1. Defamation

   1. Definition
      
      Defamation is a false and defamatory communication about a person that damages that person’s reputation and is published to a third person. If the statement is written, it is called libel and damage is presumed. If the statement is oral, it is called slander. In slander, damaged is presumed in certain circumstances, including where the communication relates to one’s fitness or competency in his or her employment, trade or profession. Cook v. Safeway Stores, Inc., 266 Or. 77, 511 P.2d 375 (1973). Defamation claims often arise in employment settings when an employer tells others why an employee was terminated.

      1. Defenses -- Qualified Privilege.
         
         Oregon law recognizes that employers have a qualified privilege to disclose information to other employers about the character and conduct of their employees. A statement is conditionally privileged from claims of defamation under Oregon law if (1) it was made to protect the interests of the defendant, (2) it was made to protect the interests of the plaintiff’s employer, or (3) it was on a subject of mutual concern to defendants and the person to whom the statement was made. Kofoed v. Rosendin Electric, Inc., 157 F.Supp.2d 1152 (D.Or. 2001). This privilege is not absolute, and the employer is subject to liability if the privilege is abused. Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1997).

      2. Defense – Truth
         
         Truth is a defense, although the truth or falsity of the statement may be a question of fact for the jury. See Hickey v. Settlemier, 116 Or. App. 436, 440, 841 P.2d 372, aff’d. in part/rev’d in part on other grounds, 318 Or. 196, 864 P.2d 372 (1993).

      3. Compelled Self-Publication
         
         Some states recognize the theory of defamation called “compelled self-publication,” where a prospective employee is compelled to tell an employer why she was terminated from her prior employment. In order to prevail on this theory, the plaintiff must show that she actually communicated a “false reason” for termination to a prospective employer.
         
         Oregon courts have not yet decided whether this theory can be the basis for a defamation claim. Downs v. Waremart, Inc., 324 Or 307, 926 P.2d 314 (1996) (former employee failed to publish former employer’s allegedly defamatory statements to third party, and so could not maintain defamation action on basis of compelled self-publication, even if this theory could form the basis for a defamation action).

   2. Recent Case Law Developments

      1. Araujo v. General Electric Information Services, 82 F.Supp.2d 1161 (D.Or. 2000).
         After Araujo was terminated by GEIS, he filed several claims including one for defamation. (See sections on fraudulent misrepresentation and intentional infliction of emotional distress elsewhere in this manuscript). Araujo based his defamation claim on allegedly false statements made by his regional manager in his termination letter which was then shared with Human Resources, and, Araujo claims, the contents of which were shared with other employees in the region. Araujo further claimed that GEIS shared the reasons for his termination with people in the general business community, including his former clients.
         
         The District Court granted summary judgment to GEIS on the defamation claim. As regards communications to employees, the court relied on the qualified privilege exception, stating that an employer has a qualified privilege to notify employees of the reason for a co-employee’s termination. The court, while acknowledging that a claim based on the doctrine of compelled self-publication was viable, rejected the argument in this case, stating that he failed to prove that he was under any compulsion to disclose the statements made by GEIS to prospective employers. Finally, Araujo’s claim that GEIS discussed the reasons for his termination with his prior clients failed for lack of proof that there were such communications.

      2. Ishikawa v. Delta Air Lines, Inc., 149 F.Supp.2d 1246 (D. Or. 2001).
         An airline flight attendant was fired for allegedly altering her urine specimen provided as part of the company’s mandatory random drug testing program. After she was terminated, the flight attendant discussed her situation with several employees and union representatives, gave interviews to the media and contacted members of Congress. Shortly thereafter, Delta began a series of employee presentations and published a pamphlet for distribution to employees regarding its drug testing policies and programs. Although Ishikawa’s name was never mentioned during the meetings, some employees said that they believed the presentation was about her. Two supervisors told other employees that Ishikawa had been terminated for altering her urine sample. Approximately a year after Ishikawa’s termination, Delta discovered problems with the lab and cancelled its contract. The flight attendant brought suit against Delta for defamation as well as various tort claims against the lab (see discussion below on negligent misrepresentation).
         
