Occupational Safety and Health

ORS 654.325
Who may prosecute damage action for death

  • damages unlimited


If there is any loss of life by reason of violations of ORS 654.305 (Protection and safety of persons in hazardous employment generally) to 654.336 (Comparative negligence) by any owner, contractor or subcontractor or any person liable under ORS 654.305 (Protection and safety of persons in hazardous employment generally) to 654.336 (Comparative negligence), the surviving spouse and children and adopted children of the person so killed and, if none, then the lineal heirs of that person and, if none, then the mother or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded. If none of the persons entitled to maintain such action reside within the state, the executor or administrator of the deceased person may maintain such action for their respective benefits and in the order above named.
§§ 654.305 to 654.336

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


Source

Last accessed
Jun. 26, 2021