dissenting.
The majority begins and ends its analysis of the co-employee immunity issue with the truism that a trustee is legally different from the individual who serves in that capacity. However, the majority fails to offer any meaningful explanation of why that truism results in the conclusion that Gehlar is not immune under ORS 656.018(3).
Plaintiff acknowledges that Gehlar, the individual, is her fellow employee. She also appears to acknowledge that he would be immune under ORS 656.018(3) for injuries that she sustained in the building that he owns if he had held title to it in his individual capacity. That is true, even though his status as owner of the building in any capacity is legally distinct from his status as an employee of the company and a co-employee of plaintiff. The majority ignores those concessions and concludes that, technically, “defendant [Gehlar, as trustee,] is an entity distinct from Gehlar [as individual]”1 and, therefore, as trustee, he is not entitled to immunity. The majority reaches that conclusion without any explanation of why the additional fact that Gehlar owns the building as a trustee rather than individually divests him of immunity. Further, the majority does not *165consider the purpose of the immunity statute, nor does it discuss the existing authority on the issue.
The most pertinent case that the parties cite or that I find is Kimball v. Millet, 52 Wash App 512, 762 P2d 10 (1988), rev den 111 Wash 2d 1036 (1989), where the court construed the Washington equivalent of ORS 656.018(3), in an action by an employee against two co-employees who also owned the property on which the plaintiff was injured and who leased it to their mutual employer. The court said that the plaintiff
“attempts to [avoid the immunity statute] by characterizing the Millets not as employers or coemployees, but as landowners, thereby invoking the ‘dual persona’ doctrine, recognized but not applied in Carr v. Willamette Indus., Inc., 105 Wash. 2d 217, 220-21, 713 P.2d 92 (1986). Under this doctrine, an employer (and presumably a coemployee) may fall within the third person exception to immunity if, but only if, possessing a second persona so completely independent from and unrelated to the status of employer (or coemployee) that, by established standards, the law recognizes the second persona as a separate legal person.
‘ ‘The immunities conferred by the Act are not easy to avoid, * * * and Kimball cannot avoid them in this case. Our statute has always been construed stringently in eliminating claims against employers. * * * Theories that attempt to circumvent statutory immunities should be examined with the same stringency.
“Although in this field the courts of this state are seldom persuaded by decisions from other states, * * * it is nevertheless appropriate to consider how those courts have dealt with problems that are new to us. Having considered cases from other jurisdictions dealing with this issue, we are persuaded, by the reasoning of the New York Court ofAppeals, that where the facts supporting a third party/'dual persona’ claim are those under which a coemployee would be immune from suit under the Act, the putative defendant cannot be said to have a second persona so completely separate as to be recognized by law as a separate person for purposes of third-party liability for an on-the-job injury. Heritage v. Van Patten, 59 N.W.2d 1017, 466 N.Y.S. 2d 958, 453 N.E.2d 1247 (1983) * * * ” 52 Wash App at 513. (Emphasis in original; footnote and some citations omitted.)
Applying the Washington court’s analysis, in order for Gehlar to lose his immunity, his status as a trustee must have *166some bearing on the parties’ relationship that alters the reason for the immunity of co-employees. That is not the case. Gehlar, individually, is plaintiffs co-employee. The fact that he also owns the building as a trustee has nothing to do with plaintiff, nothing to do with her relationship to the work premises that he owns and nothing to do with her work relationship with him.
Plaintiff and the majority reason that Gehlar the trustee is “legally distinct” from Gehlar the individual; therefore, because only the latter is a co-employee and only the former is the named defendant, there can be no immunity under ORS 656.018(3). However, the sharp line that plaintiff and the majority would draw between the two “entities” has no foundation in authority. In the first place, it would be more accurate to say that the trust, not the trustee, is the legal entity and that the trustee stands in a defined relationship and has responsibilities attendant to that entity. Plaintiffs theory is not that the trust is liable, but that the trustee is personally liable to her by reason of his negligence in connection with the maintenance of the business premises.
Plaintiff relies on Restatement (Second) Trusts, § 264 (1959):
“The trustee is subject to personal liability to third persons for torts committed in the course of the administration of the trust to the same extent that he would be liable if he held the property free of trust.” (Emphasis supplied.)
Rather than supporting plaintiff, the Restatement illustrates the circularity of her argument. If Gehlar held the property free of trust, he would be immune. His personal liability as trustee under the quoted provision can be no greater.
In sum, plaintiffs argument, and the majority’s acceptance of it, make co-employee immunity contingent on the absence of any status or relationship between the parties other than that of fellow employees. The policy underlying ORS 656.018(3) is strong. I cannot agree that the legislature intended that that immunity could be circumvented by meaningless distinctions of the kind on which plaintiffs case depends.
I would affirm and, therefore, I respectfully dissent.
The issue cannot be avoided simply by calling Gehlar the trustee “defendant” and Gehlar the individual “Gehlar,” as the majority does. Indeed, it is plaintiffs attempt to make that distinction that gives rise to the issue.