France v. Southern Equipment Co.

• Decision Date: 28 January 2010
• Docket Number: No. 34494.,34494.
• Court: West Virginia Supreme Court
• Parties: Langley and Inez FRANCE, individually and as the Parents and Next Friends of Robert France, a minor, Plaintiffs Below, Appellants v. SOUTHERN EQUIPMENT COMPANY, a West Virginia Corporation; and Quality Metal Roof Manufacturing and Sales, Inc., a West Virginia Corporation, Defendants Below, Appellees and Southern Equipment Company, Third-Party Plaintiff Below, Appellee v. Dan Hensley, d/b/a/ Royalty Builders, Third-Party Defendant Below.

689 S.E.2d 1

Langley and Inez FRANCE, individually and as the Parents and Next Friends of Robert France, a minor, Plaintiffs Below, Appellants v. SOUTHERN EQUIPMENT COMPANY, a West Virginia Corporation; and Quality Metal Roof Manufacturing and Sales, Inc., a West Virginia Corporation, Defendants Below, Appellees and Southern Equipment Company, Third-Party Plaintiff Below, Appellee v. Dan Hensley, d/b/a/ Royalty Builders, Third-Party Defendant Below.

No. 34494.

Supreme Court of Appeals of West Virginia.

Submitted September 2, 2009.

Modified Opinion Filed January 28, 2010.

Syllabus by the Court

1. "The determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law." Syllabus Point 5, Athens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

2. "There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative." Syllabus Point 5, Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).

3. "One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination." Syllabus Point 1, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

4. "An owner who engages an independent contractor to perform a job for him or her may retain broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract — including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work — without changing the relationship from that of owner and independent contractor, or changing the duties arising from that relationship." Syllabus Point 4, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).

5. "The independent contractor defense is unavailable to a party employing an independent contractor when the party (1) causes unlawful conduct or activity by the independent contractor, or (2) knows of and sanctions the illegal conduct or activity by the independent contractor, and (3) such unlawful conduct or activity is a proximate cause of an injury or harm." Syllabus Point 6, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).

6. "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]." Syllabus Point 3, Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993).

7. "The `reasonably safe place to work' theory may not be used against the owner of a place of employment when the owner exercises no control over the equipment provided by the contractor for use by the contractor's employees." Syllabus Point 3, Taylor v. Sears, Roebuck and Co., 190 W.Va. 160, 437 S.E.2d 733 (1993).

8. "A principal has a non-delegable duty to exercise reasonable care when performing an inherently dangerous activity; a duty that the principal cannot discharge by hiring an independent contractor to undertake the activity." Syllabus Point 2, King v. Lens Creek Ltd. Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).

9. "To constitute an inherently dangerous activity, the work must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that danger must be naturally apprehended by the parties when they contract. Only then will the work constitute an inherent danger that places a non-delegable duty upon the one ordering it to protect third parties against the resulting injury." Syllabus Point 3, King v. Lens Creek Ltd. Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).

10. As a general rule, an expert witness may not testify as to questions of law such as the principles of law applicable to a case, the interpretation of a statute, the meaning of terms in a statute, the interpretation of case law, or the legality of conduct. It is the role of the trial judge to determine, interpret and apply the law applicable to a case.

L. Lee Javins, II, Esq., Guy R. Bucci, Esq., D. Blake Carter, Jr., Esq., Bucci Bailey & Javins, L.C., Charleston, WV, for Appellant.

Gary E. Pullin, Esq., Molly K. Underwood, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Appellee, Southern Equipment Company.

KETCHUM, Justice:

In this appeal from the Circuit Court of Logan County, a plaintiff seeks to reverse a circuit court order granting summary judgment in favor of a defendant. The circuit court's order held that the defendant owed no duty of care to the plaintiff under our independent contractor defense.

As set forth below, we affirm the circuit court's summary judgment order in favor of the defendant.

I. Facts and Background

In the Spring of 2006, plaintiff Robert France was 16 years old and in the 10th grade in high school. Third-party defendant Danny Hensley, doing business under the name "Royalty Builders" (hereafter referred to as "Royalty Builders") hired Mr. France to work for him as a roofer during his Spring Break from high school. The plaintiff had never done roofing or construction work in the past.

Defendant Southern Equipment Company ("Southern Equipment") owned a building in Logan County, West Virginia that needed a new sheet metal roof. Southern Equipment obtained an estimate for the purchase and installation of a new roof from defendant Quality Metal Roof Manufacturing and Sales, Inc. ("Quality Metal Roof). Satisfied with the estimate, Southern Equipment gave Quality Metal Roof a down payment for the cost of complete "installation and removal" of the roof.

Unbeknownst to Southern Equipment, Quality Metal Roof did not remove or install roofing materials. Quality Metal Roof did not tell Southern Equipment that it only manufactured and supplied sheet metal roofing materials, and hired another company to install the customer's new roof. After receiving the down payment from Southern Equipment, Quality Metal Roof hired Royalty Builders to install Southern Equipment's new roof. Quality Metal Roof never informed Southern Equipment that Quality Metal Roof employees were not installing the new roof.

On April 12, 2006, a crew of eight workers for Royalty Builders — including the plaintiff — were working to replace Southern Equipment's sheet metal roof. The parties agree that none of Royalty Builders's workers employed any safety equipment to protect against falling, and that Southern Equipment had no knowledge of the requirement for, or lack of use of, safety equipment. When the plaintiff stepped on a piece of sheet metal that had been loosened, the sheet flipped and the plaintiff fell through the roof, landing on the concrete floor approximately 25 feet below. The plaintiff sustained a serious head injury in the fall, and continues to suffer deficits as a result of the fall.

On August 11, 2006, plaintiff Robert France — through his parents Langley and Inez France — filed this lawsuit¹ against Quality Metal Roof and against Southern Equipment Company. Royalty Builders, the installer of the roof and the plaintiff's employer, was not sued by the plaintiff.² The plaintiffs' complaint alleged that Quality Metal Roof and Southern Equipment had failed to provide the plaintiff with a reasonably safe work environment, because they failed to require Royalty Builders's employees to use some means of fall protection, or otherwise guard against the plaintiff falling through the roof. The plaintiffs also contended that defendants Quality Metal Roof and Southern Equipment were vicariously liable and strictly liable to the plaintiff for the negligence of Royalty Builders, because the defendants exposed him to the "abnormally and inherently dangerous task of removing and installing roofing." Lastly, the plaintiffs asserted that the defendants were negligent in the selection and hiring of Royalty Builders, in part because Royalty Builders employed "child labor" to perform roofing work in violation of state and federal law.

After substantial discovery and a mediation session, defendant Quality Metal Roof — which hired Royalty Builders to install the new roof — settled with the plaintiffs for $875,000.00.

Defendant Southern Equipment, however, filed a motion for summary judgment pursuant to Rule 56(c) of the Rules of Civil Procedure. Southern Equipment argued in its motion that it owed no legal duty of care to Robert France. First, Southern Equipment contended that Royalty Builders was an independent contractor that it simply did not hire, and over which Southern Equipment did not retain the right to control the details of the work being performed. Furthermore, Southern Equipment argued that it could not be responsible for negligently hiring Royalty Builders — the plaintiffs employer — because it was undisputed that Southern Equipment did not hire and did not contract with Royalty Builders to remove and install the roof at its facility. Instead, Southern Equipment argued that the evidence plainly showed that it contracted to hire Quality Metal Roof, which then hired Royalty Builders without the knowledge of Southern Equipment. Additionally,...