanix assigned responsibility for assembling and 

maintaining the fall protection system to Wood Mechanix, 

whose employees did in fact assemble and maintain the 

guardrail that failed. Although Polygon’s accident prevention plan called for guardrails to be used for fall protection, 

Trytko’s undisputed testimony indicated that the decision 

to use guardrails for fall protection was made by Wood 

Mechanix itself and not mandated by Polygon. In addition, 

the record shows that Polygon’s site superintendents only 

inspected for obvious safety violations—such as failures of 

workers to wear hard hats or missing guardrails—on their 

daily site rounds; they did not actually physically inspect 

the guardrails to determine whether they were properly 

assembled and maintained, nor is there any evidence that 

Polygon otherwise actually controlled the method or manner 

of Wood Mechanix’s framing work.4

Accordingly, we conclude that plaintiff did not present sufficient evidence that Polygon actually controlled the 

framing work at a dangerous height above the concrete 

surface to withstand defendant’s motion for summary judgment. We therefore affirm the decisions of the trial court 

3 We agree with the Court of Appeals that the fact that a Polygon employee 

directed plaintiff on the day of his injury to work on one of the buildings is 

insufficient to establish actual control. Yeatts, 268 Or App at 278. Liability 

under the actual control test is only triggered if the defendant actually controls 

the manner or method—that is, how—the plaintiff or the plaintiff’s employer 

performs the risk-producing activity. See Wilson, 252 Or at 398 (concluding 

that defendant had not exercised actual control over work involving risk or 

danger because defendant’s “only exercise of control was for the purpose of 

securing the ultimate result for which defendant had contracted,” and there 

was “no evidence of an attempt by defendant to control the method and manner 

of the work”).

4 The fact that Polygon contractually required Wood Mechanix to comply 

with OSHA fall protection requirements does not amount to the sort of active, 

on-site activity that would support a determination that Polygon actually controlled the risk-producing activity at issue. See Boothby, 341 Or at 43-44 (contractual provision requiring subcontractor to comply with all applicable statutes, 

regulations, and laws not sufficient to establish actual control or retained right of 

control for purposes of ELL).
184 Yeatts v. Polygon Northwest Co.

and the Court of Appeals based on the actual control specification of plaintiff’s ELL claim.

3. Retained right to control

To establish that Polygon “retained the right to control” the pertinent risk-producing activity, plaintiff must 

“identify some source of legal authority for that perceived 

right” or present evidence from which a retained right of 

control can be inferred. Boothby v. D.R. Johnson Lumber 

Co., 341 Or 35, 41, 137 P3d 699 (2006). In Boothby, this 

court focused its analysis of that issue on the terms of the 

contract between the defendant and its independent contractor, who was the direct employer of the plaintiff. Id. We also 

do so here, as well as considering evidence about the manner 

in which the contract was performed.

As discussed, several provisions of the contract 

between Polygon and Wood Mechanix assigned primary 

responsibility to Wood Mechanix for the framing work—

including related fall protection—on the project. In particular, the contract required Wood Mechanix to provide 

railings, braces, and fall protection for the framing work 

in accordance with OSHA requirements. The contract 

also required Wood Mechanix to develop and implement a 

site-specific safety plan that identified and anticipated hazards and provided specific means to address those hazards, 

including fall protection. Also as discussed, Wood Mechanix 

made its own decision to use guardrails as the form of fall 

protection on the upper floors of the buildings, and Wood 

Mechanix was responsible for assembling and maintaining the guardrails. In addition, the contract required Wood 

Mechanix to defend, indemnify, and provide liability insurance coverage to protect Polygon from liability for injuries to 

Wood Mechanix employees working on the project. In short, 

the contract made Wood Mechanix primarily responsible 

for safety measures for the framing work and required it to 

protect Polygon from liability for injuries that might befall 

Wood Mechanix employees doing that work.

However, the contract also included provisions 

under which Polygon retained some right to control the 

framing work, including related safety matters. In particular, the contract provided that:
Cite as 360 Or 170 (2016) 185

“[Wood Mechanix] shall 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].”

(Emphasis added.) That provision permitted Polygon to 

require safety measures that it deemed appropriate beyond 

those necessary to comply with applicable state and federal 

laws; it correspondingly conferred discretion on Polygon to 

determine for itself whether any additional safety measures 

should be taken.

