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Storm v. McClung5/31/2000
Appeal from Circuit Court, Clackamas County.
Robert D. Herndon, Judge.
Argued and submitted February 19, 1999.
On appeal, reversed and remanded for new trial on damages on behalf of Myrtha Storm only; affirmed on cross-appeal.
ARMSTRONG, J.
Plaintiff, the widow of Jon Storm and personal representative of his estate, brought this wrongful death action against the City of Oregon City (the City) for the benefit of Storm's mother, Myrtha Storm, and his daughters, Sonia and Tami Storm. ORS 30.020. The City appeals from a judgment for plaintiff that was based on the jury's finding that the City and Storm were each 50 percent negligent in Storm's death. We hold that Sonia and Tami have each received a substantial remedy under the Workers' Compensation Law and that plaintiff is not, therefore, entitled to any recovery on their behalf. We therefore reverse and remand for retrial on the issue of damages solely on behalf of Myrtha.
Storm was an employee of Bud's Towing, an Oregon City business owned by Del Bullock. Bullock was active in civic affairs, at times loaning his business equipment and employees for city projects. Storm was similarly involved; among other things, he was a member of the Arbor Day Clean Up Committee, which Rick McClung, the City's director of public works, chaired. The members of the committee other than McClung were, like Storm, volunteers interested in the "beautification and enhancement of the city."
Storm died on May 4, 1994, in the process of an Arbor Day project at the City's Clackamette Park, which is located at the confluence of the Clackamas and Willamette rivers. The city wanted to top a number of cottonwood trees in the park, both because the trees were potentially dangerous and to create nesting sites for birds. It had previously paid a professional tree service to fell a number of trees in the park; city employees did not believe that they were qualified to do the work safely. The jury could have found that topping a tree is more dangerous than felling it. A city employee examined the trees in April 1994 and identified six that were particularly dangerous because of their location and condition. The City knew from the employee's written report that tree "F" contained rotten wood, which increases the dangerousness of a cottonwood. McClung suggested that the Arbor Day committee include topping those six trees among the projects for its spring clean-up period, which ran for several weeks in May and June. If the City had been unable to find volunteers, either through the committee or otherwise, it would again have hired a contractor; its own employees would not have done the job .
Storm was one of the volunteers who worked on topping the trees. Bud's Towing provided equipment for use on the job . Bullock was present for only a small part of the time, but Storm participated throughout the day. The equipment that Bud's Towing provided included a crane that had a bucket at one end; of those present, only Storm and Bullock were qualified to operate it. Michael Huffman, the person cutting the trees, stood in the bucket thirty feet above the ground in order to top the trees. Storm did not originally do any of the cutting because he had to operate the crane. After the group successfully topped several trees, it turned to tree "F." After Huffman had cut a significant distance through the trunk of that tree, the top began to move toward him, rather than away from him. The movement ultimately trapped the saw within the cut. Huffman shut off the saw, and the group spent about an hour discussing what to do next. Bullock arrived during the discussion.
The group ultimately decided that St
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