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Storm v. McClung6/7/2002
Argued and submitted May 8, 2001.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.
Plaintiff, the widow of Jon Storm and the personal representative of his estate, brought this wrongful death action, under ORS 30.020 against the City of Oregon City (the city) for the benefit of Storm's mother, Myrtha Storm, and his daughters, Sonia and Tami Storm. A jury found that Storm and the city were each 50 percent negligent in causing Storm's death and awarded damages. In accordance with ORS 30.050, the trial court entered a judgment for plaintiff that apportioned the damages between Storm's mother and daughters. The city appealed. The Court of Appeals held that Storm's daughters each had received a substantial remedy under the Workers' Compensation Law and, therefore, plaintiff was not entitled to any recovery on their behalf. Because the Court of Appeals concluded that plaintiff was not entitled to a recovery on behalf of her daughters, the court reversed the judgment and remanded the case for a retrial limited to assessing damages on behalf of Storm's mother. Storm v. McClung, 168 Or App 62, 64-69, 4 P3d 66 (2000). We allowed each party's petition for review.
We take the following facts from the opinion of the Court of Appeals:
"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, i
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