Golik v. CBS Corp. , 306 Or. App. 202 ( 2020 )

202
Argued and submitted March 22, 2018, affirmed on appeal and cross-appeal
August 26, 2020
Alice J. GOLIK,
individually and as personal representative
of the Estate of Robert J. Golik,
Plaintiff-Appellant
Cross-Respondent,
v.
CBS CORPORATION,
fka Viacom, Inc., a Delaware corporation,
sued as successor by merger with CBS Corporation,
fka Westinghouse Electric Corporation, et al.;
Weyerhaeuser Company, a Washington corporation;
and Longview Fibre Paper and Packaging, Inc.,
a Washington corporation,
Defendants,
and
GEORGIA-PACIFIC CONSUMERS
PRODUCTS (CAMAS), LLC,
a Washington corporation,
sued individually and as successor-in-interest
to Crown Zellerbach Corp.,
Defendant-Respondent
Cross-Appellant.
Multnomah County Circuit Court
130811192; A160322
472 P3d 778
In this civil case, a jury found Georgia Pacific Consumer Products (Camas),
LLC, as successor to Crown Zellerbach Corp., owner of a paper mill in Camas,
Washington, liable for Robert Golik’s death from mesothelioma. After the trial
court entered a general judgment in favor of plaintiff, defendant received, for
the first time, certain documents that it had requested during discovery, which
provided detail regarding some of Golik’s other exposures to asbestos. Based on
one of the newly obtained documents, the trial court entered an order granting
defendant’s motion for a new trial. In the same order, the court denied defen-
dant’s motion for judgment notwithstanding the verdict (JNOV). Plaintiff appeals
the new-trial order and the subsequent order vacating the general judgment.
Defendant cross-appeals, assigning error to the court’s denial of its JNOV motion,
among other things. Held: The court did not err in ordering a new trial based on
misconduct of the prevailing party or in denying defendant’s JNOV motion.
Affirmed on appeal and cross-appeal.
Cite as 306 Or App 202 (2020) 203
Karin Johana Immergut, Judge. (Order-May 28, 2015;
Judgment-June 30, 2015; Order-August 14, 2015)
Nan G. Waller, Judge. (Order-August 26, 2015)
Kathryn H. Clarke argued the cause and filed the reply
brief for appellant-cross-respondent. Also on the opening
brief was R. Walker Humphrey II, Texas.
R. Daniel Lindahl argued the cause for respondent-
cross-appellant Weyerhaeuser Company. Also on the briefs
were Bullivant Houser Bailey PC, and Joshua J. Metcalf,
Nick C. Giallourakis, and Forman Watkins & Kurtz LLP,
Mississippi.
Susan Marmaduke argued the cause for respondent-
cross-appellant Georgia-Pacific Consumer Products (Camas),
LLC. Also on the briefs were J. Aaron Landau and Harrang
Long Gary Rudnick P.C.
J. Michael Mattingly, Kevin Clonts, and Rizzo Mattingly
Bosworth PC filed the briefs for respondent-cross-appellant
Longview Fibre Paper and Packaging, Inc.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
JAMES, J.
Affirmed on appeal and cross-appeal.
204 Golik v. CBS Corp.
JAMES, J.
In this civil case, a jury found defendant Georgia
Pacific Consumer Products (Camas), LLC, as successor to
Crown Zellerbach Corp., owner of a paper mill in Camas,
Washington, liable for Robert Golik’s death from mesotheli-
oma.1 The trial court entered a general judgment in favor of
Golik’s wife, on her own behalf and as personal representa-
tive of Golik’s estate, and their children, as beneficiaries of
the estate. After trial, defendant received, for the first time,
certain documents that it had requested during discovery,
which provided detail regarding some of Golik’s other expo-
sures to asbestos. Based on one of the newly obtained docu-
ments, the trial court entered an order granting defendant’s
motion for a new trial on the grounds of misconduct, ORCP
64 B(2), and newly discovered evidence, ORCP 64 B(4). In
the same order, which we refer to as the new-trial order, the
court denied defendant’s motion for a new trial to the extent
that it was based on grounds other than the newly obtained
documents and also denied defendant’s motion for judgment
notwithstanding the verdict (JNOV), which was based on
defendant’s earlier motion for directed verdict. The court
then vacated the judgment in favor of plaintiff.
Plaintiff appeals the new-trial order and the order
vacating the judgment, contending that the court erred in
granting a new trial under both ORCP 64 B(2) and ORCP 64
B(4) and, consequently, also erred in vacating the judgment.
Defendant cross-appeals the new-trial order, the general
judgment, and an order in which the court denied defen-
dant’s post-trial motion to reduce the verdict, assigning
error to the court’s denial of its motion for JNOV and also
raising assignments of error regarding the trial court’s rul-
ings at trial and its denial of defendant’s motion to reduce
the verdict.2
1
For ease of reference, throughout this opinion, we refer to both Georgia
Pacific and Crown Zellerbach as “defendant.”
The jury also found Weyerhaueser Company, and Longview Fibre Paper and
Packaging, Inc., liable. Weyerhaeuser and Longview Fibre were parties on appeal
and filed briefs, but they are now no longer parties. The case originally involved
many additional defendants, but, at this point, the only remaining defendant,
respondent on appeal, is Georgia Pacific.
2
On appeal, defendant moved for a summary determination of the appeal-
ability of the court’s order granting its motions for new trial and denying its
Cite as 306 Or App 202 (2020) 205
We begin by considering plaintiff’s appeal. As
explained below, we conclude that the court did not err in
ordering a new trial based on misconduct, ORCP 64 B(2).
Because that is sufficient to support the court’s new-trial
order and the order vacating the judgment, we need not, and
do not, consider whether the court correctly ruled that a new
trial was justified under ORCP 64 B(4).
Turning to defendant’s cross-appeal, we reject
defendant’s contention that the trial court erred in deny-
ing its JNOV motion on either of plaintiff’s claims. As noted
above, 306 Or App at 204 n 2, we do not address defen-
dant’s assignments of error related to the general judgment
because that judgment correctly has been vacated and, con-
sequently, those assignments are moot. We affirm on appeal
and cross-appeal.
PLAINTIFF’S APPEAL
We begin by summarizing the evidence presented
at trial and the procedural history necessary to evaluate
the court’s ruling on the new trial motion. Further below,
JNOV motions. The Appellate Commissioner initially determined that defendant
could not challenge the denial of its JNOV motions in a cross-appeal (as opposed
to a cross-assignment of error). On reconsideration, however, the commissioner
determined that defendant could cross-appeal on that ground.
We agree that the new-trial order was appealable. ORS 19.205(3) (“An order
that is made in the action after a general judgment is entered and that affects
a substantial right, including an order granting a new trial, may be appealed
in the same manner as provided in this chapter for judgments.”); ORS 19.245(1)
(with exceptions not applicable here, “any party to a judgment may appeal from
the judgment”). However, because, as explained in the text, we reject plaintiff’s
arguments on appeal and conclude that the trial court properly ordered a new
trial and vacated the general judgment, the general judgment has no effect.
Consequently, defendant’s assignments of error based on the general judgment
are moot because our decision would have “no practical effect on the rights of the
parties.” State v. Walraven, 282 Or App 649, 655, 385 P3d 1178 (2016) (dismissing
a direct criminal appeal as moot after the judgment on appeal was vacated in a
post-conviction proceeding); see also DeWolf v. Mt. Hood Ski Bowl, LLC, 284 Or
App 435, 453, 392 P3d 759, rev den, 361 Or 885 (2017) (affirming a new-trial order
and, consequently, declining to address assignments of error to evidentiary and
instructional rulings made at trial). Accordingly, we do not address defendant’s
assignments of error based on the general judgment. For the same reason, we do
not consider defendant’s assignments of error to the court’s denial of its motion
to reduce the verdict: In light of the court’s entry of the new-trial order, there is
presently no verdict to be reduced.
We address in the text the separate question of whether defendant’s assign-
ments of error based on the new-trial order are reviewable. 306 Or App at 223-25.
206 Golik v. CBS Corp.
we provide additional facts as they become necessary for our
analysis of other issues.
At trial, the parties agreed that Golik died from
mesothelioma caused by exposure to asbestos. Plaintiff
presented evidence that Golik had worked as an insula-
tor helper at defendant’s mill for a few weeks during 1965.
Golik was not directly employed by the mill; rather, he
was an employee of Armstrong Contracting and Supply
Corporation (AC&S), which applied asbestos insulation at
the mill during that time. Plaintiff’s expert, Dr. Brodkin,
testified that Golik’s work as an insulator helper at the mill
would have exposed him to “very intense levels” of airborne
asbestos fibers for the duration of his work at the mill and
that the type of insulation that he was applying—insulation
for high-temperature applications—would involve exposure
to amphibole fibers, which are “the most dangerous” type of
asbestos.
Plaintiff presented evidence that defendant knew
or should have known that the insulating work that AC&S
and its workers did would necessarily create large amounts
of airborne asbestos on defendant’s premises and knew or
should have known that asbestos was dangerous to human
health, but that it did nothing to protect Golik from the
danger. Brodkin opined that, because mesothelioma is a
dose-response disease—the risk of developing it increases
with each increment of exposure to asbestos—Golik’s expo-
sure to asbestos at defendant’s mill was a substantial con-
tributing factor in causing his death.
