Bright v. Cargill, Inc.

• Citation: 251 Kan. 387,837 P.2d 348
• Decision Date: 10 July 1992
• Docket Number: No. 66352,66352
• Parties: Samuel Ronald BRIGHT, Appellant/Appellee, v. CARGILL, INCORPORATED, Appellee, and Labor Source, Inc., Appellant.
• Court: United States State Supreme Court of Kansas

Page 348

837 P.2d 348

251 Kan. 387

Samuel Ronald BRIGHT, Appellant/Appellee, v. CARGILL, INCORPORATED, Appellee, and Labor Source, Inc., Appellant.

No. 66352.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file together with any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.

2. K.S.A. 44-503(a) extends the application of the Workers Compensation Act to certain individuals or entities who are not the immediate employers of the injured worker. Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 402, 729 P.2d 1214 (1986).

3. The following test is used to determine whether the work which gave rise to the worker's injury was a part of the principal's trade or business under K.S.A. 44-503(a): (1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal's "trade or business," and the injured employee's sole remedy against the principal is under the Workers Compensation Act. Hanna v. CRA, Inc., 196 Kan. 156, 159-60, 409 P.2d 786 (1966).

4. The legislature did not intend all principal contractors to be statutory employers because it utilized the limiting phrase "which is a part of his trade or business" in K.S.A. 44-503(a).

5. An employee of employer "A" may for a particular purpose, or on a particular occasion, also be the employee of employer "B," though the employee continues to be the general employee of "A" and is paid by "A." An employee directed or permitted by the employer to perform services for another may become the employee of such other in performing the services. The employee may become the other employer's employee as to some acts and not as to others.

6. The tests for determining whose employee a worker is at a particular time, i.e., which employer is vicariously liable for the employee's negligence, has been stated in various ways. Among the tests are: (1) Whose work was the worker doing at the particular time? (2) What person had authority to discharge the worker? (3) Who had the right to exercise supervision and control over the worker and to determine the manner in which the work was to be done rather than who actually exercised such control?

7. A worker may be the employee of two employers, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.

8. The modern rationale for vicarious liability is the enterprise justification concept. Under such a justification, the losses caused by an employee's tort are placed on the enterprise as a cost of doing business and on the employer for having engaged in the enterprise.

9. When a general employer "rents" an employee to a special employer, the general employer may be held vicariously liable for the employee's negligence unless the general employer relinquished sufficient control to establish abandonment. Whether the general employer relinquished sufficient control to establish abandonment is an issue of fact for the jury.

10. Instructions will be approved on appeal if they are substantially correct and the jury could not reasonably be misled by them.

11. A party may not assign as error the giving or failure to give an instruction unless the party objects before the jury retires to consider its verdict. The objection must distinctly state the matter to which the party objects and the grounds for such objection unless the instruction is clearly erroneous.

12. A trial court is not required to define every phrase used in an instruction unless, from a fair reading of the instructions as a whole, there is a likelihood the jury will be misled or left to speculate without further explanation.

13. The K.S.A.1991 Supp. 44-501 immunity from common-law liability granted to a special employee from suit by a K.S.A. 44-503(a) statutory employee is personal to the special employee and does not immunize the special employee's general employer from vicarious liability, where the general employer has no workers compensation liability for the statutory employee's injuries.

14. The K.S.A.1991 Supp. 60-19a01 $250,000 limit on damages for pain and suffering is not a measure of damages but a limit on the amount recoverable.

Appeal from Sedgwick district court; MONTIE R. DEER, judge. Affirmed in part, reversed in part, and remanded with instructions.

Ken M. Peterson, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, argued the cause, and Tim J. Moore, of the same firm, and J. Douglas McCalla, Roy A. Jacobson, Jr., and Philip White, Jr., of Spence, Moriarity & Schuster, Jackson, Wyo., were with him on the briefs, for appellant/appellee Bright.

Darrell L. Warta, of Foulston & Siefkin, Wichita, argued the cause, and Craig W. West, of the same firm, was with him on the brief, for appellee Cargill, Inc.

