Zirkle v. Winkler

• Decision Date: 22 May 2003
• Docket Number: No. 30787.,30787.
• Citation: 585 S.E.2d 19,214 W.Va. 19
• Court: West Virginia Supreme Court
• Parties: Melissa Faith ZIRKLE, Individually and as parent of Rickie Daniel Hathaway, an infant, Plaintiff Below, Appellant, v. Robert Dale WINKLER and Clarksburg Publishing Company Morning Paper, Appellee.

585 S.E.2d 19

214 W.Va. 19

Melissa Faith ZIRKLE, Individually and as parent of Rickie Daniel Hathaway, an infant, Plaintiff Below, Appellant, v. Robert Dale WINKLER and Clarksburg Publishing Company Morning Paper, Appellee.

No. 30787.

Supreme Court of Appeals of West Virginia.

Submitted February 11, 2003.

Decided May 22, 2003.

LaVerne Sweeney, Esq., Grafton, West Virginia, Attorney for Appellant.

Boyd L. Warner, Esq., Waters, Warner & Harris, Clarksburg, West Virginia, Attorney for Appellee Clarksburg Publishing Company Morning Paper.

PER CURIAM:

In this appeal from the Circuit Court of Harrison County, the circuit court held that a newspaper company could not have any liability to pay compensation for injuries caused by a newspaper delivery driver, because the driver was an "independent contractor." We reverse and hold that the issue of the newspaper's possible liability is a jury matter.

I. Facts & Background

This case arises from a February 9, 1999 automobile accident in which a motor vehicle that was being driven by Melissa Zirkle, who is the appellant in this Court and the plaintiff below, collided with a motor vehicle that was being driven by Robert Winkler.

At the time of the accident, Mr. Winkler was delivering Clarksburg Exponent newspapers—which are published by the Clarksburg Publishing Company, the appellee in this Court and defendant below—to persons who subscribe to that newspaper. Mr. Winkler apparently delivered approximately 200 newspapers each day on what the company calls a "motor route" carrier delivery route, and for performing this work Mr. Winkler made about $850.00 a month. (See note 8 infra regarding further details of his compensation.)

On January 17, 2001, Ms. Zirkle (individually and on behalf of her child, who was a passenger in the car she was driving) filed a lawsuit against Mr. Winkler in Harrison County, seeking compensation for medical bills and personal injuries that she and her child allegedly suffered in the accident; she claimed that Mr. Winkler's negligence caused the accident. She also sued the appellee Clarksburg Publishing, asserting that the appellee was liable for the results of Mr. Winkler's alleged negligence under the doctrine of respondeat superior.¹ Clarksburg Publishing made a motion for summary judgment, asserting that the company as a matter of law could have no liability for the results of Mr. Winkler's alleged negligence—because, the appellee claimed, Mr. Winkler was, at the time of the accident, an "independent contractor." After a period of discovery, on November 14, 2001, the trial court granted Clarksburg Publishing's motion for summary judgment. From this order by the circuit court, Ms. Zirkle appeals. We discuss the other pertinent facts infra.

II. Standard of Review

This appeal arises from the circuit court's granting of summary judgment, and our review is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially, and must determine whether "it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). As with the circuit court, we "must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion;" that party, in the instant case, is the appellant. Painter v. Peavy, 192 W.Va. at 192, 451 S.E.2d at 758.

III. Discussion

The doctrine of respondeat superior has a longstanding basis in Anglo-American law. Syllabus Points 3 and 4 (in part) of O'Dell v. Universal Credit Co., 118 W.Va. 678, 191 S.E. 568 (1937) state the doctrine as follows:

The legal relationship of master and servant² is commonly understood to arise when one person subordinately serves another, both consenting thereto.... The master is answerable to a stranger for the negligent act of a person employed by the [master or] master's authorized agent, if the act is within the scope of the person's employment.³

In Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931), Justice Hatcher undertook a scholarly review of the origin and purpose of the respondeat superior doctrine. He concluded that because the "rule combines in its support both principles of natural justice and public policy, we are of the opinion that it should be liberally applied in favor of those who invoke it." 110 W.Va. at 131, 157 S.E. at 174. We see no reason to stray from this well-reasoned conclusion.