The court determined that Washington law governed
plaintiff’s claims. As relevant here, plaintiff alleged two
claims: First, she alleged that, pursuant to the Restatement
(Second) of Torts sections 343 and 343A, which Washington
courts have adopted, defendant owed Golik a duty of care
as a landowner, because Golik was a business invitee on its
premises. Second, she alleged a negligence claim. On that
claim, she raised alternative theories as to defendant’s duty
to Golik: First, she contended that defendant owed Golik
a duty of care because it retained control over the work he
performed, even though he was an employee of AC&S rather
than an employee of defendant. Second, plaintiff contended
Cite as 306 Or App 202 (2020) 207
that defendant owed Golik a statutory duty of care under
former RCW 49.16.030 (1967), repealed by 1973 Wash Laws,
ch 80, § 28, which, she argued, required an employer to pro-
vide a safe place of work for anyone, including independent
contractors, who worked on the employer’s premises.
Before the jury, defendant argued against liability
in several ways. First, it questioned the evidence that Golik
had actually worked at the mill. Second, it contended that
it owed no duty to Golik because he was not its employee
and, it argued, it had not retained sufficient control over his
work or the work of AC&S to justify imposition of liability
on any of plaintiff’s legal theories. Third, it contended that
any exposure at its mill was not a substantial contributing
factor in causing Golik’s illness because it was insignificant
compared to Golik’s other exposures to asbestos throughout
his 20-year career.
That third strategy—a focus on Golik’s other expo-
sures to asbestos throughout his career—is the relevant
one for our review of the new-trial order. Because Golik
died before the litigation began, defendant could not ques-
tion him about his exposures to asbestos. To show other
exposures, defendant introduced Golik’s medical records,
in which he had reported, without much detail, exposure
to asbestos from installing insulation; from his work in
the military; while he was working in shipyards, both as
an electrician and while he worked dismantling ships; and
while he was in the merchant marine. It also introduced
his social security records, which showed his employers over
the course of his career but did not identify any exposure
to asbestos. Finally, over plaintiff’s vigorous objections, it
introduced official records of Golik’s work in the merchant
marine.3 Those records stated the name of each ship that
Golik worked on, the dates of his employment, and his job
title; they did not document any exposure to asbestos.
Golik’s other exposures to asbestos were explained
in more detail in documents that he and plaintiff had
3
Plaintiff argued that defendant had not presented any evidence about what
work Golik actually did in the merchant marine that would allow the jury to infer
from the information in the records that he had been exposed to asbestos or that
any exposure had increased his risk of mesothelioma.
208 Golik v. CBS Corp.
submitted in support of numerous claims they made to var-
ious asbestos bankruptcy trusts. To make a claim to an
asbestos bankruptcy trust, the claimant generally submits
a trust-specific claim form and also submits documentation
of the facts supporting the claim. The supporting documents
often contain more detailed information than the claim form
alone.
During discovery, one of the defendants requested
the claim forms, supporting documents, and any informa-
tion that Golik and plaintiff had submitted to the bank-
ruptcy trusts. Plaintiff produced the claim forms that were
submitted to the trusts. She also produced what the par-
ties referred to as the comprehensive work-history affidavit,
which had been submitted to some of the trusts in support
of the claims. In that work-history affidavit, Golik summa-
rized his asbestos-related work history and detailed several
of his exposures to asbestos. In the work-history affidavit,
in addition to attesting to many other exposures, Golik
stated that he had worked, and been exposed to asbestos,
on various defendants’ premises, including at defendant’s
mill.
Regarding Golik’s work in the merchant marine,
the work-history affidavit stated the following:
“8. I was a Merchant Marine from 1968 to 1969. I
worked as a wiper in the engine room of three ships. I was
aboard the Santa Victoria for 9 months, the SS Philippine
Bear for 5 months, and I was aboard a WWII-era ship which
transported ammunition from San Francisco to Vietnam
for 4 months.
“9. During my career as a Merchant Marine I worked
on ships and in various shipyards as part of my duties.
I worked at, but not limited to, the following shipyards
each for a period of more than one month: Alameda Naval
Shipyard, Alameda, CA and Mare Island Naval Shipyard
(Hunter’s Point), San Francisco, CA.
“* * * * *
“13. During my total working career as an Insulator
Helper, Marine Electrician Helper, Merchant Marine and
Cite as 306 Or App 202 (2020) 209
Welder I installed, altered, repaired or otherwise worked
with, but not limited to the asbestos-containing products
described in Paragraphs 4 [(regarding his work as an insu-
lator helper)], 6 [(regarding his work as a marine electrician
helper)], 10 [(regarding his work as a welder in Vancouver,
Washington)], and 12 [(more regarding his work as a welder
in Vancouver, Washington)] above for a substantial part of
the workday for a total of at least five years altogether.”
Thus, the work-history affidavit is ambiguous with respect
to Golik’s work aboard ships in the merchant marine. He
states that he worked as an engine room wiper aboard three
ships and includes his work in the merchant marine in para-
graph 13, which provides a broad description of his exposure
to asbestos. However, the affidavit provides no specific infor-
mation about exposure to asbestos during his time aboard
ships. Instead, the affidavit suggests an inference that he
was exposed to asbestos in the merchant marine while he
worked “on ships at various shipyards.”
Numerous discussions on the record before and
during trial demonstrate that information about Golik’s
other exposures to asbestos was of great interest to all par-
ties. The most detailed information about Golik’s other expo-
sures that defendant had was in the work-history affidavit,
and defendant wanted to use it as evidence of those other
exposures. For her part, plaintiff very strongly desired to
use the work-history affidavit as evidence that Golik worked
at defendant’s premises and was exposed to asbestos there.
Plaintiff could not introduce the affidavit because, as to her,
it was hearsay.
As to defendant, the affidavit was not hearsay,
because it was a statement of a party opponent. OEC 801
(4)(b)(A). However, defendant ardently desired to avoid hav-
ing plaintiff use the affidavit as evidence that Golik was
exposed on its premises. The court indicated that, if defen-
dant introduced the affidavit to use parts of it as evidence of
Golik’s other exposures, then plaintiff would be allowed to
use the rest of the affidavit as evidence of Golik’s exposure
at defendant’s premises.
Because of the likelihood that plaintiff would be
able to use the affidavit to show exposure on defendant’s
210 Golik v. CBS Corp.
premises, defendant did not introduce the work-history affi-
davit.4 However, the absence of detailed information about
Golik’s other exposures to asbestos hampered its efforts to
argue that Golik’s other exposures rendered any exposure
at its mill insignificant.
In the absence of the work-history affidavit, the evi-
dence that was available lacked the level of detail necessary
for defendant to show that much of Golik’s other work—in
particular, his work aboard ships in the merchant marine—
exposed him to asbestos in any significant way. In response
to cross-examination questions from Longview Fibre’s
counsel, plaintiff’s expert, Brodkin, testified that Golik’s
“sporadic” work in shipyards for six months was an iden-
tified exposure that would have been a substantial factor
in causing his mesothelioma. The same was true regarding
three months of work that Golik did on ships in shipyards—
not aboard ships at sea—while he was in the merchant
marine. However, with respect to Golik’s exposure while he
was aboard ships at sea in the merchant marine as a wiper,
plaintiff’s expert, Brodkin, testified that Golik’s “work as a
wiper per se was not a[n] identified exposure. Again, these
are merchant marines operating a vessel. He wouldn’t
have disrupted insulation during operations of a vessel.”
Defendant had no contradictory information.
Likewise, the testimony of defendant’s expert,
Robert Adams, about Golik’s alternative exposures was
limited by a lack of detail about those other exposures.
Regarding Golik’s potential exposure as a welder helper
and later a welder at shipyards in the 1960s, Adams testi-
fied that he could have had some exposure, but the exposure
level varied dramatically “depending on the type of work
and where the work was being conducted,” which was infor-
mation that he did not have. Adams reiterated the uncer-
tainty when he was asked to opine on whether that expo-
sure increased Golik’s risk of mesothelioma: “The difficulty
4
Longview Fibre briefly elicited some of the alternative exposure informa-
tion from the affidavit on cross-examination of plaintiff’s expert, Brodkin. After
other defendants objected based on the court’s previous rulings and the risk of
plaintiff arguing that the defense had opened the door to the whole affidavit—
and after plaintiff’s counsel stated his intention to “go charging through the
door” on redirect—none of the defendants pursued that strategy further.
Cite as 306 Or App 202 (2020) 211
in this case is that, based on the information that I have, it’s
hard to know exactly whether those exposure levels were
high enough to represent an increased risk.”
The jury was not persuaded by any of defendant’s
arguments, and it returned a verdict for plaintiff on both of
her claims. On the negligence claim, the jury accepted both
of plaintiff’s theories as to why defendant owed Golik a duty
of care.
After trial, defendant requested a hearing at which
the court would decide whether plaintiff’s previous settle-
ments with the bankruptcy trusts had been reasonable.
Under Washington law, once the court made that determi-
nation, it would reduce the verdict by the amount of the pre-
vious settlements.
