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Woodbury v. CH2M Hill9/10/2003
ve one of the boards from the platform, he lost his balance and was seriously injured when he fell onto the subsurface corridor.
"Plaintiff brought two claims against defendant. First, he asserted that defendant violated the . According to plaintiff, defendant at least indirectly employed him and, as his employer, failed to comply with various safety regulations applicable to employers at construction sites. In particular, plaintiff complained that defendant had failed to require the installation of guardrails on the platform and to provide plaintiff with training concerning the hazards of working in areas where there may be fall hazards. Second, plaintiff asserted that defendant was negligent in failing 'to provide proper training and supervision for the disassembly of the platform.'"
Woodbury, 173 Or App at 173-76.
II. DISPOSITION OF THE MERITS
The remaining assignments of error are (1) the trial court erred in failing to order a new trial because some of plaintiff's specifications of negligence were based on violations of administrative rules that, as a matter of law, do not apply; (2) the trial court erred in admitting a videotaped reenactment of what plaintiff asserted was the proper construction and dismantling of the platform from which he fell; (3) the trial court erred in allowing testimony that the platform did not have guardrails; (4) the trial court erred in admitting certain safety manuals; and (5) the trial court erred in failing to cap plaintiff's non-economic damages on his ELL claim. We address each assignment in turn.
A. Motion for a new trial
Plaintiff's sixth amended complaint asserted defendant's negligence in the following particulars:
"(a) In failing to establish and train workers in following a written safety plan/contractor's safety guideline for the construction project containing safety requirements for the supervision, installation, use and teardown of temporary work platforms or scaffolds;
"(b) In failing to require through its day-to-day supervision that the work platform or scaffold from which plaintiff fell conform to the detailed safety plan and that the workers involved with it be adequately trained about fall protection;
"(c) In failing to adequately inspect and supervise the assembly, use, and disassembly operation of the platform or scaffold;
"(d) In failing to conduct regular contractor meetings providing plaintiff with clear procedures for identifying fall hazards and avoiding injuries from falls;
"(e) In failing to properly train and supervise its own workers regarding the necessity for fall protection during installation, use, and disassembly of a temporary work platform or scaffold; and
"(f) In failing to provide competent supervision for the dismantling of a scaffold."
Defendant argues that three of those allegations--paragraphs (b), (d), and (e)--are based on alleged violations of Oregon Occupational Safety and Health Administration rules pertaining to fall protection. Defendant moved to strike those allegations; the trial court denied the motion. At the close of the evidence, defendant renewed its motion, which was denied.
Defendant now argues that the trial court erred in denying the motion for a directed verdict and that it is entitled to a new trial. According to defendant, because the challenged specifications were submitted to the jury, and because the verdict form did not specify the basis for the jury's negligence verdict, under the "we can't tell" rule of Whinston v. Kaiser Foundation Hospital, 309 Or 350, 357, 788 P2d 428 (1990), it is entitled to a new trial.
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