// :: AM CV 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH TIM NAY aka THOMAS W. NAY, JR., Personal Representative for the Estate of Andrew C. Lane, an Oregon resident, v. Plaintiff, LANDA NORTHWEST, INC., an Oregon corporation; AMERICAN HONDA MOTOR CO., INC., a foreign corporation; SUPERIOR HOME MAINTENANCE LLC, an Oregon limited liability company; HOMEMASTERS FRANCHISE LLC, an Oregon limited liability company; and NW HOME MAINTENANCE LLC, an Oregon limited liability company; Defendants. Plaintiff alleges: Multnomah County, Oregon. PAGE 1 COMPLAINT Case No. PARTIES & VENUE 1. COMPLAINT (Product Liability; Negligence; ORS Chapter A; Wrongful Death; Employer Liability Law (Amount of Prayer:$,000,000 CLAIM NOT SUBJECT TO MANDATORY ARBITRATION (Pursuant to UTCR.00 Jury Trial Requested Filing Fee Under Or Laws, ch., sec. ; ORS.0(1(d: $ Tim Nay aka Thomas W. Nay, Jr. is the duly appointed personal representative for the Estate of Andrew C. Lane and the personal representative s principal office is located in
. Defendant Landa Northwest, Inc. ( Landa is an Oregon corporation, with its principal place of business in Multnomah County, Oregon, at 1 NE Marx Street, Portland, Oregon. Landa conducts regular, sustained business activity in Multnomah County, has an office for the transaction of business in Multnomah County, and has an agent authorized to receive service of process in Multnomah County, Oregon.. Defendant Superior Home Maintenance LLC ( Superior is Oregon limited liability company with its principal place of business at SE Richey Rd., Boring, OR 00. Superior conducts regular, sustained business activities in Multnomah County, Oregon.. Defendant Homemasters Franchise LLC ( Homemasters is an Oregon limited liability company with its principal place of business at SW Bonita Rd., Tigard, OR. Homemasters conducts regular, sustained business activity in Multnomah County, Oregon.. Defendant NW Home Maintenance LLC ( NW Home is an Oregon limited liability company with its principal place of business at SW Bonita Rd., Tigard, OR. NW Home conducts regular, sustained business activity in Multnomah County, Oregon.. Defendant American Honda Motor Co., Inc. ( Honda is a foreign corporation with its principal place of business in Torrance Blvd., Torrance, CA 001. Honda conducts regular, sustained business activity in Multnomah County, Oregon. PAGE COMPLAINT
COMMON ALLEGATIONS. At all material times, Andrew C. Lane was an employee of Superior.. In, Andrew Lane is diagnosed with Irritable Bowel Syndrome ( IBS. IBS is a chronic condition whose symptoms require frequent, urgent use of toilet facilities to defecate.. During Andrew Lane s employment with Superior, both Superior and one or more agents knew of Andrew Lane s IBS diagnoses and need to frequently use toilet facilities.. On May,, Andrew Lane and two other Superior employees were ordered to drive a Homemasters box van to a residential home located in Sandy, Oregon. That day they pressure washed and cleaned gutters.. The Homemasters box van is equipped with a gas-powered pressure washer permanently installed in the rear compartment of the van.. Landa sold and installed the pressure washer, which has a Honda GX0 -stroke engine.. On May,, Superior does not provide toilet facilities for its employees. Superior does not make arrangements with the work site homeowners for Superior employees to use toilet facilities on the premises. The work site does not have toilet facilities accessible to Andrew Lane. The nearest off-site toilet, at a commercial establishment, is approximately eight minutes by car from the work site. Andrew Lane does not have personal PAGE COMPLAINT
transportation available to this facility.. On several prior occasions, Superior instructed Andrew Lane and other employees to use a bucket in the Homemasters box van when at a work site without a publically accessible toilet. Superior knew that Andrew Lane had used a bucket in the rear compartment of the Homemasters box van as a toilet on prior occasions at other work sites.. On May,, with the gas-powered pressure washer running, Andrew Lane enters the rear compartment of the Homemasters box van to use the provided bucket as a toilet. He closes the doors. Carbon monoxide from the running pressure washer fills the compartment. Carbon monoxide exhaust poisons Andrew Lane until he dies.. At all material times, Superior was an actual agent or apparent agent of Homemasters. Homemaster retained the right to control Superior s actions and the specific tortious or unlawful conduct detailed in this complaint. FIRST CLAIM FOR RELIEF (Landa Strict Product Liability/ORS Chapter 0. Plaintiff incorporates paragraphs 1 to above.. Landa s gas-power pressure washer unit is defective and unreasonably dangerous beyond the extent contemplated by ordinary users, in one or more of the following ways: a. Landa s gas-power pressure washer works in enclosed spaces in the absence of proper ventilation. b. Landa s gas-power pressure washer does not have a carbon monoxide PAGE COMPLAINT