To prepare for that hearing, defendant sought addi-
tional information about those settlements, and it ultimately
asked the court to order plaintiff to allow it to request doc-
uments directly from the bankruptcy trusts. The court
agreed.
When defendant received the documents from the
bankruptcy trusts, it discovered that, during pretrial dis-
covery, plaintiff had not turned over to defendant all the
documents describing Golik’s other exposures to asbestos
that had been submitted to the trusts. Among the undis-
closed documents was an affidavit in which Golik described
his work in the merchant marine. In that affidavit, which
we refer to as the merchant marine affidavit, Golik first
repeated the description of his work as a wiper that appeared
in the work-history affidavit:
“I was a U.S. Merchant Marine from 1968 to 1969.
During this time period, I worked as a wiper in the engine
room of three ships. I was aboard the Santa Victoria for
9 months, the SS Philippine Bear for 5 months, and I was
aboard a WWII-era ship which transported ammunition
from San Francisco to Vietnam for 4 months.”
Then, unlike in the work-history affidavit, he proceeded to
describe in detail his exposure to asbestos as a wiper aboard
the Philippine Bear:
212 Golik v. CBS Corp.
“As a wiper aboard the SS Philippine Bear, my duties
included, but were not limited to, cleaning, operating,
repairing and maintaining engines, boilers, generators,
pumps, pipes, gaskets, and turbines. I was regularly exposed
on a daily basis to asbestos and asbestos-containing mate-
rials including, but not limited to pipe insulation, boilers,
pumps, gaskets, generators, and other refractory products
and breathed air containing particles of dust arising from
such materials.”
Moreover, unlike the work-history affidavit, the merchant
marine affidavit did not mention any of the defendants’
premises.5
After defendant received the documents, it moved
for a new trial under ORCP 64 B(2) and (4). As relevant here,
it argued that plaintiff’s failure to turn over the documents,
including the merchant marine affidavit, was misconduct
by the prevailing party, under ORCP 64 B(2), that mate-
rially affected defendant’s substantial rights. As explained
in detail below, the court ultimately agreed. Based on that
ruling and the court’s additional conclusion that the newly
discovered evidence justified a new trial under ORCP 64
B(4), the court ordered a new trial and vacated the general
judgment.
Plaintiff appeals. Because it is dispositive, we con-
sider only the correctness of the court’s ruling under ORCP
64 B(2). That rule provides as follows:
“A former judgment may be set aside and a new trial
granted in an action where there has been a trial by jury on
the motion of the party aggrieved for any of the following
causes materially affecting the substantial rights of such
party:
“* * * * *
“B(2) Misconduct of the jury or prevailing party.”
Plaintiff contends that “misconduct,” as used in that
provision, requires “something more than mere inadvertence
5
The newly obtained documents also included several other affidavits that
contained, essentially, other excerpts from the work-history affidavit. All the
other affidavits did mention exposure on defendant’s premises. Before the trial
court, defendant argued that those affidavits and other newly obtained docu-
ments also justified a new trial. The trial court rejected those arguments, and we
do not consider them.
Cite as 306 Or App 202 (2020) 213
or simple error.” She argues that, here, the trial court found
that the failure to produce the merchant marine affidavit
and other documents was mere inadvertence or simple error
and, thus, the court erred in concluding that she had engaged
in misconduct. Alternatively, she suggests that, even if the
trial court found that the failure to produce the documents
was more than mere inadvertence or simple error, it erred
because it had to apply a presumption of misconduct to reach
that determination. Finally, she argues that, even if there
was misconduct, it did not “materially affect[ ] the substan-
tial rights of” defendant. ORCP 64 B.
“The trial court is the finder of fact at a hearing on
a motion for a new trial.” DeWolf v. Mt. Hood Ski Bowl, LLC,
284 Or App 435, 447, 392 P3d 759, rev den, 361 Or 885 (2017)
(internal quotation marks omitted). Accordingly, we defer to
the court’s explicit and implicit findings of fact if they are
supported by evidence in the record. Id.“When the trial court’s order of a new trial is
based on an interpretation of the law, we review that order
for errors of law. If the trial court made no predicate legal
error, then we review its decision for an abuse of discretion.”
Id. (internal quotation marks and citation omitted). “With
regard to whether the ground for a new trial involved con-
duct or evidence that materially affected the moving party’s
substantial rights, we will usually defer to a trial court’s
determinations of prejudicial effect, reviewing for an abuse
of discretion.” Id.; cf. Gragg v. Hutchinson, 217 Or App 342,
347, 176 P3d 407 (2007), rev den, 344 Or 401 (2008) (“Because
the trial court is usually in a better position to evaluate the
circumstances of each case and the prejudicial effect, if any,
of any claimed irregularity, we defer to the trial court’s con-
clusions regarding prejudice.” (Internal quotation marks
omitted.)).6
6
In light of the Supreme Court’s explanation that “discretion” refers to “the
authority of a trial court to choose among several legally correct outcomes,” State
v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000), our standard of review of the
court’s determination of prejudicial effect of misconduct has three parts: First,
we review the trial court’s implicit and explicit factual findings for any evidence.
DeWolf, 284 Or App at 447. Second, we review for legal error the court’s inter-
pretation and application of the statutory text, that is, whether the misconduct
identified by the court qualifies as misconduct “materially affecting the substan-
tial rights” of the party. ORCP 64 B; see also, e.g., DeWolf, 284 Or App at 447 (we
214 Golik v. CBS Corp.
We begin by considering whether the trial court
erred in determining that the failure to produce the doc-
uments supporting the bankruptcy trust claims was “mis-
conduct.” ORCP 64 B(2). As noted above, plaintiff first
argues that the court found that her failure to produce the
merchant marine affidavit was inadvertent. She contends
that inadvertent failure to produce a document cannot be
misconduct.
To evaluate that argument, we must consider the
court’s ruling and its factual findings. As we will explain,
we disagree with plaintiff’s first premise: In our view, the
court found that plaintiff’s local counsel deliberately, rather
than inadvertently, failed to produce the merchant marine
affidavit.
To explain that conclusion, we recount the proceed-
ings below at some length. As noted above, in the new-trial
motion, defendant argued that plaintiff’s failure to turn
over the documents, including the merchant marine affi-
davit, was misconduct by the prevailing party that mate-
rially affected defendant’s substantial rights. In its written
argument, defendant contended that a failure to produce
discovery was misconduct within the meaning of ORCP
64 B(2) regardless of whether it was done accidentally or
intentionally.
Plaintiff conceded that the documents were respon-
sive to discovery requests and should have been produced.
Plaintiff’s lead counsel, who were from an out-of-state law
firm, asserted that the failure to produce the documents
was a mistake based on a miscommunication between the
out-of-state firm and plaintiff’s local counsel:
review interpretation and application of the law for errors of law). Finally, “[o]nly
if we determine that application of the correct legal principles leads to more than
one correct outcome do we continue to review whether the trial court abused
its discretion in choosing an outcome.” Rogers, 330 Or at 312; see also Gross v.
Hacker, 168 Or App 529, 531 n 1, 4 P3d 1281 (2000), rev den, 332 Or 239 (2001)
(noting that the court’s explanation of the concept of discretion in Rogers applies
to our review of decisions based on ORCP 64 B).
Here, plaintiff’s challenges address only the first and second of those steps—
she disagrees that the outcome that the court reached was legally correct rather
than challenging any choice by the court between two legally correct alterna-
tives. Accordingly, we do not address the third issue.
Cite as 306 Or App 202 (2020) 215
“Plaintiff does not dispute, and has never disputed, that
these additional supporting documents are responsive to
various requests for production and should have been pro-
duced. But due to a miscommunication between Plaintiff’s
law firms—Waters & Kraus [plaintiff’s lead counsel] and
the Law Office of Jeffrey S. Mutnick [plaintiff’s local
counsel]—they regrettably were not provided to counsel
preparing the discovery responses. It was not until the
trusts started sending documents directly [to defendant,
after trial,] that Waters & Kraus first became aware some
documentation had not been produced during discovery.
Had Waters & Kraus been in possession of these docu-
ments previously, it would have produced them.”
Plaintiff contended that an innocent failure to provide dis-
covery was not misconduct.
At the hearing, the court focused on the meaning
of “misconduct” in ORCP 64 B(2). Plaintiff’s lead counsel
described in more detail how the failure to produce the doc-
uments came about:
“When we got the discovery request asking for the bank-
ruptcy documents, we sent an e-mail to Mr. Mutnick’s office
saying we have this discovery request, please send us all
the claim forms. Their office read the request very literally
to be just the claim forms, not any of the supporting doc-
umentation that had been submitted along with the claim
forms. We didn’t know the other supporting documentation
existed. They sent us the claim forms, we thought that was
it and we voluntarily produced them in response to the dis-
covery [request]. That’s really what happened.”
In response, defense counsel noted that plaintiff’s expla-
nation of the failure to produce the documents was not
complete:
“Even if you wanted to read the discovery request that
[plaintiff’s lead counsel] noted literally [as including only
the claim forms, not any supporting documents], we sub-
mitted multiple other discovery requests that asked for
any supporting documentation that was submitted to the
trust[s] in addition to the claim forms.
