Hargis v. Baize, No. 2002-SC-0969-DG.

• Decision Date: 19 May 2005
• Docket Number: No. 2002-SC-0969-DG.
• Parties: Donna HARGIS, Individually; Donna Hargis, as Administratrix of the Estate of Darrell Ruben Hargis, Deceased; Zachary Hargis, A Minor, through Donna Hargis as Next Friend; and Christian Hargis, A Minor, through Donna Hargis as Next Friend Appellants, v. Allen R. BAIZE, D/B/A Greenville Log and Lumber; and Baize Forest Products, Inc. Appellees
• Court: United States State Supreme Court — District of Kentucky

168 S.W.3d 36

Donna HARGIS, Individually; Donna Hargis, as Administratrix of the Estate of Darrell Ruben Hargis, Deceased; Zachary Hargis, A Minor, through Donna Hargis as Next Friend; and Christian Hargis, A Minor, through Donna Hargis as Next Friend Appellants, v. Allen R. BAIZE, D/B/A Greenville Log and Lumber; and Baize Forest Products, Inc. Appellees

No. 2002-SC-0969-DG.

Supreme Court of Kentucky.

May 19, 2005.

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Jonathan S. King, Paxton & King, PLC, Central City, Counsel for Appellants.

Alice Barns Herrington, Elizabeth U. Mendel, Woodward, Hobson & Fulton, LLP, Louisville, Counsel for Appellees.

Opinion of the Court by Justice COOPER.

Appellee, Allen R. Baize, owned a lumber yard and sawmill in Muhlenberg County, Kentucky, a sole proprietorship known as Greenville Log and Lumber Co. ("Greenville"). Baize¹ hired Darrell Ruben Hargis on an independent contractor basis to haul logs to and from Greenville and various other locations for which services Baize paid Hargis by the board-feet hauled. Hargis owned his own tractor (truck) but hauled the logs on a semi-trailer owned by Baize. Baize claims he rented the trailer to Hargis and deducted the rentals from Hargis's weekly paycheck but produced no records to prove that assertion. Hargis worked exclusively for Baize during the last six months of his life.

On November 24, 1998, Baize dispatched Hargis to Campbellsville, Kentucky, to pick up a load of logs that Baize had purchased from Whitney & Whitney Lumber Co. Presumably, Whitney's employees loaded the logs. Upon returning to Greenville, Hargis began releasing the binders on the logs in preparation for unloading by one of Baize's forklift drivers. Baize required all truck drivers, even his own employees, to release the binders on their loads, and then to move to a position at least two truck lengths in front of the truck so as to be in full view of the forklift operator while the logs were being unloaded. Baize owned eight forklifts, and three or four of them were in the vicinity of the unloading area when Hargis parked his truck. Steven Staples, a Baize employee, was standing by in his forklift waiting for Hargis to release the binders so that he could unload the logs. Unfortunately, when Hargis released the binders, a large log rolled off the trailer and struck and killed him.

Hargis's widow, individually, as administratrix of his estate, and as next friend of their two minor children, brought this action against Baize in the Muhlenberg Circuit Court alleging that the fatal accident was caused by Baize's failure to comply with Kentucky Administrative Regulation 803 KAR 2:317 § 2 (now § 3), promulgated pursuant to the Kentucky Occupational Safety and Health Act (KOSHA), which incorporates by reference 29 CFR § 1910.265(d)(1)(i)(b) and (c), promulgated pursuant to the federal Occupational Safety and Health Act (OSHA). Those regulations provide:

(d) Log handling, sorting, and storage—

(1) Log unloading methods, equipment, and facilities— (i) Unloading methods.

...

(b) Binders on logs shall not be released prior to securing with unloading lines or other unloading device.

(c) Binders shall be released only from the side on which the unloader operates, except when released by remote control devices or except when person making release is protected by racks or stanchions or other equivalent means.

In the context of our facts, "securing" the logs with an unloading device meant using the forks of the forklift to stabilize the logs to keep them from rolling off the truck when the binders were released. Baize admits that it was not his company's policy to comply with this regulation. Baize's former safety officer, Randahl Matheny, testified in a discovery deposition that an insurance representative visited the site two weeks before Hargis was killed and recommended implementation of the securing procedures required by the KOSHA regulations. According to Matheny, Delbert Knight, Baize's son-in-law and operations manager, rejected the recommendation even though Knight, himself, had been recently injured in a similar accident. A state investigative report prepared after Hargis's death also recommended implementation of the securing procedure required by KOSHA. When confronted with this recommendation, the only response of Robbie Baize, Baize's son and sales manager, was: "Not implemented."

