During the COVID-19 pandemic, time limitations (including statutes of limitation and various notice requirements) on most civil claims in Oregon have been paused. This means most claims that otherwise would have expired during the pandemic are still viable and can be brought. As numerous states, including Oregon, begin to lift COVID restrictions, business owners, managers and operators should be aware of the effect on the timing of claims they may hold (or, conversely, of claims that others may hold against them).

In June 2020, the Oregon Legislature, pursuant to House Bill 4212, Section 7, enacted a COVID-19 protection that effectively paused the expiration of most civil time limitations under certain circumstances. Specifically, the bill provided that if the expiration of time to commence an action or give notice of a claim falls within the governor’s COVID-19 state of emergency (or any extension of the state of emergency), then the expiration of time is extended to 90 days beyond the date the state of emergency is no longer in effect. In practice, that would mean that if a claim (or notice of a claim) had to be commenced on, for example, Feb. 1, 2021, the bill would override that timing deadline. The new deadline would be 90 days following the expiration of the state of emergency, whenever that may be.

Because of the indefinite and prolonged nature of the pandemic (and the related emergency orders), most businesses haven’t yet had to worry about expiring civil claims. But with restrictions starting to ease, business owners should consider whether they hold a claim that would have expired during the pandemic if not for the legislative pause. The list of such claims is very broad, and not all of them are included here. Suffice it to say, the list covers most civil claims – including but not limited to claims for breach of contract, claims to recover balances due on an account, claims for personal injury or property damage, actions arising under lease or rental agreements, and actions for damages from construction or repair work.

If your business holds such a claim, it is important to be vigilant in learning the eventual expiration of the state of emergency because that date will, in turn, determine the claim filing deadline. It may be wise to consult with an attorney prospectively so that attorney may evaluate the timing issues and advise you with respect to when and how to bring the claim as the COVID-19 restrictions ease and, ultimately, the state of emergency is lifted. That attorney will also be able to advise you on what documentation to retain for purpose of the claim. Since no one knows when the state of emergency will be lifted, it is important to prevent claim-related information from being deleted, destroyed or discarded in the interim.

Recently, Gov. Kate Brown extended Oregon’s state of emergency through June 28, unless extended or terminated earlier. If past experience is any indication, this will likely be extended again. However, business owners should be aware of the effect the state of emergency has on claims they may hold, and consult an attorney in navigating those claims in conjunction with the eventual expiration of the COVID-related emergency orders.

Tab Wood is a partner in Sussman Shank’s litigation group. He represents individuals and businesses in civil litigation. Contact him at 503-972-4259, or twood@sussmanshank.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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A contractor who manufactures, sells or installs products should have an understanding of Oregon’s product liability law, including how it could create risk for the business, and the preemptive steps that can be taken to mitigate those potential risks. Following is a brief outline of the law and a look at the issues before contractors.

What is product liability? Basically, it’s a body of law in Oregon (and other states have similar laws) that provides for monetary damages to a party who suffers personal injury or property damage as a result of a product manufactured, sold, leased, or – in certain cases – installed in a dangerous condition.

You may have heard of some of the most high-profile product liability cases surrounding cigarettes, asbestos, automobile parts and even breast implants. However, product liability law covers a wide array of products and businesses, including the construction industry. For example, Oregon product liability law has been applied to scaffolding, custom flooring, truss joists and beetle-infested lumber. It has also been applied to equipment and machinery that could be used on a construction site – sanders and forklifts, for instance.

What kind of business is at risk for liability? In Oregon, the businesses that are at risk for product liability are those that manufacture, distribute, sell or lease products. Those categories may seem relatively straightforward, but the lines are sometimes blurred. One of the most common areas of confusion involves the situation where a contractor sells and installs a product that ultimately causes injury or property damage.

For example, in one Oregon case, a worker in a bakery slipped on an acrylic floor that had been sold and installed by a contractor over a concrete substrate. To apply the floor, the contractor had prepared the concrete surface, applied a low-viscosity prime coat, applied a thicker coat of viscous resin, and then applied acrylic flakes over the surface to accomplish the requested color and non-slip texture. However, the end result was a floor much slipperier than the product samples suggested.

The injured worker sued the contractor for product liability based on faulty installation of the floor. The contractor argued that product liability didn’t apply to installation of a product; however, the Oregon court disagreed and held that installing the product on site was basically the same as manufacturing the product, for which product liability did indeed apply.

Courts have differentiated this scenario from a scenario where a contractor simply installs a prefabricated product that it neither designed nor sold. In that scenario, there would likely be no exposure for product liability based only on installation of the product (as opposed to the sale, manufacture, distribution or lease of a product).

