Opinion
3:22-cv-00094-AR
10-13-2022
CARLOS NIEVES, Plaintiff, v. RYDER LAST MILE, INC., a Foreign Corporation formerly known as MXD Group, Defendant.
FINDINGS AND RECOMMENDATION
JEFFREY ARMISTEAD, United States Magistrate Judge
Plaintiff Carlos Nieves was severely injured by his delivery truck when it jumped the safety blocks he had placed on the truck's two front wheels. Nieves asserts that defendant Ryder Last Mile, Inc., hired his employer JV/N Transportation, LLC (JV) and overloaded the truck, despite his objection. Nieves brings this action against defendant Ryder Last Mile, Inc., alleging common-law negligence and negligence under Oregon workplace safety statutes. Ryder moves for partial dismissal of Nieves's claims under Federal Rule of Civil Procedure 12(b)(6). As explained below, the motion should be denied in part and granted in part
BACKGROUND
Nieves was working as a delivery truck driver employed by JV, a delivery trucking company. Compl. ¶ 2, ECF No. 1-1. JV paid Changi Express LLC, formerly known as N Trucking Ltd. (N Trucking), for the deliveries Nieves would make. Id. On a Sunday morning, December 15, 2019, Ryder hired JV to deliver furniture to a Ryder customer in Portland, Oregon, and to perform several other deliveries. Id. Prior to the delivery, Ryder loaded the N Trucking vehicle that Nieves would be driving. Id. Nieves complained to Ryder that the total payload exceeded the truck's limit for safe operation and that the number of deliveries would be difficult to complete. Id. Ryder responded that there would be consequences for JV or N Trucking if he refused to perform the deliveries with the truck as loaded. Id.
Around 9 a.m., Nieves arrived at the customer's delivery location and parked the truck on an incline. Id. ¶ 3. Nieves exited the truck and placed safety blocks under the front wheels. Id. Nieves then removed a box from the truck and, using a dolly, transported the box to the customer's SUV parked in front of the truck. Id. While loading the box into the SUV, the delivery truck jumped the safety blocks and rolled into Nieves, pinning him between the truck and SUV. Id. Nieves's coworker jumped into the truck and stopped it from crushing Nieves further. Id. Nieves was pinned between the truck and SUV for about 30 seconds. Id. Nieves immediately was transported to a hospital by ambulance.
Nieves's injuries included a closed right wrist fracture dislocation, closed left ankle fracture, left ankle ligament disruption, left knee sprain, left knee medial ligament tear, and right rib fracture. Id. ¶¶ 4, 10. Nieves has undergone medical procedures and surgeries, incurring medical, hospital, doctor, therapy, nursing, and rehabilitation expenses. Id. ¶ 13. Nieves seeks over $2.8 million in damages for medical expenses, lost wages, and lost future earning capacity. Id.
On December 15, 2021, Nieves filed this action in Multnomah County Circuit Court alleging four claims: (1) common-law negligence (Claim 1); (2) negligence based on two provisions of Oregon's Employer Liability Law (ELL)-Oregon Revised Statutes (ORS) § 654.305, which imposes a higher standard of care for those responsible for risky or dangerous work conditions (Claim 2), and ORS § 654.310, which imposes liability for violating certain workplace safety regulations (Claim 3); and (4) negligence per se under Oregon's Safe Employment Act (OSEA), ORS § 654.005 (Claim 4). On January 19, 2022, Ryder removed the action to this court. Notice of Removal, ECF No. 1. On March 14, 2021, Ryder moved to dismiss Claims 2 through 4. On March 24, 2022, this action was reassigned to this court. Notice of Reassignment, ECF No. 14. On October 12, 2022, the court heard oral argument. Minutes of Proceedings, ECF No. 22.
The alleged safety violations are 49 C.F.R. § 396.7(a); 29 C.F.R. § 1926.21(b); 29 C.F.R. § 1926.21(b)(2); OAR 437-001-0760(7); and ORS § 654.305.