detector. c. Landa s gas-power pressure washer does not have an automatic shutoff device triggered by dangerous carbon monoxide levels. d. Landa s gas-power pressure washer s labeling fails to warn consumers to not use the product in an enclosed space without proper ventilation. e. Landa s gas-power pressure washer s instructions fail to advise consumers not to use the product in an enclosed space without proper ventilation. f. Landa s gas-power pressure washer s labeling fails to warn users to not close the box van s door while using the product. g. Landa s gas-power pressure washer s instructions fail to advise consumers not to close the box van s door while using the product.. Andrew Lane received the gas-powered pressure washer unit without substantial change in the condition in which it was sold.. The unreasonably dangerous and defective condition of Landa s gas-power pressure washer unit caused or substantially contributed to Andrew Lane s carbon monoxide poisoning and death. SECOND CLAIM FOR RELIEF (Landa Negligence/Wrongful Death. Plaintiff incorporates paragraphs 1 to above.. Landa committed wrongful acts or omissions in one or more of the following ways: a. Landa s installation of a gas-power pressure washer in an enclosed van PAGE COMPLAINT
unreasonably exposed users to dangerous levels of carbon monoxide. b. Landa knew or reasonably should have known that its gas-powered pressure washer created an unreasonably dangerous environment when used as installed. c. Landa failed to instruct or warn consumers that the gas-powered pressure washer should not be operated with the van doors closed. d. Landa failed to instruct or warn consumers that the gas-powered pressure washer should only be operated in well-ventilated spaces.. The negligent acts and omissions alleged above caused or were a substantial factor in causing Andrew Lane s carbon monoxide poisoning and death. THIRD CLAIM FOR RELIEF (Honda Strict Product Liability/ORS Chapter 0. Plaintiffs incorporate paragraphs 1 to above.. Honda s GX0 -stroke engine is defective and unreasonably dangerous beyond the extent contemplated by ordinary users, in one or more of the following ways: a. Honda s GX0 -stroke engine works in enclosed spaces in the absence of proper ventilation. b. Honda s GX0 -stroke engine does not have a carbon monoxide detector. c. Honda s GX0 -stroke engine does not have an automatic shutoff device triggered by dangerous carbon monoxide levels. d. Honda s GX0 -stroke engine s labeling inadequately warns consumers to not use the product in an enclosed space without proper ventilation. PAGE COMPLAINT
e. Honda s GX0 -stroke engine s instructions inadequately advise consumers not to use the product in an enclosed space without proper ventilation.. Honda specifically markets the GX0 -stroke engine for use in pressure washers.. Andrew Lane received the Honda GX0 -stroke engine unit without substantial change in the condition in which it was sold.. The unreasonably dangerous and defective condition of the Honda GX0 -stroke engine caused or was a substantial factor is causing Andrew Lane s carbon monoxide poisoning and death. FOURTH CLAIM FOR RELIEF (Honda Negligence. Plaintiff incorporate paragraphs 1 to above. 0. Honda committed wrongful acts or omissions in one or more of the following ways: a. Honda failed to properly warn and instruct purchasers of the dangers associated with using the GX0 -stroke engine as a constituent part within products designed for use in enclosed spaces. b. Honda failed to design the GX0 -stroke engine to prevent harm associated with its foreseeable use in inadequately ventilated spaces. 1. The negligent acts and omissions alleged above caused or were a substantial factor in causing Andrew Lane s carbon monoxide poisoning and death. PAGE COMPLAINT
FIFTH CLAIM FOR RELIEF (Superior & Homemasters Battery/ORS.. Plaintiffs incorporate paragraphs 1 to 1 above.. Superior exposed Andrew Lane to known deadly gases.. Andrew Lane did not consent to being exposed to know deadly gases.. Superior acted with the deliberate intention to cause injury or death to Andrew Lane by requiring him to enter a confined space filled with known deadly gases.. Because Superior acted with the deliberate intention to cause injury or death, Superior is liable for its actions irrespective of Oregon s Workers Compensation Law, ORS Chapter. SIXTH CLAIM FOR RELIEF (Superior, Homemasters, & NW Homes Statutory Tort for Unlawful Employment Practices under ORS Chapter A. Plaintiff incorporates paragraphs 1 to above.. Andrew Lane had, had a record of having, or was regarded as having a physical impairment that substantially limited his ability to control his bowels, a major life function.. Superior, Homemasters, and NW Home, all employers of Andrew C. Lane for PAGE COMPLAINT