In addition, Polygon’s Accident Prevention Plan provided that Polygon’s superintendents would inspect the construction site daily for safety hazards and issue safety hazard notices to any subcontractor in violation. Although that 

plan was not disseminated to Wood Mechanix, consistently 

with the contract itself, it reinforces the point that Polygon 

retained the right to inspect and ensure the integrity of the 

guardrails as adequate fall protection measures, if it chose 

to do so.

Against that evidentiary backdrop, we return to 

the governing legal principles. In Wilson, a property owner 

hired a general contractor to build an electric transmission 

line; the general contractor, in turn, hired an independent 

contractor to construct the towers supporting the line. 252 

Or at 389. Under the subcontract, the independent contractor was responsible for the method and manner in which the 

risk-producing activity was performed. Id. at 392-94. The 

owner, however, retained the contractual right to “increase 

th[e] safety, efficiency, and adequacy” of the independent 

contractor’s methods “[i]f at any time the Contractor’s methods * ** appear to the [owner] to be unsafe.” Id. at 394 (quoting the contract) (emphasis omitted).

As this court explained in Cortez v. Nacco Materials 

Handling Group, 356 Or 254, 337 P3d 111 (2014):

“The contractual right that the owner retained in 

Wilson, as the court characterized it, was limited to 
186 Yeatts v. Polygon Northwest Co.

requiring greater safety procedures than those that the 

contractor had put in place, and the question in Wilson

was whether the owner’s retention of that right was sufficient to make it liable under the ELL. The court held 

that it was not, for three related reasons. First, the court 

explained that, in order for an owner’s retained right to 

give rise to liability under the ELL, the right had to ‘bear 

some relation to the creation of a risk of danger to work[ers] 

resulting from dangerous working conditions.’ Under the 

terms of the parties’ contract, however, the independent 

contractor was responsible for the manner or methods in 

which the risk-producing activity was performed. Second, 

although the owner retained the right to require greater 

safety procedures, the court explained that the retention 

of that right ‘created no risk of danger to [the] plaintiff.’ 

The court reasoned that the retention of that right would 

create a risk of danger to the plaintiff only if it caused the 

independent contractor to be less diligent regarding safety, 

a possibility that the court discounted because ‘the duty to 

maintain safety remained the primary duty of the contractor.’ Finally, the court reasoned that imposing liability on 

owners for retaining a contractual right to require greater 

safety measures would serve as a disincentive to including 

such clauses in future contracts and thus would be contrary 

to the purposes underlying the ELL.”

Cortez, 356 Or at 275-76 (emphasis in original; citations 

omitted).

In Cortez, an injured worker brought negligence 

and ELL claims against the sole member of a limited liability company (LLC). In that case—also decided on summary 

judgment—the LLC was the plaintiff’s direct employer. Id.

at 256 An officer of the sole member of the LLC acknowledged that the member “could have made all of th[e safety] 

changes” that it later made after the plaintiff’s accident at 

the point at which it had first acquired the LLC. Id. at 274. 

Similarly, the officer agreed “that[,] if the [member] wanted 

to change either the design or the equipment used in the 

yard at [the LLC operation], they could do that.” Id. at 275. 

This court concluded that

“[a] reasonable juror could infer from that evidence that, as 

the LLC statutes state, [the member] retained the right to 

manage the day-to-day operations of [the LLC], including 
Cite as 360 Or 170 (2016) 187

the operation of the forklifts and attendant safety procedures. Put differently, a reasonable juror could infer that 

[the member] retain[ed] the right to control the manner or method in which the risk-producing activity was 

performed.”

Id. at 275 (internal quotation marks omitted; citation omitted). The defendant in Cortez remonstrated that Wilson

was controlling and required a contrary conclusion. Id.

The court disagreed; the court distinguished the circumstances involved, because Wilson arose in the context of an 

owner/independent contractor relationship, whereas Cortez

involved a sole member-manager of an LLC that delegated 

day-to-day decisions to a mill manager and human resources 

director. Id. at 276.5

Here, Wilson also is distinguishable in part. 

Although this case, like Wilson, involves an independent contractor relationship, the contractual relationship and terms 

here differ from those in Wilson. First, Wilson involved an 

owner/independent contractor relationship in which the 

parties’ expectations and roles differ from those ordinarily 

at play in a general/subcontractor relationship. In Wilson,

the court stated:

“An owner who reserves the right to impose or require 

safety precautions for the benefit of his contractor’s workmen derives no possible pecuniary benefit from the reservation because he has contracted for a finished product.”

