 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Davis v. United States Employers Council Inc.3/19/1997
HASELTON, Judge.
Plaintiff appeals from an adverse judgment, which was entered after allowance of an involuntary dismissal, in an action for workplace personal injury . The trial court concluded that the exclusive remedy provision of the workers' compensation law, ORS 656.018, barred plaintiff's claim, because plaintiff's proof was legally insufficient to establish that his injury resulted "from the deliberate intention of the employer * * * to produce such injury." ORS 656.156(2).
The trial court granted the defendant employer's motion for involuntary dismissal based on its assessment of plaintiff's proof after plaintiff's opening statement. See Sadler v. Sisters of Charity, 247 Or. 50, 426 P.2d 747 (1967) (describing procedure). We review that ruling as we would the granting of a directed verdict for defendant and, thus, view the evidence described in plaintiff's opening statement and all reasonable collateral inferences in the light most favorable to plaintiff. See Palmer v. Murdock et al., 233 Or. 334, 343, 378 P.2d 271 (1963). So viewed, the record discloses the following material facts:
From 1982 until 1991, plaintiff worked as an automobile painter in defendant's Beaverton Honda body shop. Over that time, plaintiff was regularly exposed to excessive levels of toxic paint fumes and, as a result, suffered regular and increasingly severe symptoms of a respiratory nature, headaches, eye irritation, lightheadedness, and memory loss. Other workers in the body shop experienced similar problems. Plaintiff and his co-workers repeatedly complained to defendant's management about the paint fumes, the lack of adequate ventilation, and their symptoms.
Defendant knew that the conditions in the body shop were hazardous and that its employees, including plaintiff, were being injured because of those conditions. Defendant's choice as to the physical layout and surrounding areas, types of paint and painting methods used, and the inadequacy or
absence of protective equipment and other safeguards materially contributed to the neurological problems plaintiff experienced. Although defendant undertook some remedial measures, it refused to undertake others, including providing enclosed spray paint booths and air-supplied respirators. Defendant knew that its remedial methods were inadequate and, in at least some respects, did not satisfy regulatory requirements. Indeed, on at least two occasions, defendant's managers lied and actively concealed safety/ventilation violations from occupational safety inspectors.
Defendant's sole reason for refusing to undertake adequate safety measures was to save money.
Plaintiff's symptoms became increasingly severe but were transient and did not completely incapacitate him until June 4, 1991, when, as a result of an accident, he was suddenly exposed to extreme levels of toxic fumes. On June 11, 1991, plaintiff consulted his physician, who, in turn, referred him to an occupational medical specialist. On July 20, that specialist diagnosed plaintiff as having chronic toxic encephalopathy, with organic brain damage. Plaintiff's condition was caused by excessive exposure to toxic paint fumes.
On April 12, 1993, plaintiff brought this action, alleging that defendant acted with deliberate intention to produce injury to plaintiff in that it refused to provide adequate safety equipment and to undertake other remedial measures, notwithstanding its knowledge that plaintiff and others were suffering substantial ongoing harm as a result of excessive exposure to toxic fumes. Plaintiff alleged, inter alia, that the exposure for the entire period of his employment, from 1982 onward, constituted a "cont
Page 1 2 3 4 5 6 7 8 9 10 11 12 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|