purposes of ORS A, committed one or more unlawful employment practices against Andrew Lane based upon his disability, including but not necessarily limited to, by limiting, segregating, or classifying him through its conduct and policy of requiring Andrew Lane to defecate in a bucket, in the back of a work van. Superior s conduct was demeaning, debasing, and dehumanizing and affected Andrew Lane s opportunities and status as an employee. Ultimately, Superior s unlawful employment practices led to Mr. Lane s carbon monoxide poisoning and death. 0. Superior, Homemasters, and NW Home violated ORS Chapter A by failing to make reasonable accommodations available to Andrew C. Lane. SEVENTH CLAIM FOR RELIEF (Superior, Homemasters, & NW Home Employer Liability Law/ORS.0 1. Plaintiff incorporates paragraphs 1 to 0 above.. At the time of his death, Andrew Lane engaged in work that involved risk or danger to him.. Homemasters or NW Home or both engaged in a common enterprise with Superior and the conduct of Homemasters or NW Home or both created the risk or danger that ultimately resulted in Andrew Lane s carbon monoxide poisoning and death.. Homemasters or NW Home or both controlled or retained the right to control the manner or method in which the risk-producing activity was performed that ultimately resulted in Andrew Lane s carbon monoxide poisoning and death. PAGE COMPLAINT
. Superior, Homemasters, NW Home, and each of them, violated the following safety codes, promulgated as minimum standards for the safety and protection of others, including Andrew Lane: (a OAR -00-0(1(c: Requiring limiting exposure to certain substances including carbon monoxide. (b OAR -00-0(: Requiring administrative or engineering controls whenever feasible. When such controls are not feasible to achieve full compliance, requiring protective equipment or other protective measures be used to keep the exposure of employees to air contaminants. (c OAR -001-00(1(a: Requiring employers to see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice that they are authorized to use or apply. (d CFR.1(c(1(i: Requiring toilet facilities be provided in all places of employment. (e ORS.0: Requiring employers provide place of employment which is safe and healthful for employees.. Superior, Homemasters, NW Home, and each of them failed to use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices. Their failures caused or were a substantial factor in causing Andrew Lane s carbon monoxide poisoning and death. PAGE COMPLAINT
DAMAGES. As a result of the conduct of Defendants, and each of them, Plaintiff suffered economic harms, including but not necessarily limited to medical and funeral expenses, pecuniary and income losses to Plaintiff s estate and family, in the amount of $1,000,000.. As a result of the conduct of Defendants and each of them, Decedent Lane s family has and is experiencing pain, suffering, loss of society, companionship, services, and other noneconomic harms, in the approximate amount of $,000,000.. As a result of the unlawful employment practices as set forth above, Plaintiff seeks all available legal and equitable remedies under ORS Chapter A, including but not necessarily limited to, compensatory damages in the amount of $1,000,000 and injunctive relief that is fair, just and equitable 0. Plaintiff is entitled to recover reasonable attorneys fees and costs, including but not limited to expert witness fees, under ORS A.(1. 1. Plaintiff is entitled to recover prejudgment interest pursuant to ORS.0(1(a.. Plaintiff reserves the right to amend this Complaint as required by ORS 1.. PAGE COMPLAINT
WHEREFORE, Plaintiffs pray for judgment as follows: 1. Economic damages in the amount of $1,000,000, subject to amendment at or before trial;. Noneconomic damages in the amount of $,000,000, subject to amendment at or before trial;. Compensatory damages for Unlawful Employment Practices in the amount of $1,000,000, subject to amendment at or before trial;. Injunctive relief for Unlawful Employment Practices;. Prejudgment interest pursuant to ORS.0(1(a;. Reasonable attorney fees associated with Unlawful Employment Practices claims;. For Plaintiff s costs and disbursements incurred herein; and,. For such further and other relief as the Court deems just, proper and equitable. Dated this th day of May, D AMORE LAW GROUP, P.C. By: /s/ Nicholas A. Kahl Thomas D Amore, OSB # Nicholas A. Kahl, OSB # Attorneys for Plaintiff Trial Attorneys: Thomas D Amore, OSB # D AMORE LAW GROUP, P.C. 0 Galewood Street, Suite 0 Lake Oswego, OR 0 David Penoyer, OSB #000 Penoyer Law Office LLC Galewood St Lake Oswego OR 0 PAGE COMPLAINT