252 Or at 396. Presumably reasoning from that premise, 

the court also said: “[B]efore the retained right of control 

by an owner should give rise to liability, that retained right 

of control should bear some relation to the creation of a risk 

of danger to workmen resulting from dangerous working 

conditions.” Id. at 395-95. The circumstances arguably are 

somewhat different where a general contractor is responsible to the owner for the performance of its own contractual 

obligations, which includes the work performed by the subcontractor. In that situation, it is still the owner who has 

“contracted for a finished product.” The general contractor 

5 This court noted in Cortez that the plaintiff had not “argue[d] that Wilson

was wrongly decided, and we assume[d] that the court’s decision was correct in 

light of the particular contractual relationship in that case.” Id. at 276 n 23.
188 Yeatts v. Polygon Northwest Co.

remains bound to perform the work and therefore has an 

ongoing pecuniary incentive to avoid a risk of injury to 

workers on the jobsite.

Second, although the owner in Wilson could request 

greater safety measures than the contract expressly imposed 

on the independent contractor, the contract in that case further provided that

“[t]he failure of the [owner] to make such demands shall 

not relieve the Contractor of his obligation to secure the 

quality, the safe conducting of the work, and the rate of 

progress required by the Contract; and the Contractor 

alone shall be and remain liable and responsible for the 

safety, efficiency, and adequacy of his methods, materials, 

working force, and equipment, irrespective of whether or 

not he makes any change as a result of any order or orders 

received from the [owner].”

Wilson, 252 Or at 394 (quoting the contract) (emphasis omitted). Thus, the parties expressly left ultimate responsibility 

for safety measures in the hands of the independent contractor. Although the owner could ask for additional safety 

measures, the contract provided that the independent contractor “alone” was responsible for the safety of its employees and the adequacy of its methods of work. Here, in contrast, Polygon was in overall charge of the construction 

project. Unlike the owner in Wilson, Polygon retained the 

right for its own construction superintendents to inspect the 

work site in its entirety. It also had the contractual right 

to impose additional safety measures, and, although the 

safety of its own work force was primarily the responsibility 

of Wood Mechanix in this case, unlike in Wilson, there was 

no express provision in the contract that purported to make 

Wood Mechanix alone responsible for the safety of its direct 

employees. Thus, unlike in Wilson, contractual responsibility for the safety of the subcontractor’s employees was not 

fully shifted from the general contractor to the subcontractor in this case.

Those distinctions notwithstanding, plaintiff correctly notes that the “risk-creation” concept that this court 

applied in Wilson was not derived from a statutory construction analysis of ORS 654.305 that accords with our accepted 
Cite as 360 Or 170 (2016) 189

methodology, under which we interpret the statutory text in 

context, PGE v. Bureau of Labor and Industries, 317 Or 606, 

610-11, 859 P2d 1143 (1993), and then, to the extent we find 

it helpful, we consider the legislative history proffered by 

the parties, ORS 174.020(3). See also State v. Gaines, 346 Or 

160, 171-72, 206 P3d 1042 (2009) (after considering text and 

context, court considers any pertinent legislative history, 

giving it appropriate weight).

In particular, one aspect of the analysis in Wilson

is sufficiently problematic to require correction. As noted, 

this court in Wilson stated that, before the retention of a 

right of control would give rise to liability, that retained 

right must bear some relation to the creation of a risk of 

danger to workers. 252 Or at 395-96. The court then determined that the owner’s retained right to require greater 

safety measures than those provided by the plaintiff’s direct 

employer would not create a risk of danger to the plaintiff. 

Id. at 396. The court further stated that such a retained 

right would create a risk of danger to the plaintiff only if 

it caused the plaintiff’s direct employer to be less diligent 

regarding safety, a possibility that the court discounted in 

that case because “the duty to maintain safety remained the 

primary duty of the contractor.” Id. That “risk-creation” concept arose from the court’s concern that imposing liability 

under the ELL in that situation would lead to less workplace safety by inducing complacency, which would be in 

direct opposition to the purpose of the ELL—the protection 

of workers. Id. (“[I]f duties not otherwise required of owners 

are imposed because of the reservation of a right to require 

safety precautions, it is obvious that owners will not actively 

concern themselves with the workmen’s safety. As a result, 

the imposition of liability *** would defeat the very purpose 

the [ELL] was designed to accomplish.”).

