Opening the Door to Owner and General Contractor Liability Under Oregon’s Employer Liability Law

Open DoorGeneral contractors and other employers (even some owners) have greater exposure under Oregon’s Employer Liability Law (the “ELL”) to injured workers based on the recent Oregon Supreme Court decision in Yeatts v. Polygon Northwest Co. The 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. The ELL also imposes liability on an “indirect employer,” such as an owner or contractor, for a subtier contractor’s worker’s safety on a jobsite if the indirect employer retains the right to control how risky activities are performed.

For the last 50-plus years before Yeatts, an owner or contractor could insulate itself from liability under the ELL by delegating site safety responsibility to subtier contractors, while still maintaining the right to inspect the safety procedures or requiring greater safety measures than those imposed by law. In other words, merely having the right to inspect the safety procedures or require additional safety measures did not mean that an owner or contractor “controlled” the risky activity, thereby subjecting it to liability as an “indirect employer.” Continue Reading

Lack of Evidence of Prior Use Not Fatal to Implied Easement Claim

motocross-1283197_640On August 10, 2016, the Oregon Court of Appeals issued a decision on an implied easement claim, finding that the lack of evidence regarding the use of the easement before the initial conveyance of the benefited property was not fatal to the claim. Dayton v. Jordan, 280 Or App 236 (2016)

In Dayton, the parties own abutting properties, with the northern property line of the Jordan parcel abutting the southern boundary line of the Dayton parcel. An east-west private road runs along the southern boundary of the Dayton parcel. Both Dayton and Jordan run ATV rental businesses on their respective properties, and both properties use the private road across the Dayton parcel to reach the dunes. Not surprisingly, there is friction between the two property owners with their similar business uses.  Continue Reading

Smelter Not Liable Under CERCLA as an Arranger for Disposal

TVA_phosphate_smelting_furnaceA Ninth Circuit panel reversed a district court’s denial of a smelter owner’s motion to dismiss, holding that the owner/operator of a facility that emits airborne hazardous substances cannot be held liable as an arranger for disposal under CERCLA.

The case involves a smelter owned and operated by Teck Cominco Metals, Ltd., and located about ten miles north of the U.S.-Canada border. The plaintiffs alleged that the smelter had emitted hazardous substances into the air that later fell onto the cleanup site, leading to the incurrence of response costs. Continue Reading

In Vino Perseverance: Winery Launch Faces Barriers to Entry

Port_wineFrom The Ground Up contributor LeAnne Bremer recently had an article published in the Vancouver Business Journal titled “In Vino Perseverance: Winery Launch Faces Barriers to Entry.” The article discusses land use and permitting issues encountered by the founders of Windy Hills Winery in Clark County, Washington.

From either his robust laugh or his aromatic cigar, Dave Kelly’s presence is often sensed before seen. But in establishing Windy Hills Winery, one of Clark County’s newest wineries and vineyards, Dave shows his most essential qualities to be his fortitude to snip through the regulatory red tape and his sunny optimism that it will all work out in the end. As Dave puts it, there are many barriers to entry in building a winery, and it is not an enterprise for those with an impatient disposition or a light pocketbook.

Click here to read the full article.

Employment Law Issues for the Development Industry (June Update)


As mentioned in my April post, I plan to capture and consolidate employment law articles written by my colleagues on employment issues pertinent to the development industry. Below are three recent articles that you might find useful to your business, ranging from the new FLSA overtime rules to OSHA’s final rule on tracking workplace injuries.

Continue Reading

Not So Fast! Oregon’s New Negligent-Construction Statute of Limitations May Have Insurance Implications

5374200948_539b10fb1c_bLast Thursday, the Oregon Supreme Court issued its opinion in Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016), holding that the deadline to file a negligent construction-defect claim is two years from the time a plaintiff knew or should have known of damage resulting from the defect—not six years, as applied by the lower courts in the same case. This decision has implications for owners of residential and commercial structures because it narrows the window to discover and file a claim for defective work against a contractor. And while the decision appears to be a victory for contractors on first glance, the ensuing insurance implications could deal contractors a heavy blow. Continue Reading

Lead in Drinking Water: What Schools Need to Know

plumbing-1340243_960_720There’s no doubt that some attention has been given to the water quality at Oregon schools in the past month. But the issue has been around for some time. Since the late 1980s, concerns have been raised about lead leaching from pipes and faucets into water in schools. Yet no state or federal law requires schools to sample or take action to address lead in drinking water.

But under the Safe Drinking Water Act (the “SDWA”),[1] the United States Environmental Protection Agency (“EPA”) must develop a guidance program to address this issue. The guidance that EPA has developed instructs that the 20 parts per billion (“ppb”) (or 0.020 mg/l) level is the recommended “action level” for the amount of lead in drinking water that specifically applies in evaluating sampling results from schools and day care facilities. EPA recommends that schools and facilities take additional actions to evaluate and address specific problem areas (e.g., faucets and fountains) for which the sampling results show an exceedance of this level. Continue Reading

Controversial Cap on Damages Against Public Entities and Employees Upheld in Horton v. OHSU


While this case is not specifically related to the development industry, we believe the constitutional issues will be important to this blog’s audience and our public sector clients.

In May 2016, the Oregon Supreme Court upheld a controversial statutory cap on damages recoverable from state agencies and employees, in the process overruling two important Oregon cases. The decision in Horton v. OHSU changes the landscape for courts analyzing legislative limits on damages and other remedies. More than anything else, it protects the limited liability of public entities and their employees.

Horton involved a six-month-old boy, Tyson Horton, who underwent an operation at OHSU. The doctors cut across blood vessels, requiring Horton to undergo a liver transplant and additional surgeries. In 2013, a jury awarded $12 million to Horton. Continue Reading

SCOTUS Provides Pathway to Courts’ Challenging Army Corps’ Wetlands Calls

wetland-scene-in-the-catskills-mountainsAccess to courts to resolve disputes early on in a permitting process is critical for land use projects in terms of time- and cost-savings. In Army Corps of Engineers v. Hawkes, issued on May 31, 2016, the U.S. Supreme Court effectively agreed by ruling that a permit applicant need not await the completion of the permitting process before challenging the Corps’ determination that wetlands exist on the property, nor must an applicant wait until the Corps brings enforcement proceedings, if the applicant filled the wetlands, because of the risk of serious criminal and civil penalties.

At issue in this case is whether an owner can appeal the Corps’ “jurisdictional determination” of the existence, extent and nature of wetlands on a development site to court at the time the Corps makes the determination, and whether this is a final agency action for the purposes of the Administrative Procedure Act. Continue Reading

Portland Commissioner Saltzman Proposes New 1% Construction Excise Tax

5120304358_72af165e30Today Portland Commissioner Dan Saltzman, whose bureau assignments include the Portland Housing Bureau and the Bureau of Development Services, proposed a new excise tax on residential and commercial development equal to one percent of the total permit valuation, revenue from which would be dedicated to build and preserve affordable housing.

The tax is estimated to raise approximately $8 million per year—approximately $5.4 million per year from construction excise taxes on residential projects and approximately $2.6 million per year from taxes on commercial projects.  Continue Reading