         The District Court granted Delta’s motion for summary judgment on the defamation claim on several bases: (1) the employer had the benefit of a qualified privilege to share information since the statements were made to protect the interests of the employer and it was made on a subject of mutual concern to the employer and its employees; (2) when the supervisors made statements about the employee’s altering of her urine sample, they had no reasonable grounds for knowing or believing that the statements were not true; and (3) there was an insufficient connection between the statements made at the employee meetings and in the pamphlet and the plaintiff’s case to support a claim of defamation.

      3. Kofoed v. Rosendin Electric, Inc., 157 F.Supp.2d 1152 (D.Or. 2001).
         Kofoed was an electrician and member of Local 48 of the IBEW, which is the exclusive representative for all electricians working in the greater Portland area. Under the union contract, an employer can reject or “turn around” an electrician who is sent to the job site with no explanation or reason given for rejection. In 1998, Rosendin, an electrical contractor based in California, was performing electrical work at Intel’s plant in Hillsboro, OR. Kofoed reported to the job site for work and was rejected by the foreman. In his attempts to get hired at the Intel site, Kofoed made several phone calls to Rosendin’s headquarters and when asked why he was “turned around”, Kofoed replied that he “should not have to hook electrodes up to a person to get the truth.” Rosendin’s manager interpreted Kofoed’s comment as a threat, and wrote a letter to the union to this effect. Allegedly, the union steward told two of Rosendin’s electricians about the threat. Kofoed filed suit against Rosendin for defamation and intentional interference with economic relations after his union grievance was dismissed.
         
         The District Court held that federal labor law preempted the state law claim filed by Kofoed because the claim depended on an interpretation of the collective bargaining agreement. Second, under Oregon law, the plaintiff is required to show that a slanderous statement is either defamatory per se or that the statement caused the plaintiff special damage. To be defamatory per se, the statement allegedly made by the union steward would have to refer to Kofoed’s competence as an electrician, which it did not. To have suffered special damage, Kofoed must demonstrate that he suffered a pecuniary loss as a result of the statement that was made. Because Kofoed could not prove that any other company refused to hire him as a result of the union steward’s statement, his claim failed.

      4. Affolter v. Baugh Construction Oregon, Inc., 183 Or App 198 (2002).
         The Oregon Court of Appeals recently held that an employee’s defamation claim could proceed to trial when a project superintendent for a general contractor commented, “he thought” a subcontractor’s sheet metal supervisor “had too much to drink.” The comment was made to other supervisors and overheard by an apprentice working for the plaintiff sheet metal supervisor. The court rejected the construction company’s “qualified privilege” defense. The court found evidence that the superintendent had long expressed hostility to the plaintiff and had wanted him removed from the job. According to the court, a jury could conclude that such evidence proved that the superintendent did not believe his statement was true or that he had personal motives for wanting plaintiff off the job. Either is a basis for rejecting the qualified privilege.
         The court also rejected the arguments that the comment was just an opinion because it could have “implied” an unstated, underlying “fact” that he was intoxicated. And, the court rejected an alternative defense that the two beers the plaintiff admitted drinking were “too much” in light of a zero tolerance policy. The court reasoned that there was a question of fact for the jury to decide whether the plaintiff was in compliance with the zero tolerance policy.

2. Fraudulent Misrepresentation

   1. Definition

      1. Under Oregon law, the elements of a claim of fraudulent misrepresentation are: (1) a representation, (2) its falsity; (3) its materiality, (4) speaker’s knowledge of falsity or ignorance of the truth. (5) speaker’s intent that the representation should be acted upon by the person and in the manner reasonably contemplated, (6) hearer’s ignorance of the falsity, (7) reliance on the supposed truth of the representation, (8) right to rely, and (9) consequent and proximate injury. Ishikawa v. Delta Air Lines, Inc., 149 F.Supp.2d 1246 (D.Or. 2001).
         
         Under Oregon law, to prevail on a claim of fraudulent misrepresentation, the plaintiff must prove:(1) the defendant made a material false representation; (2) the defendant knew that the representation was false or made the representation recklessly without knowing whether it was true or false; (3) the defendant either intended to mislead, knew it was misleading plaintiff or recklessly disregarded that it was misleading plaintiff; and (4) the plaintiff was damaged by reasonable reliance on the representation. Araujo v. General Electric Information Services, 82 F.Supp.2d 1161, 1170 (D.Or. 2000).