On further reflection, we conclude that there simply 

is no support in the text, context, or legislative history of the 

ELL for the proposition that the retained right to inspect 

work and require greater safety measures would only give 

rise to liability under the ELL if such retention created a 

risk of danger to the plaintiff by causing the plaintiff’s direct 

employer to be less diligent. There is no reason to conclude 
190 Yeatts v. Polygon Northwest Co.

that a general contractor’s right to inspect work for safety 

hazards is insufficient to amount to a retained right of control even where the reservation of that right does not cause 

the subcontractor who is primarily responsible for the work 

to be less diligent. To the contrary, such an inspection right 

creates an additional opportunity to avoid jobsite injury, 

even if the subcontractor has an undiminished incentive to 

diligently inspect its own work.

Under the principle of stare decisis, we assume that 

all fully considered decisions of this court were correctly 

decided. Farmers Ins. Co. v. Mowry, 350 Or 686, 692, 261 P3d 

1 (2011). It is incumbent upon the party wishing to change 

a precedent to affirmatively persuade this court to abandon 

that precedent. Id. Various considerations may be weighed 

in deciding to depart from precedent, including a need to 

correct a past error, particularly where “an earlier case was 

inadequately considered or wrong when it was decided.” Id.

at 692-93 (quoting G.L. v. Kaiser Foundation Hospitals, Inc., 

306 Or 54, 59, 757 P2d 1347 (1988)).

In this case, we are persuaded that the above-discussed aspect of the holding in Wilson was incorrect when 

it was decided. As noted, the court in Wilson derived the 

risk-creation requirement from its concern with upholding 

the purpose of the ELL, but proper consideration was not 

given to the text, context, and history of the ELL in creating 

that requirement. See Gaines, 346 Or at 171-72. First, considering the text of the ELL, it applies to “persons having 

charge of, or responsibility for, any work involving a risk or 

danger to the employees,” and it requires such persons to 

“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 

appliance and devices.” ORS 654.305. That statute does not 

require that the act of having charge of or responsibility for 

that work create, by itself, an additional risk of danger to 

workers by causing their direct employers to be less diligent. 

Nor does anything in the context of ORS 654.305 or any 

other provision of the ELL support the existence of such a 

requirement.
Cite as 360 Or 170 (2016) 191

Finally, that requirement does not comport with 

the enactment history of the ELL. In Saylor v. Enterprise 

Electric Co., 106 Or 421, 212 P 477 (1923), this court considered that enactment history and the purpose of the ELL, 

which originally was proposed by initiative and enacted by 

a vote of the people in 1910.6

 106 Or at 425. See also Or 

Laws 1911, ch 3. The original ballot title described “A bill for 

a law requiring protection for persons engaged in hazardous employments ***.” Official Voters’ Pamphlet, General 

Election, Nov 8, 1910, 81. The argument in favor of the measure set out in the voter’s pamphlet described the lack of 

protections for the safety and lives of workers under the 

common law and asked voters to pass the ELL so that “the 

employer [would] be compelled to use diligence in protecting 

the laborer as to his life and limb.” Id. at 85. The purpose 

of the ELL, therefore, was to protect employees engaged in 

lines of work “involving risk or danger” by imposing higher 

standards of care upon employers than did the common law. 

See Saylor, 106 Or at 427-28; Or Laws 1911, ch 3, § 1.

This court in Wilson correctly recognized that 

broad purpose; however, nothing in the history of the ELL—

either in its enactment or in this court’s decisions preceding 

Wilson—indicates that, in the case of the retained right to 

control workplace safety, liability will arise under the ELL 

only where the retained right creates an additional risk of 

danger to workers by causing their direct employers to be 

less diligent. Wilson incorrectly imposed that requirement, 

which is not grounded in the text, context, or history of the 

ELL. See ORS 174.010 (courts not to insert “what has been 

omitted”).

This court has not often relied on that aspect of 

Wilson;

7

 most recently, in Cortez, the court expressly dis6 Part of section 1 of the enacted law became ORS 654.305, and the current 

text has not changed substantively from the original. See Or Laws 1911, ch 3, § 1.

7 Only one other case relied upon the reasoning in Wilson. In Wienke v. 

Ochoco Lumber Co., 276 Or 1159, 588 P2d 319 (1976), after determining that 

liability did not arise under the ELL because the defendant lumber company did 

not have the right to directly control the injury-creating activity, this court stated 

“another reason for holding that the [ELL] should not apply.” 276 Or at 1167. 