LEGAL STANDARDS
To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). The court must accept as true all well-pleaded factual allegations in the complaint and construe all reasonable inferences in the plaintiff's favor. Mashiri v. Epsten Grinnel & Howell, 845 F.3d 984, 988 (9th Cir. 2017); see also Iqbal, 556 U.S. at 679. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Ryder argues that Claim 2 fails to state a claim because Nieves's work-the simple delivery of a parcel-did not involve inherent risk or danger. Thus, in Ryder's view, ORS § 654.305 does not apply. Nieves argues otherwise and that whether his work involved risk or danger is a question of fact for the jury. As to Claim 3, Ryder argues that ORS § 654.310 does not apply to it because it is not an “owner, contractor, or subcontractor” engaged in the “operation of any machinery.” Nieves counters that, under the ELL, the statute applies to Ryder as an owner or indirect employer. As to Claim 4, Nieves concedes that Claim 4 is not viable and has agreed to voluntarily strike it. Pl.'s Mem. Opp'n at 3, ECF No. 15. Accordingly, the court addresses only whether Claims 2 and 3 state plausible claims for relief.
A. Claim 2 - ORS § 654.305
In Ryder's view, Claim 2-negligence based on a heightened standard of care imposed under ORS § 654.305 for risky or dangerous workplaces, Miller v. Goodyear Tire & Rubber Company, 434 F.Supp.3d 877, 882 (D. Or. 2020)-fails because Nieves did not adequately allege that the work he performed involved an inherent risk or danger. Mot. to Dismiss at 3-6, ECF 12. Ryder argues that the risk-producing activity was delivering a parcel, which is not dangerous, risky, or hazardous as a matter of law. The court disagrees.
“The ELL imposes a heightened statutory standard of care on a person or entity who is either in charge of, or responsible for, any work involving risk or danger.” Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159 (2003); Yeatts Whitman v. Polygon N.W. Co., 360 Or. 170, 179 (2016); Anderson v. Intel Corp., Case No. 3:20-cv-02138-AC, 2021 WL 1401492, at *3 (D. Or. Apr. 14, 2021). ORS § 654.305 provides:
Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall 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.
ELL liability may 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, 335 Or. at 160; Helland v. Hoffman Const. Co. of Or., Case No. 3:11-cv-01157-HU, 2013 WL 5937001, at *4 (D. Or. Nov. 3, 2013). A “defendant may be liable under the ELL as an indirect employer if that defendant retained the right to control the manner in which the risk-producing activity was performed.” Sanford v. Hampton Res., Inc., 298 Or.App. 555, 568-69 (2019). The ELL protections extend only to employees engaged in work involving risk or danger. Woodbury, 335 Or. at 159; Anderson, 2021 WL 1401492, at *3; Quirk v. Skanska USA Bldg., Inc., 3:16-cv-0352-AC, 2018 WL 2437537, at *7 (D. Or. May 30, 2018).
Ryder does not challenge its status as an indirect employer for purposes of this motion, but expressly reserves its right to do so in future motions. Def.'s Reply at 4-5, ECF No. 16.
In Claim 2, Nieves alleges that Ryder had responsibility for the work involving risk or danger because it was in charge of and had actual control over the loading of the truck Nieves used for deliveries. Compl. ¶¶ 19-20. Nieves alleges that Ryder: (a) overloaded the truck with such a large payload, the truck's limit for safe operation was exceeded and created the hazard of the truck jumping the safety blocks; (b) allowed the truck to be loaded in an unsafe manner; (c) failed to employ competent safety personnel and mechanics to inspect the delivery trucks to ensure the cargo was not overloaded; (d) failed to adequately train, inspect, and supervise the loading of cargo for delivery to ensure the truck was free from hazards; (e) failed to require compliance with a written safety plan for loading, inspecting, and delivery of cargo onto delivery trucks; failed to prohibit overloading of trucks; and (f) violated rules and regulations prescribed by the Department of Consumer and Business Services. Compl. ¶¶ 2, 9, 26.