James Borthwick, of Blackwell Sanders Matheny Weary & Lombardi, Overland Park, argued the cause, and Mary E. Kenney, of the same firm, was with him on the briefs, for appellee/appellant Labor Source, Inc.

SIX, Justice:

This is a personal injury negligence action arising in a workers compensation setting. The case relates to the interplay between tort and workers compensation remedies within the relationships of statutory, special, general, and dual employers and employees.

The instant appeal involves two separate appellate alignments. The first postures plaintiff Samuel Bright against defendant Cargill, Incorporated (Cargill). The second relates to defendant Labor Source, Inc., (LSI) and Bright.

Samuel Bright's common-law negligence claim arises from an industrial accident in which he sustained serious injury. Bright and his wife, individually and on behalf of their three children, sued Cargill, LSI (LSI is now known as LSI Corporation--Temporary Services & Placement Agency), and others not involved in this appeal. The claims of Mrs. Bright and the children were dismissed. Cargill prevailed on a summary judgment motion. The case proceeded to trial. The remaining defendants, other than LSI, settled with Bright before the case was submitted to the jury. The jury found LSI 40% at fault and Cargill 60% at fault and assessed Bright's total damages at $5,730,500. The trial court reduced the pain and suffering award to $250,000 and entered judgment for Bright against LSI in the amount of $1,884,900.

Bright appeals the summary judgment granted to Cargill. LSI appeals the judgment entered against it on the jury verdict.

Our jurisdiction is under K.S.A. 20-3018(c) by transfer from the Court of Appeals to this court.

We hold that disputed material facts exist in the resolution of Cargill's K.S.A. 44-503 "statutory employer" status. Summary judgment in favor of Cargill is reversed. Cargill's statutory employer status is to be determined on remand.

We affirm Bright's judgment against LSI subject to a determination on remand that Cargill was Bright's statutory employer. If Cargill is not Bright's statutory employer, the judgment against LSI is reversed under Pizel v. Zuspann, 247 Kan. 54, 77, 795 P.2d 42 (1990).

The opinion will discuss the Bright-Cargill relationship followed by our analysis of the Bright-LSI issues.

Bright v. Cargill--The First Relationship

We are reviewing summary judgment. The tension is between statutory remedies under the Workers Compensation Act and a common-law negligence action.

The trial court ruled that one of the initial defendants, Cargill, was a K.S.A. 44-503 "statutory employer" and immune from suit under K.S.A.1991 Supp. 44-501, the exclusive remedy provision of the Kansas Workers Compensation Act.

The issue is whether the summary judgment record supports the "statutory employer" status extended to Cargill by the trial court.

Facts

Cargill owns and operates the Wichita terminal grain elevator where Bright's accident occurred. The storage and transportation of grain is one of Cargill's primary business operations. Cargill's C-house elevator is used for the storage of grain. A mechanical device called a leg drive is used to move grain in and out of the elevator. The use of the leg drive is the primary method of transporting grain into the C-house elevator; however, grain may also be transported into the elevator via the A- and B-house leg drives.

In early 1988, the C-house leg drive became inoperable. Cargill contracted with Southwest & Associates (Southwest) to remove and replace the leg drive. Southwest's field crews specialize in metal fabrication. The installation of the new leg drive required metal fabrication work.

The old C-house leg drive had been in place for approximately 30 years. Cargill's work order characterized the work as "abnormal replacement."

Bright, an experienced millwright and Southwest employee, was working on replacing the C-house leg drive when he was injured. Bright was riding down the descending side of the C-house manlift when a box of chains, which had been placed on a step on the ascending side of the manlift, traveled over the top of the manlift. The box struck Bright and caused him to fall approximately 25 feet to the floor of the grain elevator.

The box of chains was allegedly placed on the manlift by Gary Nanny, an employee of LSI. (Nanny's employment status was an issue at trial and is an issue in this appeal.) LSI is a temporary...