So what does a business owner need to think about in regard to mitigating the risk of product liability exposure? If a business involves the supply, marketing, sale or installation of a product, one would be wise to have contracts for goods and services reviewed. There are ways to limit or allocate potential exposure through proper use of indemnity or limitations of liability clauses.

Further, if a business owner becomes aware of any injury or property damage resulting from or potentially connected to the business or its products, contact a lawyer right away so that potential exposure can be mitigated and necessary steps can be taken to protect business interests.

Tab Wood is a partner in Sussman Shank’s litigation group. He represents individuals and businesses in civil litigation, including complex commercial, construction, personal injury, employment and real estate issues. Contact him at 503-972-4259 or twood@sussmanshank.com.

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Typically, when a construction worker in Oregon is injured on the job, his or her exclusive remedy to recover for the injuries is through the workers’ compensation system. However, when a construction worker is injured on a project involving not only his or her direct employer, but also a number of other companies and/or contractors, the construction worker will often seek to recover damages from these third parties beyond the workers’ compensation scheme.

The worker does this through Oregon’s Employer Liability Law (ELL), which holds companies on a project (other than the worker’s direct employer) liable for the worker’s injuries under certain circumstances.

What is the ELL? It’s an Oregon statute that imposes a heightened standard of care on those in charge of or having responsibility for work that involves risk or danger. The high standard requires a contractor or owner of a construction project to use every device, care and precaution that is practicable to use for the protection and safety of life and limb, without regard to the additional cost.

When and why is the ELL used? It’s used when a worker is injured on a project involving not only his or her direct employer, but also other companies or contractors jointly working on the project. A typical example is a project where there is a developer, architect, general contractor and several subcontractors. If an employee of a subcontractor is injured on the job, that employee will likely be compensated for his or her injury through the workers’ compensation system. However, that employee may also use the ELL to seek compensation from the general contractor, the architect, other subcontractors and/or the developer.

When is a company exposed under the ELL? The short answer is companies that are considered “indirect employers” of the injured worker have exposure under the ELL. However, certain requirements must be met before the court will consider a company an indirect employer. Specifically, the injured worker must establish that the indirect employer fits into one of three categories.

The first category includes instances where the injured worker’s direct employer and the other company are engaged in a “common enterprise.” Courts have said that basically includes instances where both the injured worker (and his or her co-workers) and the employees of the other company intermingle with each other while performing the particular activity that results in injury to the worker, or where the equipment that injures the worker is under the other company’s control.

For example, if a framing contractor’s employee is injured on a project due to faulty scaffolding, then that employee may be able to maintain a common enterprise ELL theory against the general contractor if the general contractor’s employees intermingled with the injured worker performing the framing duties and were in charge of something more than general project oversight and scheduling – i.e. the general contractor provided and set up the scaffolding, directed what type of fall protection to use, and provided employees to work alongside the injured worker to assist in the framing task or direct how it was to be accomplished.

The second and third categories include instances where the other company retained the “right to control” or actually controlled how the injured worker accomplished his or her work. The “right to control” analysis focuses on the text of the contract between the parties – usually a general contractor and a subcontractor – and the extent to which the contract documents allow the other company (general contractor) to control safety procedures and oversight on the project, as well as the means and methods of how a subcontractor performs its work.

This is a detailed and often complex analysis that requires a thorough reading of the entire construction contract between the general contractor and subcontractor, paying particular attention to those sections detailing the parties’ respective job duties and responsibilities, including those related to safety oversight and procedures. The actual control analysis focuses on the same areas, but involves a review of what actually happened on the job – i.e., how the companies interacted, rather than on the terms of the contract.

Why is it important to understand the ELL, and what can one do proactively to minimize exposure? It’s important to understand the ELL because it has the potential to create liability on almost any construction job site where there is more than one company involved in the work. Before engaging in such a job, a company should have any construction agreement reviewed by an attorney prior to signature.

The “right to control” line is complicated, and there is often language in construction agreements that comes close to or crosses the line. It’s also important to understand how employees and supervisors should act on a job site to avoid creating a “common enterprise” scenario or a scenario where an injured worker could argue the other company actually controlled how he or she did the work. Lastly, if an injured worker seeks compensation against one’s company on any of these theories, immediately engage an attorney to help evaluate whether one is, in fact, an “indirect employer” under the ELL and, if not, help facilitate an exit from the case.

Tab Wood is an attorney in Sussman Shank’s litigation group. He represents individuals and businesses in civil litigation, including complex commercial, construction, personal injury, employment and real estate litigation. Contact him at 503-972-4259 or twood@sussmanshank.com.

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