The Oregon Supreme court has interpreted “work involving a risk or danger” under ORS § 654.305 to include both the worker's discrete task and the conditions under which the worker performs that task. Woodbury, 335 Or. at 161-62 (“work involving a risk or danger” as defined in ORS § 654.305 “refers to conditions of the work that create the possibility that a worker will suffer harm,” which included “requiring [the] plaintiff to work at height during the assembly, use, and disassembly of the platform”). To fall under the ELL, Nieves's work must be so “inherently dangerous or presented dangers so uncommon that the employment would be classed as work involving risk or danger.” Kruse v. Coos Head Timber Co., 248 Or. 294, 303 (1967). “Ordinarily, the question of whether a particular employment is inherently dangerous is for the jury to decide from the evidence in the case,” and only in “clear cases,” is a court authorized to decide as a matter of law that work does not involve risk or danger under the ELL. Snyder v. Seneca Lumber Co., 207 Or. 572, 577 (1956).
Magistrate Judge John V. Acosta recently examined “work involving a risk or danger” and concluded that a worker sufficiently stated a claim under the ELL when she alleged that she needed to retrieve parts from the “laydown area” in a basement that was “cluttered, poorly lit, dusty, and slippery.” Anderson, 2021 WL 1401492, at *4-5; see also Spain v. Jones, 257 Or.App. 777, 794 (2013) (“work involving a risk or danger” included plaintiff's “installation of plumbing fixtures on second floor” and “his walk along the unprotected second-floor hallway”); cf. Kemper v. MWH Constructors, Inc., Case No. 3:21-cv-145-SI, 2021 WL 1914212, at *3 (D. Or. May 12, 2021) (noting that a pipe the worker tripped over was visible, free from clutter, and that it was not slippery; holding that “[w]orking around trip hazards is not so uncommon that the employment should be classified as work involving risk or danger”).
Given this case law, Nieves sufficiently alleges that his work involves a risk or danger. Nieves alleges much more than that he was simply delivering a parcel. Instead, Nieves alleges that Ryder was responsible for loading the cargo onto the truck and that he questioned the truck's safety because the cargo exceeded the truck's payload limit. Compl. ¶ 2. Nieves further alleges that his work involved risky or dangerous conditions because his safety concerns were ignored and because he was pressured to make the deliveries with the unsafe truck on a Sunday shortly before the Christmas holiday or suffer the consequences. Id. ¶¶ 2, 3. Nieves alleges that he used the safety blocks and that the truck swiftly jumped the safety blocks and pinned him. Id. ¶ 3. Nieves further asserts that overloaded and unbalanced trucks are a leading cause of truck-related accidents. Id. ¶ 5. From these facts, the court reasonably infers that Nieves alleges the truck would not have jumped the safety blocks had the truck not been overloaded or unbalanced. Based on these facts and reasonable inferences, the court finds that this is not a clear case in which it is authorized to decide as matter of law that the work did not involve risk or danger- Nieves adequately alleges his work involved a risk or danger sufficient to state a plausible claim under the ELL. Groeneweg v. JELD-WEN, Inc., 6:20-cv-01030-AA, 2020 WL 7265366, at *6 (D. Or. Dec. 10, 2020) (concluding that driver who was injured when removing windows from trailer that were bundled and loaded onto truck by JELD-WEN's employees stated claim under ORS § 654.305).
The court is not persuaded by the cases cited by Ryder. As Nieves correctly highlights, Oregon appellate courts have moved away from the narrow view of “work” in favor of the broad construct of ELL liability discussed in Woodbury and noted above. Anderson, 2021 WL 1401492, at *4 n.2; Quirk, 2018 WL 2437537, at 8-9.
