Bock v. Vigor Works LLC

724 October 8, 2026 No. 43 IN THE SUPREME COURT OF THE STATE OF OREGON Justin BOCK, Respondent on Review, v. VIGOR WORKS LLC, an Oregon limited liability company; and Vigor Industrial LLC, an Oregon limited liability company, Petitioners on Review, and LIITAA DEVELOPMENT, LLC, an Oregon limited liability company, Defendant-Respondent. (22CV33415) (CA A183526) (SC S072492) En Banc On review from the Court of Appeals.* Argued and submitted September 10, 2026. Noah S. Jaffe, Nicoll, Black, Altenbrun and Feig, Seattle, Washington, argued the cause and filed the briefs for peti- tioners on review. Also on the briefs was Chris P. Reilly. Hannah J. Shilling, Pickett, Dummigan, Weingart LLP, Portland, argued the cause for respondent on review. J. Randolph Pickett filed the brief. Also on the brief were Hannah J. Shilling and Peter O. Hansen, Law Offices of Peter O. Hansen, Portland. Erin E. Roycroft, Stoll, Stoll, Berne, Lokting, & Shlachter, PC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. PER CURIAM ______________ * Appeal from Multnomah County Circuit Court, Lynn R. Nakamoto, Senior Judge. 343 Or App 514, 580 P3d 353 (2025) Cite as 375 Or 724 (2026) 725 The petition for review is dismissed as improvidently allowed. DeHoog, J., concurred and filed an opinion, in which Garrett, J., joined. 726 Bock v. Vigor Works LLC PER CURIAM The petition for review is dismissed as improvi- dently allowed. DeHOOG, J., concurring. In this case, the Court of Appeals held, as to plain- tiff’s claims against defendants Vigor Works LLC and Vigor Industrial LLC (“Vigor”) under the Employer Liability Law (ELL), ORS 654.305 to 654.336, that disputed issues of material fact precluded an award of summary judgment to defendants. Bock v. Vigor Works LLC, 343 Or App 514, 520, 580 P3d 353 (2025). Relying on case law from this court, including Yeatts v. Polygon Northwest Co., 360 Or 170, 379 P3d 445 (2016), the Court of Appeals explained that defen- dants, who did not employ plaintiff, could be held liable under the ELL as plaintiff’s “indirect employer” if, as rel- evant here, defendants had “ ‘retain[ed] the right to control the manner or method in which the risk-producing activity was performed’ ” by plaintiff’s direct employer. Bock, 342 Or App at 519 (quoting Woodbury v. CH2M Hill, Inc., 335 Or 154, 160, 61 P3d 918 (2003)). The court further explained that, under that case law, plaintiff could establish the requi- site retained right to control by identifying “some source or legal authority for that perceived right or present[ing] evi- dence from which a retained right of control can be inferred.” Id. at 519 (internal quotation marks omitted). In concluding that the summary judgment record, when viewed in the light most favorable to plaintiff, raised disputed issues of material fact, the court relied both on defendants’ express contractual relationship with plain- tiff’s direct employer, Fire Systems West (FSW), and on deposition testimony in the record. Id. at 520. Specifically, the Court of Appeals noted that (1) defendants’ “Purchase Order” concerning FSW’s services required FSW to ensure that its employees complied with defendants’ “safety and security guidelines” and that FSW’s work on behalf of defendants was expressly “subject to inspection” throughout FSW’s performance, and (2) there was “deposition testimony from which the jury could find that FSW would have fol- lowed at least certain ‘directives’ from Vigor about the work Cite as 375 Or 724 (2026) 727 it was hired to do if it was asked to do so by Vigor[.]” Id. Given that evidence, the court reasoned, a jury could find that “FSW employees would have followed the directives of Vigor regarding the work performed.” Id. at 521. That, the court concluded, would suffice to establish that defendants had retained the “ ‘right to control the manner or method in which the risk producing activity was performed.’ ” Id. at 520 (quoting Yeatts, 360 Or at 172). In its decision to dismiss the petition for review as improvidently allowed, I do not understand this court to sug- gest that the summary judgment record and related infer- ences identified by the Court of Appeals would necessarily satisfy the applicable standard for “indirect” employers under the ELL. And reasonable minds may question whether they would. For one thing, the provisions of the “Purchase Order” relied on by the Court of Appeals differ from those that this court in Yeatts held were sufficient to overcome summary judgment in that case. And for another, even assuming that the “directives” that FSW employees would have followed are the sort that can make a nonemployer an “indirect” employer, there remains the question whether the fact that they would have followed defendants’ directives if asked to do so means, under our case law, that defendants had retained the right to control, i.e., a retained right to make FSW and its employees do what defendant told them to do. But, as noted, I do not understand this court’s deci- sion here to reflect an opinion as to those matters, nor do I understand it to necessarily endorse the Court of Appeals’ application of Yeatts, Woodbury, or the ELL more generally. Rather, I understand the court to view the summary judg- ment record to be susceptible of various understandings, some of which might support plaintiff’s theory of liability under the ELL, the merits of which would best be evaluated on a more settled record. I further understand the poten- tial opportunity to evaluate and clarify that theory to be the very reason that prompted the court to accept review. With those understandings in mind, I concur in the court’s decision to dismiss the petition for review as improvidently allowed. Garrett, J., joins in this concurring opinion.