   2. Recent Case Law Developments

      1. Araujo v. General Electric Information Services, 82 F.Supp.2d 1161 (D.Or. 2000).
         After Araujo was terminated by GEIS, he filed several claims including one for fraudulent misrepresentation. (See sections on defamation and intentional infliction of emotional distress elsewhere in this manuscript). The claim was based on an alleged promise that GEIS made to induce him to accept its offer of employment, namely that Araujo would be allowed to compete for the position of Regional Manager for the Western District when the position became open. Another employee was hired to fill that position instead. Araujo claimed that since the selection for that job was made at the corporate level, the regional manager who hired him had no authority to bind GEIS to consider him for the job.
         
         The District Court issued summary judgment for GEIS on this claim, stating that the plaintiff failed to prove that, at the time he was hired, GEIS had no intention of allowing him to compete for the job, and that the regional manager could not know that her representations concerning the regional manager position were false when she made them.

      2. Ishikawa v. Delta Air Lines, Inc., 149 F.Supp.2d 1246 (D.Or. 2001).
         An airline flight attendant was fired for allegedly altering her urine specimen provided as part of the company’s mandatory random drug testing program. She filed suit against the laboratory that had contracted with her employer to perform the drug test, claiming that they negligently misrepresented the results. (See section on defamation for claims against the employer).
         
         The District Court held that there were sufficient issues of material fact as to whether the flight attendant reasonably relied on the lab to accurately report the results of the drug test to the airline to preclude summary judgment for the lab. In addition, there was sufficient question as to whether the lab knew that rounding off certain test parameters would cause employees to lose their jobs. The suit against the lab was therefore permitted to proceed.

3. Wrongful Termination in Violation of Public Policy

   1. Definition
      
      All of these elements are necessary to state a claim for wrongful termination in violation of a public policy:

      1. The plaintiff was employed by the defendant and was dismissed involuntarily.

      2. The plaintiff pursued either

         1. a public, societal obligation recognized in the clear mandate of existing law (statute, regulation, constitutional provision, case) or

         2. a private legal right that is

            1. related directly to the plaintiff's role as an employe and

            2. "of important public interest indicated by constitutional and statutory provisions and caselaw."

      3. The defendant discharged the plaintiff because of the exercise of such a right.

      4. The same right is not adequately protected by other existing remedies.

      5. The defendant's act caused the plaintiff damage.

      McCool v. Hillhaven 97 Or. App. 536, 545, 777 P.2d 1013 (Graber, J., dissenting), rev. den. 308 Or. 593, 784 P.2d 1100 (1989).
      
      In Oregon, the elements of a wrongful discharge claim are simply that there must be a discharge, and that discharge must be “wrongful.” Thorson v. Dept. of Justice, 171 Or. App. 704, 709, 15 P.3d 1005 (2000).

   2. Examples:
      
      Oregon courts have recognized the exercise of the following fundamental societal obligations as the basis for a wrongful termination suit:

      • jury duty, Ness v. Hocks, 272 Or. 210, 536 P.2d 512 (1975);

      • duty to avoid defaming others, Thorson v. State of Oregon, 171 Or.App. 704, 15 P.3d 1005 (2000);

      • reporting alleged patient abuse, McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107, 684 P.2d 21, rev den. 298 Or. 37, 688 P.2d 845 (1984).

      Oregon courts have recognized the exercise of the following employment-related rights as the basis for a wrongful termination suit:

      • resisting sex harassment or, Holien v. Sears, Roebuck & Co., 298 Or. 76, 90, 689 P.2d 1292 (1984);

      • resisting other forms of discrimination, Goodlette v. LTM, Inc., 128 Or. App. 62, 65, 874 P.2d 1354 (1994).

      • filing a workers’ compensation claim, Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978).

   3. Recent Case Law Developments

      1. Thorson v. State of Oregon, 171 Or.App. 704, 15 P.3d 1005 (2000).
         Thorson was employed by the Oregon Department of Justice in the Support Enforcement Division. Shortly after she was hired, a male co-worker allegedly touched her arm with his hand and informed her that she was violating the unwritten dress code by wearing a sleeveless top. When Thorson checked on this policy with her supervisor, the supervisor told her that the male co-worker had committed sexual harassment by his actions, and that the supervisor would have to report the incident to her manager. The supervisor also told Thorson that if she refused to cooperate with the investigation, she would be fired. Thorson refused to file a complaint against the co-worker, stating that the co-worker did not sexually harass her.
         