Relying on the reasoning in Wilson, the court stated: “In addition, by no stretch 

of the imagination can it be argued that any risk was created that the contractor would fail in his duties of safety to his employees upon the expectation that 
192 Yeatts v. Polygon Northwest Co.

tinguished it, noting that the parties had not asked us to 

revisit the holding in that case. Rather than continue to 

limit the holding in Wilson to the facts of that case, for the 

foregoing reasons, we disavow that holding to the extent 

that it requires a plaintiff to show that a defendant’s right to 

control a risk-producing activity created an additional risk 

of danger to the plaintiff by causing the plaintiff’s direct 

employer to be less diligent.

We conclude that Polygon’s retention of the rights 

to require additional safety measures, and to inspect the 

work site in its entirety, particularly in the absence of a contractual provision that placed sole responsibility for safety 

measures on Wood Mechanix, constituted sufficient evidence that Polygon retained the right to control the riskproducing activity so as to preclude summary judgment in 

favor of Polygon with respect to that specification of plaintiff’s ELL claim. Accordingly, we reverse the decisions of the 

trial court and the Court of Appeals on the retained right of 

control specification of plaintiff’s ELL claim and remand to 

the trial court for further proceedings on that specification.

B. Common-Law Negligence Claim

Plaintiff also asserts that the trial court and the 

Court of Appeals erred in concluding that plaintiff failed to 

adduce evidence sufficient to create a triable issue of fact 

with respect to his common-law negligence claim. As noted, 

plaintiff relies on essentially the same factual circumstances 

to support his negligence claim as he does for his claim 

under the ELL. Polygon contends that plaintiff’s negligence 

claim fails because, under common-law principles, a general 

contractor does not owe a duty of care to the employees of a 

[the] defendant would take care of such duties, because [the] defendant itself had 

no right to supervise the employees of the contractor.” Id. at 1167-68. However, 

as the dissent in that case noted, the reliance on Wilson was dictum and not 

necessary to support the court’s decision that the ELL did not apply. Id. at 1175 

(Tongue, J., dissenting). Justice Tongue further accurately observed:

“It is of interest that this proposition, as set forth in Wilson by the writer 

of this majority opinion, not only interjected a completely new theory of ‘nonliability’ under the [ELL], but one not supported by the citation of any decisions by this or any other court and one which was completely different from 

the reasons urged by the defendant upon the appeal of that case.”

Id.
Cite as 360 Or 170 (2016) 193

subcontractor when the subcontractor is hired for its expertise in performing work in a dangerous field.

In Fazzolari v. Portland School Dist. No. 1J, 303 Or 

1, 734 P2d 1326 (1987), this court explained that,

“unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits 

the defendant’s duty, the issue of liability for harm actually 

resulting from [a] defendant’s conduct properly depends on 

whether that conduct unreasonably created a foreseeable 

risk to a protected interest of the kind of harm that befell 

the plaintiff.”

Id. at 17. This court in Fazzolari observed that liability in 

negligence does not extend to every failure to prevent a 

foreseeable injury, noting that “a status, a relationship, or 

a particular standard of conduct” may impose “limits” on a 

defendant’s duty to act. Id.

In Yowell, this court set out what has been described 

as the “special expertise or knowledge” principle, which 

limits the duty of care that otherwise might be owed by an 

owner or general contractor where a subcontractor is hired to 

perform work. 260 Or at 325. In Yowell, the defendant owned 

a tire business and hired the plaintiff’s employer to repair a 

sign located on its property. The court stated that the following principle governed the circumstances of that case:

“A person who orders repairs or work to be done by a third 

party owes no duty to such third party or his workman to 

discover and warn of any unknown dangerous conditions 

surrounding the work which fall within a special expertise 

or knowledge, not shown to have been had by the person 

ordering the work, and which the third party impliedly represents to the public that he possesses.”

Id. As that principle applied in Yowell, the court held:

“Plaintiff’s employer, the independent contractor, held 

itself out to the public as being engaged in the business of 

manufacturing, installing and repairing all kinds of signs. 

Defendant was therefore entitled to assume, until notice 

to the contrary, that plaintiff’s employer and its employees 

who were sent to work on defendant’s signs were proficient 

and expert in detecting any defects in signs which formed a 

danger to those working in or around them. Defendant was 
194 Yeatts v. Polygon Northwest Co.

not shown to have known of the defect in the sign. Nor was 

it shown to have had any expertise concerning signs.”