“I don’t know if those requests were sent to Mr. Mutnick.
I don’t know why Mr. Mutnick would not have submitted
the supporting documentation to plaintiff’s counsel.”
216 Golik v. CBS Corp.
The defense also argued that, in the absence of any
information from plaintiff’s local counsel, the court should
infer that local counsel’s failure to produce the documents
was not inadvertent:
“I think it’s very telling that Mr. Mutnick did not show up
today. He did not show up a few months ago when we were
here and this issue came up. There’s not an affidavit from
Mr. Mutnick that explains this. There’s no documents that
have been submitted that would explain how this innocent
mistake happened.”
Later in the hearing, defense counsel summarized what he
understood to be the court’s position, which aligned with
defendants’ view that the failure to produce the documents
was not inadvertent: “the silence [from local counsel] is
deafening.”
The court expressly credited plaintiff’s lead coun-
sel’s explanation of their firm’s role in the failure to provide
discovery. The court held that that innocent mistake by lead
counsel was not misconduct and, thus, held that lead coun-
sel had not engaged in misconduct. However, as explained
below, the court found that plaintiff’s local counsel had
deliberately withheld discovery.
During his argument, plaintiff’s counsel argued
that something more than inadvertence was required before
the court could find misconduct and, implicitly, that direct
evidence from plaintiff’s local counsel was necessary to
prove it:
“The time for them to submit evidence for the motions
is closed a while ago and they have not submitted any evi-
dence of—of misconduct. The Court recognized that, and
as we explained in our brief, there has to be something
more than a failure to just do something you’re supposed
to do. That’s to use—to use their terms. Some evidence of
negligence, malfeasance, misfeasance, even if it’s not inten-
tional misconduct, there has to be some additional if you
want to call it mens rea, a scienter or what have you, it has
to be something more. The very term of ‘misconduct’ itself
implies that.”
The court accepted plaintiff’s view of the meaning of mis-
conduct, but disagreed that direct evidence was necessary
Cite as 306 Or App 202 (2020) 217
to prove local counsel’s reason for withholding discovery.
Instead, the court inferred from the record that local coun-
sel’s failure to provide discovery was not inadvertent. The
court responded:
“So the evidence I have before me is defendants made
the specific request for all documents associated with sub-
mitting claims to all of the bankruptcy trusts and settle-
ment trusts. They received some of the documents, but they
didn’t receive one particular—and the one that concerns
me the most is an affidavit by the decedent himself talking
about very significant asbestos exposure in locations other
than defendants’ locations [that is, the merchant marine
affidavit]. So that—I mean, doesn’t the fact that some of
the documents were—or couldn’t one reasonably infer
from that, absent an innocent explanation, that there was
misconduct?
“[PLAINTIFF’S OUT-OF-STATE COUNSEL]: No.
“THE COURT: That it was picking and choosing and
Mutnick chose not to turn it over?”
The court did not explicitly state its factual find-
ings. However, we are persuaded that the court ultimately
answered the question it had posed in the affirmative, decid-
ing that, given the information it had, it could, and would,
infer that local counsel “chose not to turn it over,” that is,
deliberately chose not to provide the merchant marine
affidavit.
In closing, the court contrasted the innocent mis-
take by plaintiff’s lead counsel, which it concluded was not
misconduct, with local counsel’s failure to turn over the
discovery:
“* * * I have no explanation for why discovery was held by
Mr. Mutnick. And again, this is no disparagement of the
[out-of-state] attorneys who came to trial and have done
their best to remedy the situation, but an affidavit from
the decedent that doesn’t mention the other defendants or
the premises-owner defendants in the affidavit that gives
detail or significant detail about significant exposures to
amphibole asbestos, that did—was material and did affect
the substantial rights of the parties. And I can only con-
strue, based on the evidence I have, that there was—it
218 Golik v. CBS Corp.
was a discovery violation and that it rises to the level of
misconduct.”
After stating both of its rulings (under ORCP 64
B(2) and ORCP 64 B(4)), the court noted that there was no
time to write an opinion on the issue, because the deadline
for deciding the new-trial motion was too soon. The court
stated that it was adopting the reasoning from defendant’s
brief. As noted above, in the briefing, defendant had argued
that even accidental failure to provide discovery was mis-
conduct under ORCP 64 B(2). However, even if the court
intended to adopt that theory, we conclude from the court’s
much more specific remarks earlier in the hearing that it
also found that local counsel deliberately withheld the mer-
chant marine affidavit. As set out above, in making its rul-
ing, the court noted local counsel’s failure to turn over the
documents to plaintiff’s lead counsel and then went to great
lengths to make clear that it was not finding misconduct on
the part of plaintiff’s lead counsel. It then found that there
had been a discovery violation and “that it rises to the level
of misconduct.” That is, misconduct requires more than a
discovery violation, and the situation here involved more
than a discovery violation.
Thus, the trial court found that local counsel delib-
erately withheld discovery that he knew was responsive to
defendant’s requests for production. Accordingly, we reject
plaintiff’s contention that the court found that the discovery
violation was the result of an innocent mistake.
Plaintiff does not dispute that deliberate withhold-
ing of materials responsive to a request for production is
misconduct for purposes of ORCP 64 B(2). Cf. DeWolf, 284
Or App at 452 (holding that a party engaged in misconduct
by failing to provide discovery pursuant to a court order
based on an unreasonable interpretation of the document
at issue). Thus, it remains only for us to address plaintiff’s
suggestion that the court improperly applied a presumption
of misconduct. As we understand that argument, plaintiff
contends that defendant could not meet its burden of prov-
ing that misconduct had taken place in the absence of an
explanation from plaintiff’s local counsel about why he did
not produce the documents during discovery. We disagree.
Cite as 306 Or App 202 (2020) 219
As the court recited, the facts before it showed that,
despite several clear discovery requests that required dis-
closure of all of the documents and information submitted
to the bankruptcy trusts, plaintiff’s local counsel failed to
produce some documents that were submitted to the trusts,
including the merchant marine affidavit, which was a sig-
nificant and valuable piece of evidence for the defense. Then,
although it should have been clear that local counsel’s rea-
son for failing to produce the documents was important,
local counsel did not appear or otherwise make any effort to
explain his actions.
In finding that local counsel’s failure to produce the
documents was deliberate, the court did not apply a presump-
tion; rather, it made an inference from the facts. The court
could infer from the circumstances—the facts about the
requests for production, out-of-state counsel’s request for the
documents, and the significance of one of the omitted items—
that local counsel would have known that they needed to be
produced, but nevertheless did not produce them.7 Further,
it could infer from his absence and the absence of an affi-
davit from him that he was unwilling to defend his failure
to produce the documents. Cf. Cler v. Providence Health
System, 349 Or 481, 489, 245 P3d 642 (2010) (“In general
terms, [the missing witness] inference provides that, ‘[w]hen
it would be natural under the circumstances for a party to
call a particular witness * * * and the party fails to do so,
tradition has allowed the adversary to use this failure as
the basis for invoking an adverse inference.’ 2 McCormick
on Evidence § 264, at 220 (6th ed. 2006).”).
It is true that, as plaintiff argues, there could be
other explanations for local counsel’s failure to produce
the documents. However, in this instance, deciding which
inference to make from the facts was within the province of
the factfinder—the trial court—and we cannot disturb the
court’s findings on appeal. DeWolf, 284 Or App at 447. In
sum, the court found that local counsel deliberately withheld
discovery, and the record supports that finding. Thus, the
court did not err in determining that there was misconduct.
7
It is undisputed that plaintiff’s local counsel knew of the existence of the
supporting documents, as he submitted bankruptcy trust claims on behalf of
Golik and plaintiff.
220 Golik v. CBS Corp.
Next, we consider whether the misconduct materi-
ally affected defendant’s substantial rights. In the briefing,
plaintiff addresses prejudice under ORCP 64 B(2)—allowing
for a new trial based on misconduct “materially affecting
the substantial rights” of the moving party—only as part of
her argument that the documents do not merit a new trial
on the ground of newly discovered evidence under ORCP
64 B(4). However, the two standards are different. To order
a new trial under ORCP 64 B(4), a court must determine,
among other things, that the newly discovered evidence
“will probably change the result if a new trial is granted.”
State v. Arnold, 320 Or 111, 120, 879 P2d 1272 (1994). The
standard under ORCP 64 B(2), however, is less demanding.
ORCP 64 B(2) requires only that the misconduct “materi-
ally affect[ ] the substantial rights of” the moving party, and
neither we nor the Supreme Court have suggested that any
greater showing than that must be made. See, e.g., DeWolf,
284 Or App at 453 (holding that a discovery violation mate-
rially affected the plaintiff’s rights because it deprived the
plaintiff of the ability to fully rebut the defendant’s argu-
ment at trial).
As described above, one of defendant’s central trial
strategies was to argue that any exposure to asbestos that
Golik had at its mill was insignificant compared to his other
exposures to asbestos over the course of his career. As noted
above, the evidence that plaintiff presented indicated that
Golik had been exposed to asbestos on defendant’s prem-
ises for less than one month. Defendant wanted to show that
Golik had had other exposures lasting much longer and,
thus, that the exposures at defendant’s mill was insignifi-
cant by comparison. The vehemence of plaintiff’s objections
to defendant’s attempts to provide the jury with informa-
tion about other exposures shows that, at least in plaintiff’s
view, that strategy had some merit.