         Shortly after this exchange, the supervisor began to treat Thorson differently. Thorson was written up for unexcused absences, was reprimanded for being “overly talkative” and other employees were told to stop training her as she was about to be fired. When Thorson was terminated several months later, she filed suit for wrongful termination for failing to file a false report of sexual harassment.
         
         The Oregon Court of Appeals held for Thorson, stating that refusing to make a false allegation against a fellow employee fulfills an important societal obligation so as to support an employee’s wrongful discharge claim.

      2. Babick v. Oregon Arena Corp., 333 Or. 401, 40 P.3d 1059 (2002).
         The defendant, operator of the Memorial Coliseum in Portland, hired the plaintiffs to provide security and medical assistance during concerts and other events at the Coliseum. At a Phish concert, the guards arrested or attempted to arrest certain patrons for engaging in assaultive behavior and illegal drug and alcohol possession. After the concert, all the security officers were dismissed, including those who were at the concert but did not make any arrests, and those who were employed at the time but did not work during that concert. The guards brought a claim for wrongful termination in violation of public policy, claiming that their termination was in retaliation for fulfilling an important societal duty, i.e. arresting lawbreakers. They based their claim on the arena management’s issuance of a statement that the arrests created a “marketing disaster” for the defendant.
         
         The Oregon Court of Appeals upheld the trial court’s dismissal of the claims of wrongful discharge, explaining that there was not substantial public duty that existed that required the guards to make arrests of concert patrons who were using illegal substances. The desire of a lawful and orderly society was not enough of a public duty to support a wrongful discharge claim.

      3. Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc., 334 Or 55 (2002).
         Dymock began working for Norwest Safety in 1981. In 1998, when Norwest ordered him to sign a non-solicitation agreement, Dymock refused and was terminated. Dymock brought suit against Norwest for wrongful discharge, claiming that the statute governing non-competition agreements (ORS 653.295(6)(c)), conferred an employment-related right not to sign them when they are presented at times other than permitted by the statute (i.e. upon commencing employment or in conjunction with a bona fide advancement). The Oregon Supreme Court disagreed, holding that the statute declares that non-competition agreements presented at times other than provided for in the statute are void and it bars courts from enforcing them. Refusal to sign non-compete agreement does not provide cause of action for wrongful termination.

      4. The California Court of Appeals held in two recent cases that termination for refusal to sign non-competition agreements could support a claim for wrongful termination in violation of public policy. In D’Sa v. Playhut, Inc., 85 Cal. App. 4th 927, 102 Cal. Rptr. 495 (2000), the plaintiff was terminated for failing to sign an employee confidentiality and non-competition agreement within a specified time period. The court held that an employer cannot make an employee’s acceptance of an agreement containing an unlawfully broad non-competition provision a condition of his continued employment, even if the agreement was drafted to be severable in order to comply with local law.
         
         Similarly, in Walia v. Aetna, Inc., 93 Cal. App. 4th 1213, 113 Cal. Rptr. 2d 737 (2001), the employee was terminated after refusing to sign a non-competition agreement presented to her after Aetna merged with another health care company. The court found that the agreement violated long-established California public policy that condemns the use of broad non-compete agreements. The plaintiff was entitled to recover on a wrongful termination claim and was awarded over $1MM in compensatory, emotional distress and punitive damages.

      5. Soltani v. Western and Southern Life Ins. Co., 258 F.3d 1038 (9th Cir. 2001).
         The 9th Circuit Court of Appeals held that, under California law, an employer is permitted to contract with its employees to shorten the statute of limitations on wrongful termination cases. Employees signed employment contracts which contained two provisions: (1) “You agree not to commence any action or suit relating to your employment with Western-Southern more than six months after the date of termination of such employment, and to waive any statute of limitation to the contrary,” and (2) “You agree not to commence any action or suit relating to your employment with Western-Southern until ten days after service upon the Chairman, President or Secretary of a written statement of the particulars and amount of your claim.”
         