Of similarly longstanding lineage is the "independent contractor" exception to the doctrine of respondeat superior. The parameters of that exception were stated in the Syllabus of Walton v. Cherokee Colliery Co., 70 W.Va. 48, 73 S.E. 63 (1911) as follows:

Generally, if one let work, lawful within itself, to a contractor and retain no control over the manner of its performance, he is not liable on account of negligence of the contractor or his servants. But, if the work is intrinsically dangerous, or is of such character that injury to third persons, or to their property, might be reasonably expected to result directly from its performance, if reasonable care should be omitted, the employer is not relieved from liability by delegating the performance of the work to an independent contractor.

In Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 627, 225 S.E.2d 218, 222 (1976), this Court stated the respective burdens of proof regarding respondeat superior liability and the independent contractor exception:

It is always incumbent upon one who asserts vicarious [respondeat superior] liability to make a prima facie showing of the existence of the relation of master and servant or principal and agent or employer and employee. However, once a prima facie showing has been made, it is incumbent upon one who would defeat liability on the basis of an independent contractor relationship to show such fact.

We also stated in Sanders that:

[t]he defense of "independent contractor" is one which defendants have long favored as a means of denying liability for acts which are done by those whom they neither control nor have a right to control. However, over the years, the defense has proved to be a slender reed and one which the courts have found difficult to apply.

* * * * * *

In the intervening years, the general rule has remained intact, but its efficacy as a defense has been so frequently questioned as to lead the Court of Appeals in Summers v. Crown Construction Company, 453 F.2d 998, 999 (4th Cir.1972), to state:

"So riddled is the rule insulating a general contractor from an independent contractor's negligence that one court has aptly noted: `Indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions."' [Citation omitted.]

This Court, like other courts, has established its catalog of "exceptions" to the general rule. Many of these "exceptions" use different words to convey the same meaning. All, however, are merely calculated to narrow the scope of the independent contractor defense and prevent its abuse as a mere convenient device for the evasion of responsibility and liability. For example, this Court has stated that the rule does not apply to relieve one who has employed an independent contractor from liability for the breach of a duty imposed upon him by law in behalf of the safety of the public, or for the breach of a nonassignable duty, or for the breach of an inescapable duty owed the public. [Internal citations omitted.]

Similarly, the rule does not apply to relieve one who has employed an independent contractor from liability for an injury if the injury might have been anticipated as a direct or probable consequence of the performance of the work if reasonable care is omitted; or if the work is intrinsically dangerous in character; or if a public authority has granted a right to engage in dangerous activities which right is denied the general public. [Internal citations omitted.]

Other cases reject the independent contractor defense by reason of the law's imposition of a continuing duty to exercise reasonable care or to put a stop to any unnecessary or dangerous practices. [Citations omitted.]

159 W.Va. at 625-627, 225 S.E.2d at 221-222 (1976).⁴

In the instant case, on February 4, 1999, Mr. Winkler signed a two-page standard form document, prepared by the appellee, that described Mr. Winkler's duties, set his method of compensation, and stated that Mr. Winkler "is and shall be an Independent Contractor."⁵

This Court has recognized that the mere fact that work is being done "pursuant to a contract" establishes the independent contractor exception to respondeat superior, and that language or terms that may be used to label a business or working relationship— whether in writing or otherwise—are not determinative on the issue of whether an "independent contractor" exception is established for the purpose of relieving an employing party from potential respondeat superior liability. As we stated in Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806 (1920): "[p]roving that the work was being done under a contract does not constitute the defense of independent contractor."⁶

In C & H Taxi Co. v. Richardson, 194 W.Va. 696, 461 S.E.2d 442 (1995), this Court considered a claim by a taxi company that the company did not have the responsibility for paying workers' compensation premiums for the benefit of the drivers who drove the company's taxicabs. The driver and company had executed a vehicle lease that clearly denominated the driver as an "independent contractor" and repudiated any master-servant relationship.

We held in C & H that the taxicab company exercised significant powers of control over the driver, including the right to...