NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 19 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY GROENEWEG, No. 23-35578

Plaintiff-Appellant, D.C. No. 6:20-cv-01030-AA

v.

MEMORANDUM*

JELD-WEN, INC., a foreign business corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted December 2, 2024 Portland, Oregon

Before: TASHIMA, NGUYEN, and SUNG, Circuit Judges.

Gary Groeneweg, a driver for Crete Carrier, was injured while delivering

and unloading windows owned by manufacturer JELD-WEN. Groeneweg sued

JELD-WEN for common law negligence, negligence per se, and violations of

Oregon’s Employment Liability Law (ELL) and the Oregon Safe Employment Act

(OSEA). The district court granted summary judgment in favor of JELD-WEN on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. all claims. Groeneweg timely appealed.

We have jurisdiction under 28 U.S.C. § 1291, and we “review the district

court’s grant or denial of motions for summary judgment de novo. Thus, on

appellate review, we employ the same standard used by the trial court under

Federal Rule of Civil Procedure 56(c). As required by that standard, we view the

evidence in the light most favorable to the nonmoving party, determine whether

there are any genuine issues of material fact, and decide whether the district court

correctly applied the relevant substantive law.” Animal Legal Def. Fund v. U.S.

Food & Drug Admin., 836 F.3d 987, 988–89 (9th Cir. 2016) (en banc) (cleaned

up). Applying this standard, we affirm in part, reverse in part, and remand.

1. The district court properly applied the Yowell or “specialized expertise

and knowledge” doctrine to Groeneweg’s common law negligence claim. See

Spain v. Jones, 257 Or. App. 777, 783 (2013) (citing Yowell v. Gen. Tire & Rubber

Co., 260 Or. 319, 325 (1971)). While Groeneweg is correct that common law

negligence claims in Oregon are normally governed by a more forgiving

foreseeability test, that test does not apply where a party has “invoke[d] a status

[or] a relationship . . . that creates, defines, or limits the defendant’s duty.”

Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17 (1987). For example, a

defendant who orders work to be done by a third party owes no duty to such third

party if the work falls “within a special expertise or knowledge, not shown to have

2 been had by the person ordering the work . . . .” Yowell, 260 Or. at 325.

Here, it is indisputable that JELD-WEN invoked such a “special

relationship.” Record evidence beyond JELD-WEN’s contract with Crete also

supports the district court’s application of the special relationship exception.

Groeneweg’s arguments to the contrary are unpersuasive. The exception has never

been limited to landowner liability or based on who invokes it. See, e.g., George v.

Myers, 169 Or. App. 472, 486 (2000) (“Yowell itself noted that its analysis applied

equally, regardless of whether the defendant was a land owner or a general

contractor.”); Yeatts v. Polygon Nw. Co., 360 Or. 170, 194 (2016) (emphasizing

same); Spain, 257 Or. App. at 783–89 (tracking Fazzolari’s evolution and

collecting cases).

2. Summary judgment on Groeneweg’s common law negligence claim,

however, was improper because the record raises triable issues of fact about (a)

whether the risk presented by unloading windows is obvious and inextricably

intertwined and (b) whether JELD-WEN lacks expertise in and control over

unloading windows. See Spain, 257 Or. App. at 787–88 (outlining Yowell’s

elements); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–51 (1986)

(outlining summary judgment standard).

(a) “The question of risk and danger is determined by the court only in those

cases where the facts are all one way and reasonable minds could not disagree.

3 Ordinarily it is a question of fact for the jury.” Bartley v. Doherty, 225 Or. 15, 24

(1960). Here, the district court found that the risk presented by unloading windows

was “obvious” given PB Supply employees’ past knowledge of accidents and

Groeneweg’s experiences with JELD-WEN, which included a pre-trip inspection

and an accident in Colorado. But the record shows that the purpose of the pre-trip

inspection was only “to make sure [the load] doesn’t shift during transport.”