         Several terminated employees sued the employer for wrongful termination in violation of public policy and for unfair business practices, arguing that the contractual provisions were unconscionable and therefore unenforceable. The 9th Circuit Court of Appeals held that the contractual shortening of the statute of limitations is valid under California law, citing several prior cases where such provisions had been upheld as not substantively unconscionable. The Court also held that the 10-day notice provision was unenforceable, in that the employer did not have a reasonable justification for such a restriction. Ten days was “simply not enough time for the company to investigate the factual basis of a claim, to attempt to settle claims without litigation or consider fiscal implications of potential litigation, or to take corrective action to prevent other claims.”

4. Intentional Infliction of Emotional Distress

   1. Definition
      
      To establish a claim for intentional infliction of emotional distress, a plaintiff must show that a defendant intended to inflict severe emotional distress on the plaintiff, that the defendant’s acts did in fact cause the plaintiff severe emotional distress, and that the underlying acts consisted of some extraordinary transgression of the bounds of socially tolerable conduct. Araujo v. General Electric Information Services, 82 F.Supp.2d 1161 (D.Or. 2000).
      
      A claim for intentional infliction of emotional distress can only be established where the conduct in question is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Id.

   2. Recent Case Law Developments

      1. MacCrone v. Edwards Center, Inc., 160 Or.App. 91, 980 P.2d 1156 (1999).
         A former caregiver at a center for the developmentally disabled brought suit against her employer for her supervisor’s failure to come to her aid after a client nearly strangled her to death during her first day on the job. The supervisor refused to come to the center to assist her, telling her that it was better that she remain there alone because his arrival at the center might aggravate the client further. When the client made further threats against her, MacCrone again called her supervisor and told him that she must leave the facility. Eventually he agreed and allowed her to leave.
         
         The trial court awarded MacCrone $1.25MM in punitive damages and $275,000 in compensatory damages, which was upheld on appeal to the Oregon Court of Appeals. The court determined that a jury could infer that by his refusal to return to the facility, the supervisor wished to inflict more emotional distress on MacCrone, knowing that she was already suffering emotional distress from the attack. The court also found that the supervisor’s actions were socially intolerable in the context of an employer-employee relationship where the employer had the ability to extricate the employee from a dangerous employment-related situation and failed to do so.

      2. Araujo v. General Electric Information Services, 82 F.Supp.2d 1161 (D.Or. 2000).
         After Araujo was terminated by GEIS, he filed several claims including one for intentional infliction of emotional distress. (See sections on defamation and fraudulent misrepresentation elsewhere in this manuscript). Araujo based this claim on the circumstances surrounding his termination, which occurred in an airport while he was preparing to leave for a vacation with his family. His family was present in the area although out of earshot of the discussion held between Araujo and the managers who terminated him.
         
         The court denied Araujo’s claim, stating that while the timing, location and proximity of Araujo’s family could render his termination more unpleasant, the conduct of the managers did not rise to the level of being truly egregious.

      3. Travis v. Knappenberger, 2000 WL 1742084 (D.Or. 2000).
         Four current or former legal secretaries or legal assistants brought suit against their employer for fraud, gross negligence, negligence, intentional infliction of emotional distress, wrongful discharge, and several wage and retaliation claims. Each of the plaintiffs alleged that she was engaged as an independent contractor, although the attorney employer retained the right to direct and control all work, furnished all equipment and supplies, compensated them on an hourly basis, and otherwise treated them as employees. The IIED complaint was based on several alleged acts of conduct by the attorney, including throwing documents and files at them, engaging in abusive language, imposing extremely burdensome workloads, kicking office furniture, setting unreasonable deadlines for work, etc.
         
         The District Court found that while most of the acts alleged by the plaintiffs did not rise to the level of severity necessary to sustain a claim for IIED, at least two allegations were allowed to proceed, namely, that the plaintiffs were required to bill clients for work not done, and that the attorney knowingly forced them to perform tasks which aggravated work-related injuries without a business reason for the tasks.