As explained above, however, that strategy was
hampered by the lack of detailed evidence about Golik’s
other exposures. Although defendant had some informa-
tion about other exposures in the form of the comprehen-
sive work-history affidavit, it did not offer that affidavit
because it cut against its theory that Golik did not work at
its mill, and plaintiff intended to emphasize that aspect of
Cite as 306 Or App 202 (2020) 221
the affidavit if it came in. Longview Fibre’s attempt to have
the same information admitted through cross-examination
of plaintiff’s expert was limited because of concerns about
the potential for opening the door to the rest of the affidavit.
Defendant introduced Golik’s medical records and merchant
marine records, but those records did not provide the kind of
detail necessary for an expert to opine that the other expo-
sures were significant enough that they would have been a
cause of Golik’s mesothelioma.
In particular, the materials that defendant had at
trial provided no detailed information about Golik’s expo-
sure while he was a wiper aboard ships in the merchant
marine. As set out above, the work-history affidavit indi-
cated that some part of Golik’s work the merchant marine
involved exposure to asbestos, but it did not identify any
particular products or activities that would have exposed
Golik to asbestos while he was working as a wiper aboard
ships at sea; instead, it suggested that his exposure was lim-
ited to the time when he worked on ships in shipyards. The
same was true of Golik’s medical records. Consistently with
that documentation, plaintiff’s expert testified at trial that
Golik’s work as a wiper aboard ships at sea would not have
exposed him to asbestos: His “work as a wiper per se was not
a[n] identified exposure. Again, these are merchant marines
operating a vessel. He wouldn’t have disrupted insulation
during operations of a vessel.”
But one of the documents that was withheld, the
merchant marine affidavit, did include detailed information
about one of Golik’s other exposures to asbestos. It contained
Golik’s testimony that he was exposed to asbestos on a daily
basis while he was working as a wiper aboard ships in the
merchant marine:
“As a wiper aboard the SS Philippine Bear, my duties
included, but were not limited to, cleaning, operating,
repairing and maintaining engines, boilers, generators,
pumps, pipes, gaskets, and turbines. I was regularly exposed
on a daily basis to asbestos and asbestos-containing mate-
rials including, but not limited to pipe insulation, boilers,
pumps, gaskets, generators, and other refractory products
and breathed air containing particles of dust arising from
such materials.”
222 Golik v. CBS Corp.
The trial court determined, and we agree, that,
from that description of Golik’s work on the Philippine Bear,
the jury would have been able to infer that Golik’s exposures
on the Philippine Bear were to amphibole asbestos and that
he had similar exposures on the other two ships on which
he was a wiper. Thus, if that affidavit had come into evi-
dence, the jury could have inferred that Golik was exposed
to the most dangerous kind of asbestos on a daily basis for a
total of 18 months—more than 18 times as long as the expo-
sures at defendant’s mill, and twice as long as his two other
identified exposures combined—while he worked as a wiper
aboard ships in the merchant marine.
As the trial court also noted, that affidavit did not
mention defendant’s premises, which strengthens the infer-
ence that defendant would have chosen to introduce it into
evidence; it would not have undermined defendant’s denial
that Golik had been exposed on its premises. Plaintiff con-
tends that that is immaterial because “the use of [the mer-
chant marine affidavit] at trial would have opened the door
to myriad documents placing Mr. Golik at defendants’ mills,
which is the very thing they fought so hard to avoid.”
Plaintiff contended before the trial court, and
appears to contend again on appeal, that admission of any
of the records from the bankruptcy trust claims would nec-
essarily have “opened the door” to admission of all of those
records. Before the trial court, plaintiff suggested that OEC
106, the rule of completeness, would require that, if any of
the trust documents were admitted, all of them would have
to be received in evidence.8 However, they do not renew that
contention on appeal, nor do they cite any other rule or prin-
ciple that would require admission of other trust documents
if the merchant marine affidavit were introduced. In the
absence of substantive argument on that point, we do not
8
OEC 106 provides as follows:
“When part of an act, declaration, conversation or writing is given in
evidence by one party, the whole on the same subject, where otherwise admis-
sible, may at that time be inquired into by the other; when a letter is read,
the answer may at that time be given; and when a detached act, declaration,
conversation or writing is given in evidence, any other act, declaration, con-
versation or writing which is necessary to make it understood may at that
time also be given in evidence.”
Cite as 306 Or App 202 (2020) 223
perceive any error in the trial court’s determination that
defendant could have introduced the merchant marine affi-
davit, which does not refer to any bankruptcy trust claims
or to defendant’s premises, without opening the door to
other bankruptcy trust records that did mention defendant’s
premises.
Considering the context of the whole case—
defendant’s strategic choices, the evidence that was avail-
able at trial, the significance of the merchant marine affi-
davit, and the likelihood that the jury would have been
persuaded—the trial court found that the absence of the
merchant marine affidavit was important and, consequently,
held that the misconduct materially affected defendant’s
substantial rights. We agree that the misconduct materi-
ally affected defendant’s substantial rights; it materially
impaired defendant’s ability to present its case to the jury.
There is some likelihood that the outcome would
have been different if defendant had been able to present
the merchant marine affidavit. Accordingly, the trial court
did not err in ordering a new trial under ORCP 64 B(2) and
vacating the judgment.
DEFENDANT’S CROSS-APPEAL
We turn to defendant’s challenges to the court’s
denial of its JNOV motion, beginning by considering the
reviewability of those assignments of error. Our review of
the denial of a JNOV motion based on the insufficiency of
the evidence is circumscribed in several ways. First, orders
that deny both new trial and JNOV motions are not appeal-
able. Building Structures, Inc. v. Young, 328 Or 100, 111, 968
P2d 1287 (1998) (order denying JNOV is not appealable);
Iron Horse Engineering v. Northwest Rubber, 193 Or App
402, 415, 89 P3d 1249 (2004) (order denying new trial and
JNOV is not “reviewable”). However, when the court grants
a motion for a new trial and denies a JNOV motion in the
same order, that order is appealable and the denial of the
JNOV motion is, as a general matter, reviewable. See ORS
19.420(2) (“Where in the trial court a motion for judgment
notwithstanding the verdict and a motion for a new trial
were made in the alternative, and an appeal is taken from
224 Golik v. CBS Corp.
a judgment notwithstanding the verdict or an order grant-
ing a new trial, the court to which the appeal is made may
consider the correctness of the ruling of the trial court on
either or both motions if such ruling is assigned as errone-
ous in the brief of any party affected by the appeal, without
the necessity of a cross-appeal.”); see also Hillman v. North.
Wasco Co. PUD, 213 Or 264, 301, 323 P2d 664 (1958), over-
ruled on other grounds by Maulding v. Clackamas County,
278 Or 359, 563 P2d 731 (1977) (under a previous, similar
version of the statute, “when an appeal is taken from an
order granting a new trial the right to cross-appeal from an
adverse decision on a motion for [JNOV] is also granted by
implication and * * * we are authorized to consider the mer-
its of that motion”).
Despite that general principle allowing review of the
denial of JNOV motions when a new trial has been granted,
other limitations still apply. We may review the denial of a
JNOV motion only if the party assigning it as error raised
the same issue in a motion for directed verdict at the close
of all of the evidence, as required by ORCP 63 A. Building
Structures, Inc., 328 Or at 111 (a directed verdict motion
made at the close of all of the evidence “is the necessary
predicate for entry of a judgment notwithstanding the ver-
dict under ORCP 63”). That limitation results in a further
narrowing of the circumstances under which we review the
denial of a JNOV motion because, if the party has made a
motion for directed verdict—as it is required to as a prereq-
uisite to obtaining review of the denial of the JNOV motion—
“the better practice is to eschew the circuitous approach and
to state the basic issue directly by assigning as error the
denial of the motion for a directed verdict.” Clarizo v. Spada
Distribution Co., 231 Or 516, 520, 373 P2d 689 (1962); see
also, e.g., Najjar v. Safeway Inc., 203 Or App 486, 489, 125
P3d 807 (2005) (noting that we did not need to consider the
denial of a JNOV motion because “[d]efendants’ arguments
on their assignment of error to the denial of their motion for
judgment notwithstanding the verdict are subsumed within
their assignment of error on the denial of their motion for
a directed verdict”). But see Brown v. Washington County,
163 Or App 362, 375, 987 P2d 1254 (1999), rev den, 331 Or
191 (2000) (evaluating the merits of both the defendant’s
Cite as 306 Or App 202 (2020) 225
directed verdict motion and its JNOV motion and conclud-
ing that the court correctly denied both of them for the same
reasons).
