Burdette v. Columbia Gas Transmission Corp., 23284
| Decision Date | 06 December 1996 |
| Docket Number | No. 23284,23284 |
| Court | West Virginia Supreme Court |
| Parties | James BURDETTE, Plaintiff Below, Appellant, v. COLUMBIA GAS TRANSMISSION CORPORATION and Shafer Contracting Company, Defendants Below, Appellees. |
Syllabus by the Court
1. "A motion for summary judgment should be granted only when 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." Syl. pt. 3, Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).
2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
3. "The owner or occupier of premises owes to an invitee such as a non-employee workman or an independent contractor the duty of providing him with a reasonably safe place in which to work and has the further duty to exercise ordinary care for the safety of such persons." Syl. pt. 2, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
4. Syl. pt. 2, Henderson v. Meredith Lumber Company, 190 W.Va. 292, 438 S.E.2d 324 (1993).
5. "When the owner of a place of employment provides a reasonably safe workplace and exercises no control thereafter, the owner has complied with the responsibilities imposed under W.Va.Code 21-3-1 [1937]." Syl. pt. 3, Henderson v. Meredith Lumber Company, 190 W.Va. 292, 438 S.E.2d 324 (1993).
J. Michael Ranson, Cynthia Morrone Salmons, Ranson Law Offices, Charleston, for Appellant.
Mary H. Sanders, Jenny A. Bonham, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, for Appellee Columbia Gas Transmission Corporation.
This action is before this Court 1 upon an appeal from the final order of the Circuit Court of Kanawha County, West Virginia, entered on July 11, 1995. The appellant, James Burdette, an employee of Shafer Contracting Company, was injured while removing trees from a right-of-way owned by the appellee, Columbia Gas Transmission Corporation. Pursuant to the final order, the circuit court granted summary judgment for the appellee.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court is of the opinion that, although the appellant was a non-employee worker with regard to the appellee, a genuine issue of material fact exists as to whether the appellee was exercising control of the appellant's work at the job site, and, if so, whether the appellee breached the duty of ordinary care concerning the appellant's safety. Accordingly, we reverse the summary judgment and remand this action to the circuit court for further proceedings.
In March 1988, the appellee and Shafer Contracting Company entered into a written contract concerning the installation of underground pipeline on various right-of-way properties owned by the appellee. Pursuant to the contract, Shafer Contracting Company was employed to install the pipeline and to remove the trees and brush from the right-of-way properties. A subsequent addendum to the contract provided that Shafer Contracting Company would perform such work with regard to the appellee's right-of-way at Patterson Fork, near Clendenin, West Virginia. That right-of-way was known as job site X54, well no. 7154. Throughout the contractual relationship between the appellee and Shafer Contracting Company, the appellee provided the material to be installed in the ground, and Shafer Contracting Company provided the tools and equipment necessary to complete the work.
Except for the sharing of skills acquired through experience, the employees of Shafer Contracting Company were largely untrained in the work of removing trees. The incident in question occurred on November 30, 1992. On that day, the appellant and his co-worker, John R. Mitchell, cut a number of trees at job site X54 and then moved to another area thereof where the trees were "bigger and taller." According to the deposition testimony, one such tree, 20 to 30 feet tall, was cut, and the appellant began trimming its branches. While trimming the fallen tree, the appellant was struck by another tree, 30 to 40 feet tall, cut by Mr. Mitchell. Although the latter tree had been leaning away from the appellant, it was caught in a sudden gust of wind when cut and fell in the appellant's direction. As a result of the accident, the appellant sustained a broken leg and various other injuries.
Frederick J. Ellis, an inspector for the appellee, was present at job site X54 on November 30, 1992, although not in the immediate vicinity of the accident. Ellis, present at the site on a daily basis, was employed by the appellee to assure that Shafer Contracting Company was complying with the March 1988 contract. His duties included observing the digging of trenches and the installation of the pipeline therein and, in addition, making sure that Shafer employees kept trees from falling beyond the limits of the appellee's right-of-way. 2
In March 1993, the appellant filed a complaint in the Circuit Court of Kanawha County against the appellee and Shafer Contracting Company seeking damages concerning the November 30, 1992, accident. Following extensive discovery, the appellee moved for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. In particular, the appellee asserted that it exercised no control of the appellant's work at job site X54 and that, accordingly, the appellant could not, as a matter of law, establish liability. The circuit court conducted a hearing upon that motion in June 1995. As reflected in the final order of July 11, 1995, the circuit court granted summary judgment for the appellee and dismissed the appellee from the action. 3 This appeal followed.
The appellant asserts that a genuine issue of material fact exists as to whether Ellis, the appellee's inspector, exercised control of the appellant's work at the job site. In particular, the appellant emphasizes deposition testimony to the effect that, on various occasions prior to the accident, Ellis gave directions to employees of Shafer Contracting Company concerning the work to be performed. Thus, the appellant contends that the circuit court committed error in granting summary judgment for the appellee.
The appellee, on the other hand, contends that the record demonstrates that Ellis was present at the work site merely to assure that Shafer Contracting Company complied with the March 1988 contract. Beyond that, according to the appellee, Ellis exercised no control of the appellant's work or the work of any other Shafer employee at job site X54. Thus, the appellee cites the case of Lemley v. United States, 317 F.Supp. 350 (N.D.W.Va.1970), aff'd, 455 F.2d 522 (4th Cir.1971), for the principle that an owner's reservation of a right to inspect the work for contract compliance does not give rise to a cause of action against the owner by an injured employee of an independent contractor. Moreover, the appellee points out that employees of Shafer Contracting Company indicated during depositions that they, and not Ellis, determined the manner by which trees were to be cut and cleared from the right-of-way. In particular, the appellee emphasizes the deposition testimony of the appellant that he and his co-worker, John Mitchell, determined the manner for cutting trees on November 30, 1992, and that the appellant would never expect advice in that regard from Ellis. 4
Pursuant to Rule 56, summary judgment is mandated if the record demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Our standards of review concerning summary judgments are well settled. As this Court stated in syllabus point 3 of Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963): "A motion for summary judgment should be granted only when 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." See also syl. pt. 2, Rose v. Oneida Coal Co., 195 W.Va. 726, 466 S.E.2d 794 (1995); Payne v. Weston, 195 W.Va. 502, 506, 466 S.E.2d 161, 165 (1995); syl. pt. 2, Graham v. Graham, 195 W.Va. 343, 465 S.E.2d 614 (1995).
Moreover, as we observed in syllabus point 2 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995):
Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
See also syl. pt. 2, Pinson v. Canaan Valley Resorts, Inc., 196 W.Va. 436, 473 S.E.2d 151 (1996); syl. pt. 2, Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736 (1995); Neary v. Charleston Area Medical Center, 194 W.Va. 329, 333, 460 S.E.2d 464, 468 (1995). In addition, as this Court stated in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994): "A circuit court's entry of summary judgment is reviewed de novo." See also ...
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