      4. Babick v. Oregon Arena Corp., 333 Or. 401, 40 P.3d 1059 (2002).
         The defendant, owner of the Memorial Coliseum in Portland, hired the plaintiffs to provide security and medical assistance during concerts and other events at the Coliseum. At a Phish concert, the guards arrested or attempted to arrest certain patrons for engaging in assaultive behavior and illegal drug and alcohol possession. The defendant immediately released those patrons who had been detained and publicly rebuked the guards for their arrests and attempted arrests. The guards brought suit against the arena management for intentional infliction of emotional distress.
         
         The guards were entitled to proceed with this claim because, according to the Oregon Court of Appeals, there was sufficient evidence that the owner of the arena exposed the guards to the threat of imminent physical harm by releasing intoxicated and violent concertgoers who had been detained by the guards. The Court further held that the arena owner not only released a vengeful mob against the guards, but in some sense added to the threatening atmosphere by interfering with the guards’ work and publicly rebuking them on the scene.

5. Negligent Hiring/Retention

   1. Definition
      
      An employer can be liable to a third party for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit if the employee tortiously injures the third party. To prevail upon this theory requires more than just the existence of an employment relationship. The employer must have had reason to believe that the employee, in performing job duties, posed an undue risk of harm to others.
      
      Independent contractors:
      
      Frequently litigated issues in this area involve whether the tortfeasor was indeed an employee of the employer or an independent contractor. The general rule is that an employer will only be held vicariously liable for actions of its employees performed in the course and within the scope of employment. This rule is subject to several exceptions, primarily dealing with the hiring of a contractor and the performance of inherently dangerous work, referred to as the “peculiar risk doctrine”:

      1. An employer is subject to liability for physical harm to third persons caused the his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons. Restatement 2d Torts, §411.

      2. A person who hires an independent contractor to do inherently dangerous work but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work can be liable in the contractor’s negligent performance of the work causes injury to others. Restatement 2d of Torts, §413.

      3. Even if the hiring person has provided for special precautions, the hiring person can be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor’s performance of the work causes injury to others. Restatement 2d of Torts, §416.

   2. Recent Case Law Developments

      1. Betty Y. v. Al-Hellou, 98 Wn. App. 146, 988 P.2d 1031 (1999).
         The parent of a teenage boy sought damages for negligent retention from the employer of a manual laborer who had sexually assaulted the teenager. Al-Hellou met the boy while renovating an apartment near the teenager’s house. The teenager helped Al-Hellou on several occasions by sweeping up the job site. Al-Hellou took the boy to his apartment after work one day and sexually assaulted him. The employer was aware that Al-Hellou had been convicted of child molesting in Texas.
         
         The Washington Court of Appeals held that the employer could not be held liable for Al-Hellou’s assault on the teenager because he was not hired to work with potential victims, the rape did not occur on the work premises, and the job duties did not facilitate or enable Al-Hellou to commit the rape. An employer may be liable for harm caused by an incompetent or unfit employee if (1) the employer knew, or in the exercise of ordinary care, should have known of the employee’s unfitness before the occurrence; and (2) retaining the employee was the proximate cause of the plaintiff’s injuries. The employer’s duty is limited to foreseeable victims and then only to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. “To hold the employer liable under the facts of this case would make every employer an insurer of the safety of any person who may have had initial contact with the employee on the premises of the employer.”

      2. Schaff v. Ray’s Land & Sea Food Co., 334 Or. 94, ___ P3d ___ (2002).
         Schaff was killed in a motor vehicle collision with Stockert, who was also killed in the accident. Stockert was driving a pickup truck with a refrigeration unit on the back, containing signage of the defendant. Stockert had a dealership agreement with Ray’s Land & Sea Food, which enabled him to purchase meat and fish at wholesale and resell the products to customers. The contract specified that Stockert was not an employee of Ray’s, that he had no authority to bind Ray’s to any contracts or obligations, and that he bore all his own costs, expenses, obligations and liabilities. The agreement also stated that Ray’s had no right or responsibility to dictate Stockert’s hours, methods of work, territory, prices or inventory.
         
         The Oregon Supreme Court applied the “right to control” test and held that, as a matter of law, Stockert was an independent contractor. Therefore, Ray’s could not be held liable for Schaff’s death.