Additionally, as Nieves correctly contends, Ryder may be held liable under the ELL if it retained the right to control, or actually controlled, the manner or method the risk-producing activity was performed. Woodbury, 335 Or. at 160; Groeneweg, 2020 WL 7265366, at *6; Sacher v. Bohemia, Inc., 302 Or. 477, 486 (1987) (stating it is “control or charge over the activity or instrumentality that causes the injury” that triggers liability) (footnote omitted). Nieves's allegations-including his allegation that Ryder stated that there would be consequences if Nieves did not carry out the delivery as directed by Ryder-are sufficient to plausibly allege that Ryder controlled the manner and method that the truck was loaded. That sufficiently alleges that Ryder had control over the risk-producing instrumentality. Thus, Nieves adequately pleads a claim under ORS § 654.305 and Ryder's motion to dismiss Claim 2 should be denied.
B. Claim 3 - ORS § 654.310
In its Motion to Dismiss, Ryder contends as to Claim 3 that it is not liable under ORS § 654.310 for violating safety regulations because it is not an “owner, contractor or subcontractor (or otherwise) engaged in the . . . operation of any machinery.” Mot. to Dismiss at 6-7. Nieves responds that ORS § 654.005(6) defines “owner” for purposes of the ELL as “every person having ownership, control or custody of any place of employment,” the ELL applies to a person or entity that exercises control over a plaintiff's workplace, and that he has adequately alleged that Ryder had such control. Response to Motion to Dismiss at 11, ECF 15. Nieves also responds that the delivery truck qualifies as “any machinery.” Id. The court agrees with Nieves that he has plausibly alleged that ORS § 654.310 applies to Ryder.
ORS § 654.310 provides:
All owners, contractors, subcontractors, or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.In Quirk, Judge Acosta concluded that ORS § 654.310 “imposes indirect employer liability under the ELL to the same extent and employing the same analysis as its companion provision, ORS 654.305.” Quirk, 2018 WL 2437537, at *24-25. Ryder has supplied no argument to the contrary, and this court sees no reason to conclude otherwise.
Under the ELL and ORS § 654.305, as explained earlier, an entity may be subject to indirect employer liability if it “(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.” Id. at 9. Further, as noted by Nieves, an owner is defined as every person having control over the place of employment. ORS § 654.005(6). Under ORS § 654.005(8)(a)(A), a “place of employment” includes “[e]very place, whether fixed or movable or moving, whether indoors or out or underground, and the premises and structures appurtenant thereto, where either temporarily or permanently an employee works or is intended to work.”
Rather than ORS § 654.305's imposition of liability for those who are responsible for work involving risk or danger, ORS § 654.310 concerns the obligation of “owners, contractors, subcontractors, or persons” to “see that all places of employment are in compliance with every applicable” regulation or rule adopted by the Department of Consumer and Business Services (DCBS), i.e., safety regulations. Hence, the ways a defendant can be classified as an indirect employer under § 654.305 for controlling the risk-producing activity do not necessarily apply to the obligation of defendants for controlling compliance with applicable safety regulations. That is, that a defendant is an indirect employer for purposes of deciding the applicability of ORS § 654.305 does not necessarily answer the question whether a defendant is an indirect employer for purposes of deciding the applicability of ORS § 654.310. However, the ways liability can be imposed on an entity or person under ORS § 654.305 is readily translatable to ORS § 654.310: An entity may be subject to indirect employer liability if it (1) is engaged with the plaintiff's direct employer in a ‘common enterprise'; (2) retains the right to control compliance with applicable safety regulations where an employee works; or (3) actually controls compliance with applicable safety regulations where an employee works.
With that said, Nieves plausibly alleges that ORS § 654.310 is applicable to Ryder. Nieves alleges that Ryder was engaged in a common enterprise with his employer in the loading, inspection, and delivery of cargo in his delivery truck; exercised actual control of the work; retained control of the work; and had the right to control Nieves's delivery of cargo to Ryder's customers. Compl. ¶¶ 6, 20. Further, Nieves alleges that Ryder, as the provider of home delivery and logistics solutions to its customers through the use of outside delivery trucking services had a duty to furnish Nieves with a place of employment that was safe and healthful for Nieves, who was a member of the class of persons intended to be protected by applicable safety regulations. Compl. ¶ 25. Nieves also alleges that Ryder failed to see that Nieves's place of employment complied with safety regulations adopted by DCBS. Compl. ¶ 26. Together, those allegations are sufficient to allege that Ryder is an indirect employer for the purpose of establishing liability under ORS § 654.310.