Id. at 324-25 (footnote omitted).

Unlike in this case, the defendant hirer in Yowell

owned the premises on which the plaintiff was injured. Id.

at 320. In reaching its conclusion, the court in Yowell relied 

on principles involving the duty that a possessor of land 

owes to the employees of independent contractors hired to 

perform work on the premises. Id. at 323-24. However, the 

court did not rest its holding on that ground alone. Instead, 

the court stated:

“Regardless of whether defendant is to be viewed in its 

relation to plaintiff primarily as a possessor of land or as 

one who contracts for services, we believe the result in this 

case should be the same.”

Id. at 324.8

In this case, plaintiff did not assert in the trial 

court or the Court of Appeals, nor has he asserted before 

this court, that the “special expertise or knowledge” principle does not apply in the context of general contractorsubcontractor relationships. Instead, plaintiff has challenged the Court of Appeals’ determination, based on the 

summary judgment record, that Polygon relied on the expertise of Wood Mechanix. We determine whether there is sufficient evidence that Polygon owed and breached a duty of 

care to plaintiff to create a triable issue of fact in accordance 

with the parties’ framing of that issue on review.9

 We conclude that the evidence is insufficient in that regard.

8 The court further stated:

“We prefer to hold that the property owner or the contractee (as the case may 

be) owes no duty, rather than to hold that the independent contractor or his 

employees assume the risk. We also believe that the rule should be stated 

more broadly so that it covers not only the dangers of which the independent 

contractor and his employees knew but also those dangers of which they, in 

the exercise of their expertise, should have known.”

Id. at 325-26 (emphasis added).

9 The concurring opinion asserts that the “special expertise or knowledge” 

principle should not apply in this case because of differences that she perceives 

between the liability of possessors of land and general contractors for injuries 

suffered by an employee of an independent contractor while performing contracted work. 360 Or at 198-200 (Walters, J., concurring). Because plaintiff does 

not make that argument, we do not address its merits.
Cite as 360 Or 170 (2016) 195

Here, Polygon hired plaintiff’s employer as an independent subcontractor to undertake framing work, including fall protection for that work, because of its expertise in 

framing buildings. There is no evidence in the summary 

judgment record that Polygon knew or had reason to know 

of any defect in the design, installation, or maintenance of 

the guardrail that failed or that it had special expertise in 

fall protection for framing work done at dangerous heights.10

Plaintiff remonstrates that Polygon provided safety 

oversight over the entire construction site on a daily basis, 

that the contract between Polygon and Wood Mechanix contained specific framing requirements, that Polygon had the 

right to approve Wood Mechanix’s fall protection plan, and 

that Polygon required Wood Mechanix’s employees to attend 

weekly safety meetings.

That evidence notwithstanding, there is no evidence from which a jury could find that Polygon required 

Wood Mechanix to use guardrails as opposed to any other 

method of fall protection, or that the Polygon plan was produced independently of Wood Mechanix’s decision to use 

guardrails. To the contrary, there is uncontroverted evidence that Polygon bargained for and relied on the expertise of Wood Mechanix in providing safety measures for the 

framing work and that Wood Mechanix alone decided to 

use guardrails as its form of fall protection on the project. 

The subcontract expressly required Wood Mechanix to prepare a safety plan for its work, which specifically included 

a fall protection plan for Wood Mechanix workers. In addition, the “Subcontractor Precon Safety Orientation” checklist required Wood Mechanix (not Polygon) to “[i]dentify all 

fall hazards” and “[d]escribe the method of fall arrest or fall 

restraint to be used for these hazards.” Moreover, Trytko 

verified that Wood Mechanix’s employees were trained 

and instructed in fall protection protocols and that Wood 

Mechanix would have a “competent and qualified person” 

inspect the fall-protection equipment daily.

10 As noted, Polygon’s managers testified that (1) Wood Mechanix was “taking their own safety program and critiquing it to the building or a project specific. 

And that’s why we hire them, for the experts”; and (2) with respect to how a 

guardrail should be built: “It wasn’t my job to know. I was relying on the expertise of somebody who did know.”
196 Yeatts v. Polygon Northwest Co.