      3. Camargo v. Tjaarda Dairy, 25 Cal. 4th 1235, 108 Cal. Rptr. 2d 617, 25 P.3d 1096 (2001).
         Camargo was an employee of Golden Cal Trucking, and Golden Cal was an independent contractor hired by Tjaarda Dairy to remove manure from the dairy farm and haul it away. Camargo was killed when his tractor rolled over as he was driving over a large mound of manure in a corral. His family filed suit against the dairy, claiming that it was negligent in hiring Golden Cal Trucking because they failed to determine whether Camargo was qualified to operate the tractor safely.
         
         The California Supreme Court held that, based on established case law in that state, that the hirer should not have to pay for injuries caused by the contractor’s negligent performance because the worker’s compensation system already covers those injuries. Employees of the contractor, as well as employees of the hirer, are not part of the definition of “third parties” under the peculiar risk doctrine.

      4. Brown v. Labor Ready Northwest, 113 Wash.App. 643, 54 P.3d 166 (2002).
         Brown was employed by CMI, a lumber distribution center. CMI contracted with Labor Ready to provide temporary laborers. Henson, one of Labor Ready’s staff assigned to CMI, claimed to be qualified to operate heavy equipment. CMI’s supervisor observed Henson operating a forklift, concluded he was capable, and assigned him to assist Brown in moving some lumber in the yard. A bundle of lumber fell off the forklift, pinning Brown underneath and causing serious injuries. Brown filed suit against Labor Ready on various theories of negligence, including negligent hiring/retention of an unqualified employee.
         
         The Washington Court of Appeals applied the “borrowed servant” doctrine, which states that a worker in the general employ and pay of one person may be loaned or hired to another. When the worker undertakes the work of the other, the worker becomes the servant of the other for the particular transaction, and the general employer may escape liability for the worker’s negligence. Because Henson was under the general control and supervision of Henson during the injury and he was operating CMI’s equipment on CMI’s premises, Brown could not sustain a claim against Labor Ready for vicarious liability. The court also dismissed her claim against Labor Ready on a direct negligence theory, stating that it was CMI, not Labor Ready, who was responsible for ensuring that Henson was properly trained and qualified to operate the forklift.

6. Other Negligence Issues
   
   Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Rest 2d Torts §282. Negligent conduct may consist either of an act or a failure to act when there is a duty to do so. Rest 2d Torts §282, cmt a.

   1. Negligent Misrepresentation
      
      Under certain circumstances, a defendant may be liable for economic loss suffered by a plaintiff who relies on a defendant’s representation negligently made. Such a claim must be based on a duty of care beyond the general common-law duty to avoid foreseeable harm. Ishikawa v. Delta Air Lines, Inc., 149 F.Supp.2d 1246, 1250 (D.Or. 2001).

   2. Workplace Injuries from Employer

      1. Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001).
         In Smothers, the injured worker had filed a claim for a lung condition under the Oregon Occupational Disease Law. The Workers’ Compensation Board upheld the denial of coverage on the ground that the worker had not proved that his work was the major contributing cause of his lung condition. After losing his occupational disease claim, the worker filed a negligence action against his former employer in court.
         
         The Oregon Supreme Court held that, to deny the worker the opportunity to sue his employer for his injuries would be a violation of the remedies clause of the state Constitution, which provides that “every man shall have remedy by due course of law for injury done him in his person, property or reputation.” Determining whether the exclusive remedy provisions of the Workers’ Compensation statute violate the remedies clause involves a case-by-case analysis subject to these basic guidelines:

         The worker cannot bring a further claim against the employer:

         • if the worker files a Worker’s Compensation claim and is provided benefits, or

         • if the claim is denied because the worker cannot prove that the work-related incident was a contributing cause of the alleged injury.

         The worker can proceed against the employer:

         • if the claim is denied because the worker failed to prove that the work-related incident was the major, rather than merely a contributing, cause of the injury.

      In its 2001 session, the Oregon legislature codified these rules in ORS 656.019.

