Falls v. Scott, 65189

• Decision Date: 12 July 1991
• Docket Number: No. 65189,65189
• Citation: 815 P.2d 1104,249 Kan. 54
• Parties: Berlin FALLS, Appellant, v. Rosemary SCOTT and Harry E. Ohmie, Appellees.
• Court: Kansas Supreme Court

Page 1104

815 P.2d 1104

249 Kan. 54

Berlin FALLS, Appellant, v. Rosemary SCOTT and Harry E. Ohmie, Appellees.

No. 65189.

Supreme Court of Kansas.

July 12, 1991.

Syllabus by the Court

1. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. As a general rule, when a person (a contractee) lets out work to another and reserves no control over the work or workmen, the relation of contractee and independent contractor exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor. An exception to the general rule is the inherently dangerous activity doctrine, which provides that one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such dangers.

3. When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by the jury.

4. It is a well-established rule in Kansas that the admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion.

5. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court's decision.

6. In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule is also applicable when appellate review is sought on a motion for directed verdict.

7. An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.

8. The question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts.

Gerald W. Scott, of Gerald W. Scott, P.A., Wichita, argued the cause and was on the brief, for appellant.

Michael C. Helbert, of Helbert, Bell & Smith, Chartered, Emporia, argued the cause, and James R. Campbell, of the same firm, was with him on the brief, for appellee Rosemary Scott.

John G. Atherton, of Atherton & Vander Velde, Emporia, argued the cause and was on the brief, for appellee Harry E. Ohmie.

LOCKETT, Justice:

This is a personal injury negligence action. Berlin Falls, while on his property, was severely injured when a "brush hog" mowing machine being operated on adjacent property threw a piece of wire that struck him in the face and eyes. Falls sued Rosemary Scott, the landowner, and Harry Ohmie, the mowing machine operator, for Falls' injuries resulting from their alleged negligence. Although the jury returned a verdict for Falls, he appeals a number of adverse trial court rulings, claiming the trial court erred in: (1) not allowing plaintiff's expert witness to testify concerning the nature of a brush hog and its inherent dangerous design; (2) ruling that the brush hog was not inherently or abnormally dangerous and its operation within the city limits was not inherently dangerous; (3) determining that defendant Scott was not responsible under Restatement (Second) of Torts § 427 (1963) for an independent contractor's negligent operation of the brush hog because the independent contractor was not performing an inherently dangerous activity; (4) finding the landowner had committed no independent acts of negligence; (5) ruling there was no evidence of an employment or agency relationship between Scott and yard man Sonny Vaugh and the men working on Scott's property; and (6) prohibiting a plaintiff's witness from testifying as to his employment status, but allowing defendants' witnesses to testify as to their employment status.

The basic facts are not in dispute. Plaintiff, Berlin Falls, and his wife live in the town of LeRoy, Kansas. To the south of the Falls' home was the home of a neighbor. To the east of the neighbor's property was vacant land known as the Trimble property, which consisted of four vacant lots. The Trimble property was purchased by defendant Rosemary Scott in late June 1987.

After Scott purchased the property, she hired Sonny Vaugh (William G. Vaugh, Jr.) and his crew to clean up the property. When Sonny and his crew could not clear the lots of the trash, bottles, fence posts, and fencing wire or mow because of the tall weeds and other growth, Scott contacted Harry E. Ohmie to clear the vacant lots with his brush hog.

A "brush hog" is a mowing machine sometimes also referred to as a "bush hog," "field cutter," "field mower," and a "rotary mower." It is a large mowing machine designed to cut brush, small trees, or high weeds and grass and is pulled and powered by a tractor.

On July 6, 1987, Ohmie began mowing the vacant property for Scott. While Falls was walking in his back yard, he was struck in the face and eyes by a piece of wire thrown over 80 feet from the vacant land by Ohmie's "brush hog" mowing machine.

Plaintiff filed this personal injury lawsuit for damages arising from alleged negligence of Scott and Ohmie. Prior to trial Scott filed two motions for partial summary judgment on the issue of independent contractor and a motion in limine as to plaintiff's expert's testimony. The trial court granted or partially granted all three motions. At the conclusion of evidence, Scott moved for a directed verdict, claiming there was no evidence that she was negligent or that Sonny Vaugh and his crew were her employees or agents. The trial judge granted Scott's motion for directed verdict. Although the plaintiff had not joined Sonny Vaugh as a defendant in the action, the jury was allowed to compare his negligence. The jury attributed 30% fault to Falls, 30% to Ohmie, and 40% to Sonny Vaugh and his employees. Falls' damages were determined to be $106,117.13. Falls appealed, raising various issues.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).

In his petition Falls alleged that Scott was liable for Ohmie's negligence because of their relationship as master-servant. Scott's first motion for partial summary judgment claimed that Ohmie, the brush hog operator, was an independent contractor and under the law she was not liable for the negligence of an independent contractor. The trial court correctly determined that Ohmie was an independent contractor at the time of the accident.

Falls' petition also asserted that even if Ohmie was an independent contractor Scott was liable for Ohmie's negligence under Restatement (Second) of Torts § 427 because a brush hog is an inherently dangerous instrumentality, and the operation of the brush hog in the city was an inherently dangerous activity such that, under Restatement (Second) of Torts §§ 519 and 520 (1976), Scott was strictly liable for the harm which resulted from an abnormally dangerous activity. The trial court granted Scott's second motion for partial summary judgment, finding (1) the operation of a brush hog in LeRoy, Kansas, is not an abnormally dangerous activity; and (2) whether a brush hog is an inherently dangerous instrumentality is a matter of law to be determined by the court. The court then determined that the brush hog was not inherently dangerous.

Though the trial court used the terms "dangerous instrumentality" and "inherently dangerous activity" interchangeably, there is a difference.

"To be inherently dangerous, a commodity or condition must be so imminently dangerous in kind as to imperil the life or limb of any person who uses it, or, burdened with a latent danger or...