The present case is one of the few cases in which
all of the requirements for review of the denial of a JNOV
motion are met and in which we cannot review the denial
of the preceding directed-verdict motion rather than the
denial of the JNOV motion: The new trial order is appeal-
able because the court granted a new trial as well as denying
defendant’s JNOV motion. The issues raised in defendant’s
JNOV motion were properly raised in a motion for directed
verdict made at the close of all the evidence, as required by
ORCP 63 A. Finally, as explained above, 306 Or App at 204
n 2, defendant’s assignments of error based on the general
judgment—including its assignments of error to the denial
of its motion for directed verdict—are moot because the gen-
eral judgment properly has been vacated.9 Thus, defendant’s
assignment of error to the denial of the JNOV motion is
reviewable, and we must consider the merits of defendant’s
arguments.
On the rare occasion when we review the denial of
a JNOV motion, we apply the same standard of review that
we apply when the court has granted a JNOV:
“[W]e view the evidence in the light most favorable to the
party who prevailed before the jury—here, plaintiff—and
examine the record to ascertain whether it contains evi-
dence which supports the verdict. Our review of the record
is circumscribed by the case actually presented to the
jury through pleadings, evidence, and jury instructions.
We must [not disturb] the jury verdict unless we can say
affirmatively that there was no evidence to support it.”
9
By contrast, the assignment of error to the denial of the JNOV motion is not
moot because, if it is correct, it entitles defendant to more complete relief than
the new trial to which the trial court determined that defendant was entitled. In
other words, if we were to conclude that the trial court erred in denying the JNOV
motion on either of plaintiff’s claims, we would remand for entry of a judgment
in defendant’s favor on the claim or claims on which it was entitled to judgment
notwithstanding the verdict. See Hillman, 213 Or at 301 (noting that the court
would review the denial of the defendant’s JNOV motion in a case where the trial
court had granted a new trial and denied the defendant’s JNOV motion because
the “defendant could not appeal from the judgment for the plaintiff because it was
set aside” and the defendant would have been entitled to more complete relief—a
final judgment, not just a new trial—if the JNOV had been granted).
226 Golik v. CBS Corp.
Vukanovich v. Kine, 268 Or App 623, 633, 342 P3d 1075,
adh’d to as modified on recons, 271 Or App 133, 349 P3d 567
(2015) (internal quotation marks, brackets, and citations
omitted); see Hillman, 213 Or at 310-15 (reviewing denial of
JNOV motion for legal error and sufficiency of the evidence).
Defendant contends that the trial court erred in
failing to enter judgment notwithstanding the verdict on
each of plaintiff’s claims. Its arguments on each claim go
to whether it owed a duty to Golik, rather than any other
element of the claims. We begin with defendant’s challenge
to plaintiff’s premises liability claim.
In the premises liability claim, plaintiff alleged that
defendant owed Golik a duty of care as a landowner because
Golik was a business invitee on its premises. Defendant con-
tended that the cause of Golik’s injury was outside the scope
of its duty to him because plaintiff did not show that there
was a dangerous condition on defendant’s premises; defen-
dant argued that its premises was not in a dangerous con-
dition when it was turned over to Golik’s employer, AC&S,
because it is undisputed that AC&S’s work—and not any
work done directly by defendant’s employees—created the
airborne asbestos that injured Golik.
Plaintiff responded that defendant created a dan-
gerous condition on the premises by directing AC&S to
install asbestos insulation on its boiler because that instal-
lation necessarily created the airborne asbestos that caused
Golik’s mesothelioma. In denying defendant’s motions for
directed verdict and JNOV, the trial court agreed with
plaintiff that her premises liability theory turned on defen-
dant’s own negligence, not negligence of AC&S, and that
Washington law did not insulate defendant from liability for
its own negligence.
“Employees of independent contractors hired by
landowners are invitees on the landowners’ premises.”
Kamla v. Space Needle Corp., 147 Wash 2d 114, 125, 52
P3d 472, 477 (2002). The Washington Supreme Court has
adopted the Restatement (Second) of Torts, sections 343 and
343A (1965), to govern landowners’ duties to invitees. Those
sections provide as follows:
Cite as 306 Or App 202 (2020) 227
“A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if,
but only if, he (a) knows or by the exercise of reasonable
care would discover the condition, and should realize that
it involves an unreasonable risk of harm to such invitees,
and (b) should expect that they will not discover or realize
the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.”
Restatement § 343.
“ ‘A possessor of land is not liable to his [or her] invi-
tees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.’ ”
Iwai v. State, Employment Sec. Dept., 129 Wash 2d 84, 94,
915 P2d 1089, 1093 (1996) (quoting Restatement § 343A).
As relevant here, together, those two sections
impose liability to invitees for injuries from activities or
conditions on the land whose danger is known or obvious to
the invitees when, despite the fact that the danger is known
or obvious, the possessor should anticipate the harm.10 See,
e.g., Kamla, 147 Wash 2d at 126, 52 P3d at 478 (“Properly
framed, the question in this case is whether Space Needle
should have anticipated Kamla’s harm, despite the obvious
hazard posed by the moving elevators.”); Iwai, 129 Wash 2d
at 94, 915 P2d at 1093 (“Mrs. Iwai may have known about
the ice in the parking lot, but if Employment Security ‘c[ould]
and should [have] anticipate[d] that the dangerous condition
w[ould] cause physical harm to the invitee notwithstanding
its known or obvious danger,’ then section 343A may impose
liability.” (Quoting Restatement section 343A.)).
Defendant does not challenge the sufficiency of the
evidence to impose liability under those sections. Rather, as
noted above, it contends that, as a matter of law, AC&S’s
creation of airborne asbestos was not properly considered an
10
Here, the parties disputed the degree to which the danger from the air-
borne asbestos was known to Golik or obvious. For purposes of our analysis, we
assume that the danger was known or obvious.
228 Golik v. CBS Corp.
activity or condition on defendant’s land because AC&S, not
defendant, brought the asbestos onto the land.
In support of that position, it relies on Washington
case law holding that, generally, a premises owner is not
liable for injuries to the employees of a subcontractor as long
as the premises were safe when they were turned over to the
subcontractor. See, e.g., Epperly v. City of Seattle, 65 Wash
2d 777, 787, 399 P2d 591, 597 (1965) (“In the case at bar, the
city did not supervise the activities of the workmen, did not
furnish the appliance which failed and it did nothing affir-
matively to increase the risk. The premises were safe when
turned over to the contractor and knowledge concerning the
hazard which arose thereafter was as available to the con-
tractor as to the city.”); Hymas v. UAP Distribution, Inc., 167
Wash App 136, 162, 272 P3d 889, 901, rev den, 175 Wash
2d 1006, 284 P3d 742 (2012) (adhering to Golding v. United
Homes Corp., 6 Wash App 707, 495 P2d 1040 (1972), in which
the court had “reaffirmed the general rule stated in Epperly
that the owner of premises owes to the servant of the inde-
pendent contractor employed to perform work on his prem-
ises the duty to avoid endangering him by the owner’s own
negligence or affirmative act, but owes no duty to protect him
from the negligence of his own master” (emphasis added));
Golding, 6 Wash App at 712, 495 P2d at 1043-44 (where “the
defendant did not supervise the activities of the independent
contractor or his workmen and did nothing affirmatively
to increase the risk of harm inherent within the nature of
the work” and “the premises were safe when turned over to
the contractor,” the defendant owed no duty to the contrac-
tor’s employee). That common law rule is also reflected in
Restatement section 409, which provides, “Except as stated
in §§ 410-429, the employer of an independent contractor is
not liable for physical harm caused to another by an act or
omission of the contractor or his servants.” See, e.g., Hymas,
167 Wash App at 162, 272 P3d at 901 (recognizing that the
principle stated in section 409 is part of Washington law).
In Hymas, the court explained the relationship
between Restatement sections 343 and 343A and the gen-
eral rule of nonliability for acts of independent contractors,
which, as noted, is expressed in both Restatement section
409 and the Washington case law on which defendant relies.
Cite as 306 Or App 202 (2020) 229
In that case, the plaintiff was an employee of an excava-
tion and concrete contractor who was injured when he fell
into a trench that his employer had dug for the foundation
of a building. The defendant corporation was the landowner
and was overseeing the construction of the building. Id. at
142-43, 272 P3d at 892. On appeal of a summary judgment
for the defendant, the plaintiff argued, among other things,
that the defendant owed him a duty on a premises liability
theory. Id. at 159, 272 P3d at 900.
The plaintiff acknowledged that the Washington
Supreme Court had held that “[a] landowner’s responsibility
for the condition of the land does not make the landowner
liable for the negligent acts or omissions of an independent
contractor.” Id. at 161, 272 P3d at 901 (citing Lamborn v.
Phillips Pac. Chem. Co., 89 Wash 2d 701, 708, 575 P2d 215,
220 (1978)). However, he argued that the court had abro-
gated that rule when it adopted Restatement sections 343
and 343A to govern the duties of premises owners to licens-
ees. Id. at 162, 272 P3d at 901.
The Hymas court disagreed. It explained that the
Washington case law reflects Restatement section 409, and
that principle limits the court’s analysis of landowners’
duties to invitees under sections 343 and 343A:
“[T]he principles of common law reflected in sections
343 and 343A do not displace common law limitations
on a principal’s liability to an independent contractor’s
employees, which are themselves recognized at, e.g.,
Restatement §§ 409, 413 and 414, as well as in the cases
relied upon by [the defendant]. Both sets of principles are
recognized in Washington cases and each operates in its
proper sphere.”