Consistently with that allocation of responsibility 

and expertise, the uncontroverted evidence also showed 

that Polygon employees did not go into the Wood Mechanix 

work space generally and did not go onto the upper floors 

of any building being framed by Wood Mechanix until the 

floor was complete. In sum, although the evidence supports 

an inference that Polygon had a general understanding that 

fall protection should be in place while framing work is 

performed at heights, it does not support an inference that 

Polygon had special expertise or knowledge regarding how 

to design, construct, and maintain guardrails for that purpose. Instead, both contractually and operationally, Polygon 

relied on the expertise and knowledge of Wood Mechanix 

and its employees for the performance of those responsibilities. Under those circumstances, Polygon did not have a 

common-law duty to Wood Mechanix’s employees, including 

plaintiff, to discover, warn against, or avoid unknown dangerous conditions relating to fall protection for the framing 

work.11

We recognize that, unlike in Boothby, we have concluded in this case that plaintiff’s evidence was sufficient 

to survive summary judgment with respect to the right of 

control specification of his ELL claim. In Boothby, this court 

concluded that the defendant’s lack of control over its independent contractor negated any duty under the ELL and 

also precluded the plaintiff from holding the defendant liable for the contractor’s negligence. 341 Or at 46. That does 

not, however, alter our conclusion with respect to plaintiff’s 

negligence claim in this case. Because the ELL was intended 

11 The decisions that the concurrence cites emphasize the significance of the 

hirers’ control over the operative detail of the work in those cases. Cf. Woodbury, 

335 Or at 163 (evidence permitted jury to find that defendant exercised actual 

control over safety aspects of project and, in particular, exercised actual control 

over that part of project that required plaintiff to work at dangerous height); 

Kuhns v. Standard Oil Co., 257 Or 482, 488, 493, 478 P2d 396 (1970) (evidence 

showed that general contractor was obligated to “see that the job was done 

according to the plans and specifications,” ensure that “job was done right,” and 

“check[] after the equipment [was] installed to see that there [were] no leaks and 

that the equipment [was] operating properly,” such that jury could find it liable 

for injuries resulting from oil leak “based on its own independent negligence in 

failing to test or inspect the oiling equipment to determine if it was functioning 

properly after the subcontractors had completed their work and the equipment 

was operational”).
Cite as 360 Or 170 (2016) 197

to impose higher standards of care upon employers than did 

the common law, circumstances giving rise to ELL liability 

may exist without liability in negligence also arising. See 

Saylor, 106 Or at 426-28; Or Laws 1911, ch 3, § 1.

This court addressed a similar issue in Cortez, 

where the court concluded that the defendant retained a 

sufficient right to control the manner or method of the riskproducing activity to create a triable issue with respect to 

the plaintiff’s ELL claim, but nevertheless determined that 

the trial court properly had granted summary judgment to 

the defendant on a companion negligence claim. 356 Or at 

277. In so concluding, the court recognized that

“some tension may exist between our resolution of plaintiff’s negligence and ELL claims. Any tension results, however, from the differences between the common-law tort 

standards ** * and the broader statutory standards that 

the legislature adopted in the ELL.”

Id. See also Howard v. Foster & Kleiser Co., 217 Or 516, 

533, 332 P2d 621 (1958), reh’g den, 217 Or 516, 342 P2d 780 

(1959) (“The [ELL] exacts of employers measures for the 

safety of employees which are more stringent than those of 

the common-law rule of due care.”) (citations omitted).12

We conclude, based on the record before us, that the 

trial court properly granted Polygon’s motion for summary 

judgment on plaintiff’s negligence claim.

IV. CONCLUSION

In summary, we conclude that plaintiff submitted 

sufficient evidence that Polygon retained a right to control 

the risk-producing activity at issue in this case to withstand 

12 In addition to expanding the categories of persons responsible for maintaining a safe work place beyond a worker’s direct employer, as this court 

explained in interpreting an earlier version of what is now ORS 654.305:

“This statute *** imposes a higher standard of care than that imposed under 

the rules of the common law. It requires that[,] in the operation of dangerous 

machinery[,] the employer shall use ‘every device, care and precaution which 

it 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 appliance(s) and devices.’”

Fromme v. Lang & Co., 131 Or 501, 505, 281 P 120 (1929).
198 Yeatts v. Polygon Northwest Co.

Polygon’s motion for summary judgment with respect to that 

specification of plaintiff’s ELL claim. Accordingly, we reverse 

the decisions of the trial court and the Court of Appeals on 

that specification and remand it to the trial court for further 

proceedings. We affirm the decisions of the trial court and 

the Court of Appeals with respect to the other specifications 

of plaintiff’s ELL claim and his common-law negligence 

claim.