Groeneweg also attested that he could not see the stack of unsecured windows that

fell on him during inspection. That stack was obscured from view by a window

spanning nine feet long and six feet high. Moreover, while Groeneweg was “hit on

the left shoulder” by a window previously, he attributed that accident to snow, not

unsafe loading. The extent of his injuries from that incident is also unclear. There

is also no evidence that Groeneweg had professional moving or unloading

experience or training. It is unclear, too, whether Groeneweg shared the PB

Supply employees’ knowledge of past accidents. The district court’s conclusions

thus rested on improper inferences and disregarded evidence raising a genuine

dispute of material fact. See Anderson, 477 U.S. at 248–49.

The district court also erred in finding that the risk was “intertwined” with

Crete’s services. See Bartley, 225 Or. at 24. While Crete does engage in touch

loads and occasionally hires lumpers, the record shows that, in Groeneweg’s

experience, lumpers are typically only available in grocery stores or distribution

4 centers. Additionally, Groeneweg typically lets recipients unload the trailer in his

role as a “national driver.” And according to his uncontroverted testimony, Crete

does not provide any informal or formal training on unloading. Accordingly, a

reasonable juror may find that the risk presented by unloading windows is not

inextricably intertwined with Crete’s services as a carrier. See Spain, 257 Or. App.

at 790–91 (reversing summary judgment in light of competing “considerations

relevant to whether a risk is inextricably intertwined with . . . employer’s

specialized task”).

(b) There is also a genuine dispute about who had “expertise regarding or

control over the specialized task” of transporting or unloading windows. See

Spain, 257 Or. App. at 787–88. Crete was not the only expert or the one in control.

First, hiring lumpers was not within the exclusive control of Crete. Lumpers must

first be authorized by the customer, who ultimately pays for the services, and then

Crete. Second, while it was owned by Crete, the trailer was held and loaded by

JELD-WEN employees before pick-up. JELD-WEN also ordered Groeneweg to

place its own seal on the trailer, even though Crete had its own enforcer lock.

Third, JELD-WEN’s policies impose several rules on drivers. These include

requiring them to wear specific safety equipment, avoid cut-off shirts or tank tops,

and behave professionally at the unloading location. JELD-WEN also tells drivers

that they represent their own companies and JELD-WEN itself. Fourth, JELD-

5 WEN has a detailed step-by-step guide on how to load the trailers and which tools

to use. It employs a specific supervisor to ensure the proper loading of windows

into trailers, and it issues grading sheets for drivers’ unloading performance. In

sum, there is “evidence supporting” Groeneweg’s claim that JELD-WEN “was

responsible” and had expertise over the risks of unloading windows. Spain, 257

Or. App. at 791. Summary judgment was therefore improper on the common law

negligence claim.

3. There is also genuine dispute about JELD-WEN’s indirect employer

status and liability under the ELL. The ELL “applies not only to direct employers

but also to ‘indirect employers.’” Brown v. Boise-Cascade Corp., 150 Or. App.

391, 396 (1997). “‘Indirect employer’ liability under the [ELL] can be premised

on any of three disjunctive tests: (1) the ‘common enterprise’ test; (2) the ‘retained

control’ test; or (3) the ‘actual control’ test.” George, 169 Or. App. at 477; see

also Brown, 150 Or. App. at 396 (applying all three tests). An indirect employer is

liable under the “common enterprise” test where: (1) “two employers (the

plaintiff’s actual employer and a third-party defendant employer) participate in a

project of which the defendant employer’s operations are an ‘integral’ or

‘component’ part”; (2) “the work must involve a risk or danger to the employees or

the public”; (3) “the plaintiff must be an employee of the defendant employer”; and

(4) “the defendant must have charge or responsibility for the activity or

6 instrumentality that causes the plaintiff’s injury.” Sacher v. Bohemia, Inc., 302 Or.

477, 486–87 (1987) (cleaned up).

The district court found that only the last two elements of this test were at

issue. Citing the fact that JELD-WEN never touched the windows after

Groeneweg sealed the trailer, the district court held that JELD-WEN lacked control

over the “instrumentality” of Groeneweg’s injury—the act of unloading the

windows. JELD-WEN, in the district court’s view, was therefore not liable under

the “common enterprise” theory, even assuming it employed Groeneweg.