Id., 272 P3d at 901. After explaining how sections 343 and
343A leave room for application of the principle of nonliabil-
ity for acts of independent contractors, the court concluded
that, “[w]here the landowner has discharged its obligation
to prepare its land and warn or otherwise protect an inde-
pendent contractor-invitee, it is other principles of common
law, reflected in the Restatement at sections 409-429, that
address the relative responsibilities of the owner and the
independent contractor for the independent contractor’s
230 Golik v. CBS Corp.
activities.” Id. at 163, 272 P3d at 902. In Hymas, the court
concluded that the general rule of nonliability applied and
no exceptions applied. Thus, it affirmed the trial court’s
grant of summary judgment. Id. at 164-65, 272 P3d at 903.
Hymas establishes that defendant is correct that
the general rule of nonliability is applicable here—unless
one of the exceptions to that rule applies. However, as
explained below, both Washington courts and section 410 of
the Restatement—which is one of those “other principles of
common law, reflected in the Restatement at sections 409-
429,” identified in Hymas—recognize an exception for situa-
tions in which the plaintiff’s theory of liability rests on the
negligence of the defendant itself, not just vicarious liability
for the negligence of the independent contractor. Id. at 163,
272 P3d at 902.
Washington courts have made clear that the gen-
eral rule of nonliability for acts of independent contractors
does not excuse a premises owner from liability for its own
negligence. See, e.g., Tauscher v. Puget Sound Power & Light
Co., 96 Wash 2d 274, 281, 635 P2d 426, 430 (1981) (“An owner
who employs an independent contractor is already liable to
all third persons, including employees of the independent
contractor, for his or her own negligence[.]”); Winfrey v.
Rocket Research Co., 58 Wash App 722, 725, 794 P2d 1300,
1302, rev den, 115 Wash 2d 1030 (1990) (rejecting an employ-
er’s argument that it owed no duty to the employee of an
independent contractor; the employer “fails to acknowledge
that completely apart from the question of vicarious liabil-
ity, is the duty to prevent injuries to invitees on a premises
caused by the owner’s own negligence”); see also Hennig v.
Crosby Group, Inc., 116 Wash 2d 131, 134, 802 P2d 790, 792
(1991) (“Because the [landowner] did not actively supervise
[the contractor’s] employees, did not furnish the shackle,
had no superior knowledge that it might be defective, and
otherwise did nothing to affirmatively increase the risk, the
trial court properly dismissed the [landowner].” (Emphasis
added.)).
Consistently with that case law, section 410 of the
Restatement establishes an exception from the general rule
of nonliability where the harm arises from the premises
Cite as 306 Or App 202 (2020) 231
owner’s negligent direction of the contractor. Section 410
provides as follows:
“The employer of an independent contractor is subject
to the same liability for physical harm caused by an act or
omission committed by the contractor pursuant to orders or
directions negligently given by the employer, as though the
act or omission were that of the employer himself.”
Section 410 is one of the sections of the Restatement that
Hymas identified as applying in conjunction with sections
343 and 343A to determine the liability of landowners. 167
Wash App at 163, 272 P3d at 902; see also Restatement § 410
comment b (noting that the section applies in conjunction
with section 343).11
Although no Washington court has expressly
applied Restatement section 410, that section is among
those that the court in Hymas identified as governing “the
relative responsibilities of the owner and the independent
contractor for the independent contractor’s activities.” 167
Wash App at 163, 272 P3d at 902. It is also consistent with
Washington courts’ statements that a landowner remains
liable to the employees of independent contractors for its
own negligence. See Tauscher, 96 Wash 2d at 281, 635 P2d
at 430; Winfrey, 58 Wash App at 725, 794 P2d at 1302; see
also Ventoza v. Anderson, 14 Wash App 882, 895, 545 P2d
1219, 1229, rev den, 87 Wash 2d 1007 (1976) (noting that
one of the exceptions to the general rule of nonliability
11
Another exception to the general rule of nonliability exists for injury
resulting from inherently dangerous activities by the contractor. Tauscher, 96
Wash 2d at 280-81, 635 P2d at 429-30 (noting that “support for the exception [for
inherently dangerous activities] to the rule on nonliability is expressed in sec-
tions 413, 414, 416 and 427 of the Restatement (Second) of Torts” (footnotes omit-
ted)). However, the inherently-dangerous-activities exception is limited to inju-
ries to third parties, as opposed to employees of the contractor. Id. at 279, 635 P2d
at 429 (“[T]he employer’s liability does not extend to employees of independent
contractors merely because of the presence of inherently dangerous activities.”).
The inherently-dangerous-activities exception is different from the exception
set out in Restatement section 410 because the former exception imposes vicari-
ous liability on the employer for the contractor’s negligence, whereas section 410
imposes liability for the employer’s own negligence. See Restatement § 410 (requir-
ing acts of the contractor to be “pursuant to orders or directions negligently given
by the employer” (emphasis added)); accord Tauscher, 96 Wash 2d at 281, 635 P2d
at 430 (“An owner who employs an independent contractor is already liable to all
third persons, including employees of the independent contractor, for his or her
own negligence[.]”).
232 Golik v. CBS Corp.
that was specified by a jury instruction “impose[s] liability
upon an employer for negligent direction of the independent
contractor (Restatement (Second) of Torts § 410 (1965))”).
Accordingly, we conclude that Restatement section 410 accu-
rately represents Washington law.12
Here, as the trial court recognized, plaintiff’s prem-
ises liability theory was that defendant was liable for its own
negligence, not negligence of AC&S: Plaintiff contended that
defendant was negligent in directing AC&S to install asbes-
tos insulation on the boiler. Plaintiff presented evidence
that AC&S was engaged to cover a boiler with asbestos insu-
lation; that defendant knew that insulating with that par-
ticular asbestos insulation would unavoidably create large
amounts of airborne asbestos; and that defendant knew or
should have anticipated that Golik would be injured by the
airborne asbestos. She contended that Golik’s mesothelioma
was the direct result of defendant’s negligent act of directing
AC&S to install large amounts of asbestos insulation.
As noted above, defendant asserts that the airborne
asbestos cannot be considered a dangerous condition on
their premises because the premises were safe when AC&S
started work. As we have explained, however, Restatement
sections 343 and 343A work together with Restatement sec-
tions 409 and 410 to establish that a premises owner can
12
It is possible that Washington courts might hold that the principle recog-
nized by section 410, like the inherently-dangerous-work exception, is limited to
liability for harm to third parties, as opposed to harm to the employees of the
independent contractor. However, we note that the text of section 410 does not
limit its application in that way, in contrast to other sections. See Restatement
§ 411 (limiting employer’s liability for negligent selection of contractors to harm
to “third persons”). Moreover, the principle recognized in section 410 is a close
relative of the retained-control theory that Washington courts have embraced.
See Gass v. Virgin Islands Tel. Corp., 311 F3d 237, 241 n 3 (3d Cir 2002) (“[O]ur
analysis in this section applies to both sections 410 and 414. With respect to the
issue presented in this case, there is no need to distinguish between the sections
because they differ only in the degree of control exercised by the employer of the
independent contractor. Under section 410, the employer must be alleged to have
given orders or directions negligently, and under section 414, the employer must
be alleged to have exercised his retained control negligently. Both sections deal
with the direct liability imposed on the employer of the independent contractor
for his own negligent acts. That commonality between the sections is at the core
of this Court’s analysis of the issue of the availability of employer liability.”). In
light of those considerations and Washington courts’ statements that landowners
remain liable for their own negligence, we conclude that the principle of section
410 is not limited to liability for harm to third parties.
Cite as 306 Or App 202 (2020) 233
be liable for an independent contractor’s creation of an obvi-
ously dangerous condition on the land when the owner neg-
ligently directs the contractor to create the dangerous con-
dition and should anticipate that, despite its obviousness,
the contractor’s employee will be injured by it. Thus, the
trial court correctly determined that the jury could consider
plaintiff’s theory that AC&S’s creation of large amounts of
airborne asbestos was a dangerous condition on defendant’s
premises. The trial court did not err in denying defendant’s
JNOV motion on the premises liability claim.
Next, we turn to defendant’s argument that the
trial court erred in denying its JNOV motion on plaintiff’s
negligence claim. First we consider plaintiff’s theory that
defendant owed Golik a duty under the common law because
it retained control over his work. As discussed above, the
general rule is that “an employer who contracts with an inde-
pendent contractor is not liable for injuries sustained by an
independent contractor’s employees.” Cano-Garcia v. King
County, 168 Wash App 223, 246, 277 P3d 34, 48, rev den, 175
Wash 2d 1010, 287 P3d 594 (2012); see also Restatement § 409
(stating the rule). An exception applies when the employer
retains control over the contractor’s work: “[W]here the
employer retains control over some part of the independent
contractor’s work, the employer has a duty within the scope
of that control to provide a safe place to work.” Cano-Garcia,
168 Wash App at 246, 277 P3d at 48.
The reasoning underlying the exception is that,
if an employer retains “the right to direct the manner in
which the work is performed,” the independent contractor
effectively becomes an employee, rendering the general rule
inapplicable. Kamla, 147 Wash 2d at 121, 52 P3d at 475-76.
