ORS 654.305¹
Protection and safety of persons in hazardous employment generally

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. [Amended by 1997 c.249 §199]

Notes of Decisions

To recover under Employer’s Liability Act against per­son other than injured worker’s employer, injured worker must es­tab­lish that defendant had actual charge of plaintiff’s work or had right to control manner in which plaintiff performed that work or that defendant and plaintiff’s employer were engaged in work on common enterprise. Torres v. US Na­tional Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construc­tion Co., 202 Or App 577, 123 P3d 338 (2005)

Where plaintiff suffered on-the-job injury alleging employe of defendant was neg­li­gent in connec­tion with accident and alleges defendant is his “indirect employer” for purposes of Employer’s Liability Act, defendant and employe sent to advise and assist had no responsibility for safety of equip­ment or plaintiff’s job safety and trial court did not err in directing verdict for defendant. Fortney v. Crawford Door Sales Corp., 97 Or App 276, 775 P2d 910 (1989)

Defendant supplier of scaffold which caused plaintiff’s worker’s injury was not subject to Employer’s Liability Act where defendant retained no control over scaffold or its use and had no connec­tion with plaintiff’s job ac­tivity after bringing scaffold to job site. Steiner v. Beaver State Scaffolding Equip­ment Co., 97 Or App 453, 777 P2d 965 (1989)

“Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998)

Person Who Is not Direct Employer of Plaintiff Is Liable Under Employer Liability Law If Person

(1) engages with direct employer in common enterprise; (2) retains right to control manner or method in which risk-producing ac­tivity is performed; or (3) actually controls manner or method in which risk-producing ac­tivity is performed. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

Person Is Engaged In Common Enterprise With Direct Employer of Plaintiff When

(1) opera­tions of per­son are integral to or component part of work; (2) work involves risk or danger to employees or public; (3) per­son has adopted plaintiff as employee or allowed intermingling of work performed by employees and plaintiff; and (4) per­son has charge of, or responsibility for, ac­tivity or instru­mentality that caused plaintiff’s injury. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

Notes of Decisions

In General

The standard of care re­quired by this sec­tion is inapplicable to ac­tions brought under general maritime law or Longshoremen’s and Harbor Workers’ Compensa­tion Act. Birrer v. Flota Mercante Grancolombiana, 386 F Supp 1105 (1974)

A collective bargaining agree­ment did not give employer right to actual control, and without such right to directly control injury-creating ac­tivity Act does not apply. Wienke v. Ochoco, 276 Or 1159, 558 P2d 319 (1976)

Inap­pli­ca­bil­i­ty of Employer Liability Act does not preclude bringing claim for common-law negligence. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

Where general contractor retained right to require addi­tional safety measures and to inspect work site in entirety, general contractor also retained some contractual responsibility for subcontractor’s employees at work site. Yeatts v. Polygon Northwest Co., 360 Or 170, 379 P3d 445 (2016)

Applica­tion of the Act Generally

This Act did not apply to the ac­tion brought by a longshoreman against the shipowner which was covered by the Federal Longshoremen’s and Harbor Worker’s Compensa­tion Act. Crowshaw v. Koninklijke Nedlloyd, B V. Rijswijk, 398 F Supp 1224 (1975)

Before Employer’s Liability Act can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situa­tion where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situa­tion in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing ac­tivity is performed. Miller v. Ga.-Pacific, 294 Or 750, 662 P2d 718 (1983)

Injured worker had no claim under these sec­tions against business which was not his employer and whose sole connec­tion with worker’s activities was to deliver ma­te­ri­als which injured worker to jobsite. Dingell v. Downing-Gilbert, Inc., 81 Or App 545, 726 P2d 937 (1986), Sup Ct review denied

Rela­tions of Parties As Affecting Duties and Liability

Vice-principal de­fense was not available to general contractor for injury to foreman employed by subcontractor caused by absence of safety measures for which general contractor was responsible and in connec­tion with which foreman had no delegated duties from either his employer or the general contractor. Kauffman v. L.D. Mattson, Inc., 61 Or App 462, 657 P2d 720 (1983), Sup Ct review denied

Where defendant had right to exercise control over use of forklift which resulted in plaintiff’s injury, plaintiff was employe of defendant as a matter of law under this Act and failure to so instruct jury was reversible error. Helms v. Halton Tractor, 66 Or App 890, 676 P2d 347 (1984), Sup Ct review denied

Where employer had retained right to control risk-creating ac­tivity, plaintiff has claim under Employers’ Liability Act as indirect employee if there is connec­tion between plaintiff’s employer’s work and that of defendant. Flores v. Metro Machinery Rigging, Inc., 99 Or App 636, 783 P2d 1024 (1989), Sup Ct review denied

Chapter 654

Notes of Decisions

An administrative regula­tion requires Accident Preven­tion Division to prove reasonableness of civil penalty imposed for viola­tion of Oregon State Employ­ment Act. Accident Preven­tion Div. v. Sunrise Seed, 26 Or App 879, 554 P2d 550 (1976)

Accident Preven­tion Division rule allowing cita­tion for “repeat viola­tion” of division’s safety standards while prior cita­tion is contested and not yet upheld by final order is within agency’s authority to promulgate rules consistent with purpose of Act to assure as far as possible safe and healthful working condi­tions. Accident Preven­tion Div. v. Hoffman Construc­tion, 64 Or App 73, 667 P2d 543 (1983)

Atty. Gen. Opinions

Inap­pli­ca­bil­i­ty of occupa­tional safety and health laws to inmates in prison work programs, (1996) Vol 48, p 134

1 Legislative Counsel Committee, CHAPTER 654—Occupational Safety and Health, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors654.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 654, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano654.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information