Ryder does not offer any arguments concerning the statutory construction of “operation of any machinery.” In the absence of such arguments, see State v. Gaines, 346 Or. 160, 171-72 (2009) (setting out the methodology for statutory construction), the court finds that Nieves has plausibly pleaded that Ryder was engaged in the “operation of any machinery” under ORS § 654.310. In Arellano v. Lamb Weston, Inc., Case No. 2:20-cv-00371-SU, 2021 WL 666960, at *4 (D. Or. Feb. 19, 2021), Magistrate Judge Patricia Sullivan concluded that the operation of forklifts is encompassed by the meaning of “operation of any machinery.” Here, Nieves has alleged, among other things that Ryder was responsible for loading the cargo onto the commercial delivery truck that was later operated by Nieves, and that Ryder was responsible for ensuring that the delivery truck would not be operated unsafely and in violation of safety regulations. Compl. ¶ 6, 9, 19. Like in Arellano, the court concludes that the alleged facts concerning the loading of Nieves's delivery truck falls within the meaning of “operation of any machinery.”
In Ryder's Reply Brief, it argues that, because Nieves conceded his claims under the OSEA in Claim 4 in his responsive briefing, Nieves has also agreed that the safety codes identified in paragraph 26 of the Complaint do not apply to Ryder. The court disagrees. Nieves's concession of Claim 4 simply states that “the OSEA does not apply to the facts of this case.” Pl.'s Mem. Opp'n at 3. Nieves has not conceded that the alleged safety regulation violations do not apply under the ELL and ORS § 654.310. Although the court will not speculate about Nieves's reasons for conceding Claim 4, the court notes that it is possible that Nieves withdraws Claim 4 because it was persuaded by Ryder that the OSEA does not apply to indirect employers for a negligence per se action under the OSEA. Construing Nieves's response as Ryder suggests essentially concedes that no regulatory violation occurred-a statement Nieves never makes.
To the extent that Ryder is asserting in its Reply Brief that it argued in its Motion to Dismiss that the safety regulations do not apply to Nieves's ELL claim, the court disagrees. Ryder's challenge to the safety regulations in its Motion to Dismiss was limited to Claim 4, not Claim 3. The Motion to Dismiss as to Claim 4 argues that Oregon case law limits negligence per se actions for safety regulation violations under the OSEA to employers, not owners. See Miller, 434 F.Supp.3d at 884 (“The Oregon Court of Appeals has held that “noncompliance with the OSEA cannot be the basis for a negligence per se claim against an indirect employer.” (Quoting George v. Myers, 169 Or.App. 472, 478 (2000)).). As noted, Ryder's argument concerning Claim 3 was confined to its argument that it was not an owner, contractor, subcontractor, or person engaged in the operation of machinery. Further, Nieves's response to Ryder's Motion to Dismiss does not raise arguments about the alleged violations of safety regulations. Consequently, to the extent that Ryder argues that the safety regulations do not apply to Nieves's ELL claim, the court need not consider it. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).
Ryder is not foreclosed from challenging at a later stage in the proceedings the applicability of the alleged safety-regulation violations under the ELL and the record as developed from discovery.
Accordingly, the court concludes that Nieves adequately pleads a claim under ORS § 654.310 and recommends that Ryder's Motion to Dismiss Claim 3 be denied.
CONCLUSION
For the reasons stated, Ryder's Motion to Dismiss Claims 2 and 3 (ECF No. 12) should be DENIED. Ryder's Motion to Dismiss Claim 4 should be GRANTED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.