The decision of the Court of Appeals is affirmed in 

part and reversed in part. The decision of the circuit court 

is affirmed in part and reversed in part, and the case is 

remanded to the circuit court for further proceedings.

WALTERS, J., concurring.

I concur and write only to press an argument that 

plaintiff failed to make about the “special expertise or knowledge” principle. In my view, that principle is particular to 

claims against landowners and should not be extended to 

preclude a claim against a general contractor for its own 

common-law negligence.

This court previously has recognized that a general 

contractor can be held liable for its own negligence, even 

when the injured party is the employee of an independent 

contractor. In Kuhns v. Standard Oil Co., 257 Or 482, 485-

86, 478 P2d 396 (1971), the plaintiff, an employee of an independent contractor, sued both the general contractor and 

a different independent contractor for negligently causing 

his injury. This court upheld the jury’s verdict against the 

general contractor, concluding that there was evidence from 

which the jury could have found that the general contractor 

was negligent in failing to test, inspect, or repair the facility. 

Id. at 494. The court explained that, “apart from the question of vicarious responsibility on the part of an employer of 

an independent contractor, the employer may be liable for 

any negligence of his own in connection with the work to be 

performed.” Id. at 490. Accord Woodbury v. CH2M Hill, Inc., 

335 Or 154, 163, 61 P3d 918 (2003) (concluding that defendant general contractor could be liable to employee of independent subcontractor where there was evidence permitting 

jury to find defendant exercised control over safety aspects 
Cite as 360 Or 170 (2016) 199

of project and failed to provide plaintiff with fall protection 

training or supervision).

This court also has recognized that, when a plaintiff seeks to hold a general contractor vicariously liable for 

the negligence of an independent subcontractor, the “special expertise or knowledge” principle does not apply. In 

Macomber v. Cox, 249 Or 61, 65, 435 P2d 462 (1968), the 

court acknowledged the general principle that “the employer 

of an independent contractor is not subject to liability for 

bodily harm caused to another by a tortious act or omission 

of the contractor or his servants.” (Internal quotation marks 

omitted.) However, the court also cited the Restatement 

(Second) of Torts section 409 (1965), for the proposition that 

there are a variety of exceptions to that rule of immunity. 

Macomber, 249 Or at 65 n 3. The Restatement provides that 

that general principle does not apply when the general contractor fails to exercise reasonable care in the following circumstances: (1) in giving orders or directions; (2) in employing competent independent contractors; (3) in inspecting the 

work while it is in progress or after it is done; (4) in taking 

precautions necessary to enable the work to be done safely; 

(5) in performing the work that he retains to himself; and

(6) in supervising the equipment and methods of the independent contractor. Restatement (Second) of Torts §§ 410-

415. Thus, under both Kuhns and Macomber, a general contractor can be held liable for its own negligence when its 

negligence causes bodily harm to an employee of an independent contractor.

Historically, the “special expertise or knowledge” 

principle has been applied only to shield possessors of property from liability for the negligence of independent contractors hired to perform work in their areas of expertise. 

In Yowell v. General Tire & Rubber, 260 Or 319, 490 P2d 

145 (1971), the case on which defendant in this case relies, 

the defendant was a landowner who was not engaged in the 

business that he had hired an independent contractor to 

perform. Similarly, in the two cases cited by the court in 

Yowell—Feldewerth v. Great Eastern Oil Co., 149 SW2d 410, 

413 (Mo Ct App 1941), and Palenscar v. Michael J. Bobb, Inc., 

439 Pa 101, 105, 266 A2d 478 (1970)—the courts treated 
200 Yeatts v. Polygon Northwest Co.

the defendants as possessors of land and the plaintiffs as 

invitees on the land on which they were injured. In both of 

those cases, the courts discussed the principle outlined in 

section 343 of the Restatement (Second) of Torts defining the 

liability of a possessor of land to an invitee. Feldewerth, 149 

SW2d at 413; Palenscar, 439 Pa at 105. In contrast, general 

contractors are in the construction business and must perform their work safely. They should not be able to escape 

liability because their subcontractors are required to do 

likewise.

I disagree with this court’s statement in Yowell, 

in dicta, that, “[r]egardless of whether defendant is to be 

viewed in its relation to plaintiff primarily as a possessor of 

land or as one who contracts for services,” the result should 

be the same. 260 Or at 324. If a general contractor is itself 

negligent, the “special expertise or knowledge” principle 

should not apply to absolve that contractor of liability.