Following completion of discovery, Appellants moved for partial summary judgment on the issue of Baize's negligence, claiming that the violation of the KOSHA regulations was negligence per se and created a private cause of action for wrongful death; thus, the jury should be instructed only on Hargis's contributory fault, if any, KRS 411.182, and damages. Baize also moved for summary judgment, claiming that the violation of the regulations did not create a private cause of action in favor of Appellants, and that his only duty to an independent contractor such as Hargis was to warn him of any hidden dangers on the premises. Ralston Purina Co. v. Farley, 759 S.W.2d 588, 589 (Ky.1988). The trial court agreed with Baize and also construed a "Release" signed by Hargis on April 10, 1998, to be a valid contract exculpating Baize from any liability for damages to Hargis caused by Baize's negligence. Accordingly, the trial court overruled Appellants' motion for partial summary judgment and entered a summary judgment in favor of Baize. The Court of Appeals affirmed. We granted discretionary review and now reverse the Court of Appeals and remand this case to the trial court with directions to vacate the summary judgment granted to Baize, grant a partial summary judgment to Appellants on the issue of Baize's liability, and conduct further proceedings as necessary.

I. VIOLATION OF KOSHA REGULATION.

KRS 446.070 provides:

A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

(Emphasis added.) The statute creates a private right of action in a person damaged by another person's violation of any statute that is penal in nature and provides no civil remedy, if the person damaged is within the class of persons the statute intended to be protected. State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 118 (Ky.1988); Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985); Hackney v Fordson Coal Co., 230 Ky. 362, 19 S.W.2d 989, 990 (1929).

A. Violation of administrative regulation.

In Rietze v. Williams, 458 S.W.2d 613 (Ky.1970), our predecessor court held that because KRS 13.081 provided that all administrative regulations "have the force and effect of law," they had the same effect as statutes or ordinances enacted directly by the General Assembly; thus, the violation of an administrative regulation is the equivalent of a violation of a statute, and a person injured by a violation may recover from the violator such damages as he or she sustained by reason of the violation. Id. at 617. However, KRS 13.081, the foundation for that holding, was subsequently repealed, 1974 Ky. Acts, ch. 73, § 7, and has not been reenacted or replaced by a general statute of similar import. In Centre College v. Trzop, 127 S.W.3d 562 (Ky.2003), we overruled Rietze to the extent that it relied on KRS 13.081 "for the proposition that KRS 446.070 allows recovery for violation of an administrative regulation." Id. at 566.

In Lomayestewa v. Our Lady of Mercy Hospital, 589 S.W.2d 885 (Ky.1979), the Court equated the violation of an administrative regulation with the violation of a statute.

[I]t is crystal clear there was a violation of the regulation and, of course, no inspector had any authority to relieve the hospital of compliance with the statutory standard.

Having determined there was a violation of the statutory standard, we have no trouble in determining that Jessica was one of the class of persons intended to be protected by the regulation, and her jump from the window was an event that the regulation was designed to prevent.

Id. at 887. It is unclear whether the violation in Lomayestewa occurred prior to the repeal of KRS 13.081.

In Britton v. Wooten, 817 S.W.2d 443 (Ky.1991), the violation clearly occurred after the repeal of KRS 13.081; nevertheless, the Court reiterated that "violations of administrative regulations, like statutory violations, constitute negligence, per se, and the basis for liability if found to be a substantial factor in causing the result." Id. at 447 (citing only Rietze and Higgins Inv., Inc. v. Sturgill, 509 S.W.2d 266 (Ky. 1974), another case in which the violation occurred prior to the repeal of KRS 13.081). Because KRS 446.070 was not mentioned in any of the Rietze line of cases, it is unclear whether the decisions were premised upon that statute, as this Court has previously stated. Centre College, 127 S.W.3d at 567 (concluding that KRS 446.070 allows for a private right of action only for the violation of regulations that are consistent with their enabling legislation). Another possibility is that the Lomayestewa and Britton Courts were recognizing a common law cause of action based on the violation of an administrative regulation, assuming that such a common law cause of action exists. Cf. Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64, 67 (1948) (suggesting but not deciding that the violation of an administrative regulation would give rise to a common law right of action if the injury was of a type that the regulation was designed to prevent).

We need not decide here whether such a common law cause of action exists; for KRS 338.031(1)(b), the statute under which the KOSHA regulations were promulgated, specifically provides that "[e]ach employer. . . [s]hall comply with occupational safety and health standards promulgated under this chapter." Since those standards are promulgated in the regulations adopted...