   3. Liability for Intentional Injuries in the Workplace

      1. Panpat v. Owens-Brockaway Glass Container, Inc., 334 Or 342, ___ P3d ___ (2002).
         The Oregon Supreme Court held that the estate of an employee killed at job site could maintain a suit for wrongful death against employer for failing to provide adequate workplace security. The issue in Panpat was whether Workers Compensation provided the exclusive remedy to the decedent’s estate, thereby barring the plaintiff’s action against the employer. Two employees had met on the job and had conducted a romantic relationship. After the relationship ended, the male employee told his supervisor he was having difficulty adjusting to the break-up. The supervisor offered a shift transfer to the female employee, which she declined to accept. The male employee was eventually placed on medical leave, during which time he entered the manufacturing plant, shot and killed the female employee and then killed himself.
         
         The Court held that because the killing was motivated by the breakup of a romantic relationship, the decedent’s death did not “arise out of” her employment and therefore Worker’s Compensation does not provide an exclusive remedy. The plaintiff was free to pursue a variety of negligence claims against the employer, including failure to train and instruct security guards, failure to provide adequate security, failure to intervene, allowing entry to the assailant, and failure to direct the assailant to leave the premises.

      2. Padda v. Prison Health Services, Inc., 1999 WL 398005 (N.D. Cal. June 11, 1999).
         Padda worked as a nurse for Prison Health Services, Inc., (PHS), a company that provides medical services to inmates in Alameda County jails. A coworker allegedly approached Padda, shouting at her and pulling her identification badge from her clothing, causing her to lose her balance and fall. The coworker also grabbed her jail keys from her without her consent. Padda filed suit against both the coworker and PHS for assault and battery, among other claims.
         
         PHS argued that Workers Compensation preempted Padda’s claim since the coworker was acting within the course and scope of her employment when she confronted Padda. The court disagreed, stating that under California law, there is a specific exception to preemption for injuries “proximately caused by the willful and unprovoked physical act of aggression of the other employee.” Workers Compensation does not preempt claims based on batteries committed with the specific intent to injure.

      3. Under Oregon law, Workers’ Compensation will not cover any injury resulting from a deliberate act by the injured employee to cause the injury, however if the injury is caused by a deliberate act of the employer, the injured worker can claim under Workers Compensation as well as file a claim for damages over the statutory limits provided under the statutes. ORS 656.156. “Deliberate intention” to produce an injury requires specific intent to harm, not merely carelessness or gross negligence. Lusk v. Monaco Motor Homes, Inc., 97 Or.App. 182, 188, 775 P.2d 891 (1989); Davis v. United States Employers Council, Inc., 147 Or.App. 164, 172, 934 P.2d 1142 (1997).

Employer Suits Against Employees

Trespass to Chattels

1. Definition
   
   It is a trespass to interfere with the possession of personal property, to damage or destroy them, to make an unpermitted use of them, or to move them from one place to another.
   
   Trespass to chattels involves (1) a disturbance of the plaintiff’s possession; (2) which may be an actual taking, a physical seizing or taking hold of the goods, removing them from their owner, or by exercising a control or authority over them inconsistent with the owner’s possession. Intel Corporation v. Hamidi, 94 Cal. App. 4th 325, 330, 114 Cal. Rptr. 2d 244 (2001).
   
   The most common application is for a physical taking, even if momentary. However, any unlawful interference, however slight, with the enjoyment by another of his personal property is a trespass. Id. While this tort is considered by some to be arcane and out of use, it has reemerged as an important rule of cyberspace.

2. Recent Case Law Developments
   
   1) Intel Corporation v. Hamidi, 94 Cal. App. 4th 325, 114 Cal. Rptr. 2d 244 (2001).
   In this unusual case, Intel brought suit against a former employee who sent emails to between 8,000 and 35,000 of its employees via its proprietary internal email system. Intel attempted to block the mass emails and sent a request to Hamidi that he stop sending them, all to no avail. Intel and its employees spent significant amounts of time trying to block and remove Hamidi’s messages from its internal computer systems, which were governed by policies limiting use of the email system to company business.
   
   The trial court issued a permanent injunction stopping the emails based on a theory of trespass to chattels, which was upheld by the California Court of Appeals. Hamidi’s conduct was trespassory, in that he sufficiently disrupted Intel’s business by using its property. The Court of Appeals also rejected arguments that Hamidi’s conduct was protected speech under the First Amendment or the California Constitution’s analog to the First Amendment. The Intel email system is private property used for business purposes and is not transformed into a public forum merely because it permits some personal use by its employees.

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