The district court erred by focusing only on unloading as the “risk-producing

activity.” Under the common enterprise test, liability arises in “circumstances

where both employees of the defendant and employees of the direct employer have

intermingled duties and responsibilities in performing the risk-creating activity.”

Yeatts, 360 Or. at 180 (simplifying the test); see also ORS § 654.305 (imposing

ELL liability on “all owners, contractors or subcontractors and other persons

having charge of, or responsibility for, any work involving a risk or danger to the

employees or the public” (emphasis added)). In the joint enterprise of delivering

JELD-WEN windows across the country, there cannot be unloading without

loading. Only JELD-WEN employees loaded the trailer. JELD-WEN also has

extensive guidelines on how to load the windows properly and even employed a

supervisor for that purpose—particularly to avoid “more claims” due to “lack of

7 driver oversight.” JELD-WEN also required Groeneweg to pick-up, complete, and

follow paperwork regarding delivery. A jury could therefore reasonably find that

JELD-WEN had “charge or responsibility” of shipping windows. That JELD-

WEN had strict policies on how to load windows to avoid “more claims” arguably

demonstrates its knowledge that improper loading could likewise result in “more

claims.”1 See Anderson, 477 U.S. at 255 (“all justifiable inferences are to be drawn

in [nonmovant’s] favor”).

For similar reasons, the district court erred in concluding that JELD-WEN

was not liable under the “right to control test.” To be liable, JELD-WEN “must

have exercised or retained a right to control the manner or method in which the

risk-producing activity was performed.” Quakenbush v. Portland Gen. Elec. Co.,

134 Or. App. 111, 116 (1995) (emphasis in original). The record contains

evidence suggesting it did. Summary judgment on Groeneweg’s ELL claim was

therefore improper.

4. The district court properly granted summary judgment against

Groeneweg’s negligence per se and OSEA claims premised on indirect employer

status. It is well-settled that unlike the ELL, “the OSEA does not extend its

coverage to indirect employers, and that, thus, noncompliance with the OSEA

1 This same set of evidence also raises a genuine dispute as to whether Groeneweg qualifies as an employee of JELD-WEN under the common enterprise test.

8 cannot be the basis for a negligence per se claim against an indirect employer.”

George v. Myers, 169 Or. App. 472, 478 (2000) (cleaned up). We decline

Groeneweg’s request to disturb settled precedent in the absence of a

pronouncement by Oregon’s highest court. See AGK Sierra De Montserrat, L.P. v.

Comerica Bank, 109 F.4th 1132, 1136 (9th Cir. 2024).

5. The district court did not err by finding that JELD-WEN was not an

“owner” liable under the OSEA. A “defendant owner is liable only if the

regulation whose violation underlies the OSEA claim is one that either explicitly,

or by nature, imposes obligations on owners of premises.” Brown, 150 Or. App. at

408. Here, the only regulations Groeneweg identifies that mention liability for

“owners” are ORS §§ 654.015 and 654.022. ORS § 645.015 states “No employer

or owner shall construct or cause to be constructed or maintained any place of

employment that is unsafe or detrimental to health,” while ORS § 654.022 broadly

states that “[e]very employer, owner, employee and other person shall obey and

comply with” applicable safety and health regulations. Even assuming that

Groeneweg is correct that the trailer was a “place of employment,” nothing in the

record suggests that JELD-WEN was the one who constructed or caused it to be

constructed. JELD-WEN may have had control of the trailer in the context of the

risk-producing activity and indirect employee analysis. But it is undisputed that

JELD-WEN did not actually own the trailer or truck; Crete did. See Brown, 150

9 Or. App. at 408 (holding that regulations relating to “work practices or methods, as

opposed to requirements pertaining to workplace structures or safeguards, may not

apply to owners”). Crete was therefore the one responsible under OSEA for

maintaining a safe place of work. Accordingly, there is no genuine dispute of

material fact pertaining to JELD-WEN’s status and liability as an “owner” under

OSEA.

***

We REVERSE the district court’s grant of summary judgment against

Groeneweg’s common law negligence and ELL claims and otherwise AFFIRM.

We REMAND for proceedings consistent with this memorandum.

The parties shall bear their own costs.

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