Consequently, if the retained control is over the work in
general, it must be pervasive, and, if it involves only one
aspect of the work, it must be extremely detailed. See Afoa
v. Port of Seattle, 176 Wash 2d 460, 481, 296 P3d 800, 812
(2013) (Although “not every licensor or jobsite owner takes
on a common law duty to maintain a safe workplace any
time it requires on-site workers to comply with safety rules
and regulations,” “a jobsite owner who exercises pervasive
control over a work site should keep that work site safe for
all workers[.]”); Kinney v. Space Needle Corp., 121 Wash App
234 Golik v. CBS Corp.
242, 244-45, 247-48, 85 P3d 918, 919, 921 (2004) (the record
contained sufficient evidence of retained control over safety
where the employer—not the independent contractor—
provided “the safety equipment including safety lanyards,
harnesses, hoists, couplings, and safety lines with stops” for
the contractor’s crew; instructed the crew about required
safety procedures; had responsibility to control security
and safety issues for the crew; controlled their access to and
around the structure; and supervised and monitored the
crew). The ultimate question is whether the employer, rather
than the independent contractor, is acting, or is entitled to
act, like the worker’s direct employer.
Defendant contends that plaintiff failed to pres-
ent evidence sufficient to show, under Washington law,
that defendant retained enough control over AC&S’s or
Golik’s work to require it to provide a safe place to work. As
explained below, we agree.
Plaintiff did not introduce any contract between
defendant and AC&S or between defendant and a general
contractor who subcontracted with AC&S for the work that
AC&S did at defendant’s mill. Rather, to show that defendant
retained control over the work of AC&S and Golik, plaintiff
relied on general information about defendant’s contract-
ing practices from the deposition testimony of defendant’s
corporate representative, Barry Carson, and on provisions
from several documents related to contracts that defendant
entered into at other times with other contractors.
Carson testified that, for insulation contracts,
defendant would put out requests for proposals that included
drawings and specifications, including the brand of insula-
tion to be used. Regarding who was responsible for safety
under insulation contracts, Carson agreed that in “third-
party contract[s] with other parties, including asbestos
insulation subcontractors,” although the contractors were
responsible for safety, defendant retained the right to “stop
the job if [defendant] felt it was unsafe.”
None of Carson’s testimony indicates that defendant
had “the right to exercise day to day control over the manner
in which the details of the work are performed.” Epperly, 65
Wash 2d at 785, 399 P2d at 596. The Washington Supreme
Cite as 306 Or App 202 (2020) 235
Court has explained that provisions in a contract whose pur-
pose is to allow the employer to “insure that it receives the
product which it desires and within the time limit specified
for the completion of the work” do not show retained control.
Id., 399 P2d at 596. For that reason, specifications for the
work, even “detailed specifications,” do not show retained
control. Id. at 779, 399 P2d at 593. The same is true of the
right to stop work for safety violations. Cano-Garcia, 168
Wash App at 237, 277 P3d at 43 (“Although the contract lan-
guage provided for inspections to ensure compliance with
the contract and relevant laws and regulations and stop
work authority if an imminent threat to safety arose, those
powers alone are not enough to constitute retained control.”).
Plaintiff also proffered, and the court ultimately
admitted, parts of other contracts and documents related to
some of defendant’s contracts with other contractors for other
work.13 The court held that the documents were admissible
only for a limited purpose: Accepting plaintiff’s representa-
tions that the documents showed “a pattern in the language
of how the respective defendants managed their contrac-
tors and the control that they maintained with respect to
their contractors,” the court admitted the documents on the
theory that, to the extent that provisions in the documents
demonstrated a pattern with regard to how much control
defendant retained over contractors, “the inference could be
drawn that similar language would have been * * * included
in the AC&S contract, to the extent there was one.” In keep-
ing with that limited purpose, the court gave the jury a lim-
iting instruction regarding the documents.
On appeal, plaintiff identifies four documents and
provisions that, it contends, show that, regardless of whether
AC&S contracted directly with defendant or was hired by
another subcontractor, defendant retained sufficient control
over the way AC&S carried out its work that it was responsi-
ble for AC&S’s employees. The first states, “The Contractor
13
Defendant challenges the admission of those documents in some of its
assignments of error based on the general judgment and incorporates those
arguments into its assignment to the denial of the JNOV. We need not address
the admissibility of the documents because, as explained below, we conclude
that, even if they were properly admitted, they do not establish that defendant
retained control over the work of AC&S or Golik.
236 Golik v. CBS Corp.
shall comply with the basic safety rules of the particular
mill which cover such items as personal safety, speed limits,
smoking areas.” No safety rules for the Camas mill appear
in the record. The second provides detailed specifications for
installation of asbestos-containing insulation on equipment
at the Camas mill. Third, plaintiff relies on a section of a
contract providing that, if the contractor failed to provide
“properly skilled workmen” or “disregard[ed] the instruc-
tions” of defendant’s appointed representative, then defen-
dant could terminate the contract on three days’ notice.
Finally, plaintiff relies on a provision that required defen-
dant to give written approval before any work could be done
by a subcontractor because “the ability and reputation of the
party to whom any part of the work may be sub-let is a mat-
ter of importance to” defendant.
Those provisions do not demonstrate that defendant
retained control over the manner in which AC&S or Golik
performed the work. The latter three provisions are ways in
which defendant sought to “insure that it receives the prod-
uct which it desires”; they define the work to be performed
and provide contract-based methods of quality control.
Epperly, 65 Wash 2d at 785, 399 P2d at 596; see also Hymas,
167 Wash App at 157, 272 P3d at 899 (noting that the right
to reject work or stop the work of an independent contractor
is not retained control).
The first provision—providing that “[t]he Contractor
shall comply with the basic safety rules of the particular
mill which cover such items as personal safety, speed lim-
its, smoking areas”—would contribute some weight to a
body of evidence indicating that defendant retained control
over the safety of AC&S’s work. However, alone, it does not
show sufficient retained control to justify imposing liability
on an employer of an independent contractor as the direct
employer of the contractor’s employees. The Washington
Supreme Court has explained that “not every licensor or job-
site owner takes on a common law duty to maintain a safe
workplace any time it requires on-site workers to comply
with safety rules and regulations. Afoa, 276 Wash 2d at 481,
296 P3d at 811. Here, none of the other evidence suggests
that defendant retained control like an employer, rather
than specifying the timing and quality of the work, like a
Cite as 306 Or App 202 (2020) 237
contracting party. Carson testified that contractors, rather
than defendant, were ultimately responsible for safety. And
the evidence about AC&S’s work practices indicated that
that company’s workers were supervised by an AC&S fore-
man, not an employee of defendant. The provision requiring
independent contractors to follow mill rules does not, alone,
show sufficient retained control.
Thus, the provisions that plaintiff relies on do not
show that defendant retained control of the manner in
which AC&S and Golik performed the work. Nor has our
examination of the record revealed any other pattern of pro-
visions demonstrating retained control. Consequently, the
record does not support plaintiff’s theory that defendant
owed Golik a common-law duty because it retained sufficient
control over the manner in which he performed the work to
make him akin to an employee, rather than an independent
contractor.
However, that does not mean that the court’s error
was a reversible one. As explained above, on plaintiff’s sec-
ond claim, plaintiff presented two alternative theories of
duty to the jury, and the jury accepted both. Consequently,
the court did not commit reversible error in denying defen-
dant’s JNOV motion on plaintiff’s second claim unless
both theories of duty were invalid. Cf. Burley v. Clackamas
County, 298 Or App 462, 464, 446 P3d 564, rev den, 365
Or 721 (2019) (where “claims were presented to the jury as
independent, alternative theories of liability based upon
the same conduct” by the defendant, “if either one went to
the jury in an error-free way, then any error that may have
occurred in submitting the other theory to the jury would
be harmless”). Thus, we briefly consider, and reject, defen-
dant’s challenge to plaintiff’s statutory-duty theory of duty.
Defendant argues that, to prevail on her statutory-
duty theory, plaintiff had to prove that defendant retained
the same degree of control over the work of AC&S and Golik
as is required to show that defendant owed a common-law
duty to Golik as the employee of its independent contractor.
We disagree. The statute imposed on an employer a duty to
all workers, regardless of whether the worker was a direct
employee or the employee of an independent contractor.
238 Golik v. CBS Corp.
Former RCW 49.16.030 (1967) (requiring an employer to
“furnish a place of work that is as safe for workmen therein
as may be reasonable and practicable under the circum-
stances”); Bayne v. Todd Shipyards Corp., 88 Wash 2d 917,
920, 568 P2d 771, 773 (1977) (“[Former RCW 49.16.040 (1971)]
requires a safe place of work for workmen. It does not limit
it to employees of the defendant employer.”). Accordingly, to
the extent that plaintiff’s statutory claim might require a
showing of some control over the injury-causing work, the
degree of control that it requires is much less than the high
degree of control necessary to show a common-law duty to
the employee of an independent contractor.
In summary, the trial court did not err in granting
defendant’s motion for a new trial or in denying its JNOV
motion.
Affirmed on appeal and cross-appeal.