## Facts

- Antonio Cortez worked at a lumber mill operated by Sun Studs, LLC.
- Cortez was struck by a forklift while walking between mill areas and suffered severe injuries.
- Cortez received workers’ compensation benefits through Sun Studs.
- Cortez sued multiple defendants, including Swanson Group, Inc., Sun Studs’ corporate parent and sole member/manager, alleging:
  - common-law negligence for failing to provide (or require Sun Studs to provide) a safe workplace and competent safety personnel; and
  - a claim under Oregon’s Employers’ Liability Law (ELL) based on failure to take required safety measures.

- Swanson provided Sun Studs with a safety manual and exercised general oversight, but delegated day-to-day safety implementation to Sun Studs personnel.

## Issues

1. Whether Oregon workers’ compensation exclusivity (ORS 656.018 (2011)) or LLC member/manager immunity (ORS 63.165(1)) barred Cortez’s negligence and ELL claims against Swanson.
2. Whether Swanson owed and breached a common-law duty of care to Cortez based on Swanson’s role in safety oversight and mill operations.
3. Whether Swanson could be liable under the ELL as an entity “having charge of” work or retaining sufficient control over safety.

## Decision

- The Oregon Supreme Court held that neither ORS 656.018 (2011) nor ORS 63.165(1) categorically barred claims against Swanson.
- The court reinstated summary judgment for Swanson on the common-law negligence claim, concluding Swanson lacked sufficient operational control or direct involvement to create an independent duty to Cortez regarding the forklift hazard.
- The court held Cortez adequately stated an ELL claim against Swanson and remanded that claim for further proceedings.
- The court concluded that, for injuries predating June 24, 2013, ORS 656.018 (2011) did not extend workers’ compensation immunity to LLC members/managers for ELL liability.

## Legal Principles

- ORS 63.165(1) protects LLC members/managers from status-based, vicarious liability for LLC obligations; it does not bar liability for the member/manager’s own negligent conduct.
- Under ORS 656.018 (2011), workers’ compensation exclusivity generally applies to the direct “subject employer” and, as then written, did not automatically immunize a parent entity or LLC manager for a worker’s claims.
- Common-law negligence liability for a non-employer parent/manager requires more than general oversight; absent evidence of actual control over the specific unsafe activity or condition, no independent duty is established.
- ELL liability may reach beyond common-law negligence where the defendant retains a right to control, or is “in charge of,” work involving risk or danger; retained authority over safety may create triable ELL exposure even if negligence fails.
- Statutory expansions of immunity effective June 24, 2013 did not apply to earlier injuries.

## Conclusion

The court rejected statutory immunity defenses as categorical bars, but held Swanson’s policy-level safety oversight did not create a common-law negligence duty tied to the forklift accident; nonetheless, Swanson’s retained authority over workplace safety could support ELL liability, so the ELL claim was remanded for further proceedings.


Cortez v. Nacco Material Handling Grp., Inc., 356 Or. 254, 337 P.3d 111 (Or. 2014)