Henderson v. Meredith Lumber Co., Inc.

• Court: West Virginia Supreme Court
• Writing for the Court: NEELY; BROTHERTON
• Citation: Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (W. Va. 1993)
• Decision Date: 23 November 1993
• Docket Number: No. 21532,21532
• Parties: James Timothy HENDERSON; Kathy Henderson; and Michelle Henderson and Amy Henderson, Infants Who Sue By Their Next Friend Kathy Henderson, Plaintiffs Below, Appellants, v. MEREDITH LUMBER COMPANY, INCORPORATED and Lawson Hamilton, Jr., Defendants Below, Appellees.

Page 324

438 S.E.2d 324

190 W.Va. 292

James Timothy HENDERSON; Kathy Henderson; and Michelle Henderson and Amy Henderson, Infants Who Sue By Their Next Friend Kathy Henderson Plaintiffs Below, Appellants, v. MEREDITH LUMBER COMPANY, INCORPORATED and Lawson Hamilton Jr., Defendants Below, Appellees.

No. 21532.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1993.

Decided Nov. 23, 1993.

Syllabus by the Court

1. " 'Under W.Va.Code, 21-3-1, the employer and the owner of a place of employment, place of public assembly, or a public building is affixed with a statutory responsibility to maintain such place in a reasonably safe condition.' Syllabus point 3, Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986)." Syl. pt. 1, Taylor v. Sears Roebuck Co., 190 W.Va. 160, 437 S.E.2d 733 (1993).

2. The goal of W.Va.Code 21-3-1 [1937] et seq. is to assure workers a reasonably safe workplace. The legislature placed such a responsibility on the employer and the owner. The employer's duty is directly related to the employment activity that is controlled by the employer and the owner's duty is limited to providing a reasonably safe workplace, unless the owner continues to exercise control of the place of employment.

3. 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].

4. W.Va.Code 23-2-6a [1949] extends the employer's immunity from liability set forth in W.Va.Code 23-2-6 [1991] to the employer's officer, manager, agent, representative or employee when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.

Henry C. Bias, Jr., Lee B. Forb, Charleston, for plaintiffs.

Thomas V. Flaherty, Jeffery M. Wakefield, Flaherty, Sensabaugh & Bonasso, Charleston, for Lawson Hamilton, Jr.

NEELY, Justice:

James Timothy Henderson, his wife, Kathy and their children, Michelle and Amy appeal a summary judgment order holding that, as a matter of law, Lawson Hamilton, Jr. was not personally liable for Mr. Henderson's injuries and dismissing him as a party defendant. On appeal, the Hendersons contend that the suit against Mr. Hamilton should not have been dismissed because Mr. Hamilton, as the owner of the land where Mr. Henderson's industrial accident occurred, failed in his duty under W.Va.Code 21-3-1 [1937] to provide a safe workplace. Because the record shows that Mr. Hamilton's suggestions about the property resulted from his corporate role with Meredith Lumber Co., Mr. Henderson's employer, and did not result from his ownership of the land, we find that the circuit court correctly dismissed the suit against Mr. Hamilton.

On 8 October 1990, Mr. Henderson, a truck driver for Meredith Lumber, was hauling logs between a logging operation in Mossy, West Virginia and Meredith Lumber's saw mill in Cabin Creek, West Virginia. Because Meredith Lumber's log yard was covered with mud to a depth of between 6 to 18 inches, Mr. Henderson stopped his log truck outside the yard at a sawdust pile to unstrap his load before going into the log yard to unload. ¹ While Mr. Henderson was removing the last strap, a log from his truck rolled off and hit Mr. Henderson. Mr. Henderson fractured his leg and injured his spine making him a paraplegic.

Alleging that Mr. Henderson's injuries resulted from Meredith Lumber's "deliberate intention," a violation of W.Va.Code 23-4-2 [1991] ², the Hendersons sued Meredith Lumber. By an amended complaint, the Hendersons added Mr. Hamilton, the land owner, as a party defendant, alleging that he was liable for Mr. Henderson's injuries under W.Va.Code 21-3-1 [1937] because he failed to provide a safe workplace.

After extensive discovery and a hearing, the circuit court on 8 October 1992 denied Mr. Hamilton's motion to be dismissed as a party defendant; after reconsidering, however, the circuit court dismissed Mr. Hamilton on 15 October 1992. The Hendersons note that the only new evidence presented between the circuit court's decisions was the deposition of Edward Young, a former employee of Meredith Lumber, and that the circuit court dismissed Mr. Hamilton two days after the Hendersons settled with Meredith Lumber for $1,250,000.

I

On appeal, the Hendersons argue that W.Va.Code 21-3-1 [1937] imposes an absolute duty on the owner to maintain his property in a reasonably safe condition. W.Va.Code 21-3-1 [1937] states, in pertinent part:

Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe.

W.Va.Code 21-3-1 [1937] is the introductory section of the Code chapter that imposes a statutory duty upon a West Virginia employer to provide and to maintain the employment place in a reasonably safe condition. The goal of W.Va.Code 21-3-1 [1937] et seq. is to assure workers a reasonably safe workplace and the legislature placed such a responsibility on the employer and the owner. The employer's duty is directly related to employment activity--activity controlled by the employer--and the owner's duty is limited to providing a reasonably safe workplace, unless the owner continues to exercise control of the place of employment. See W.Va.Code 21-3-1, through -18. 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].

The Hendersons assert that this Court's holding in Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986) (Miller, C.J.), places an absolute statutory duty on an owner to provide and maintain a reasonably safe workplace. Although in Pack we recognized that an owner who exercises control over the property has a duty to provide a reasonably safe workplace, the broad interpretation of Pack urged by the Hendersons is not consistent with Pack 's facts. In Pack, Ms. Pack, an employee of Nelson's Dress Shop, fell down an interior stairway at work and injured her left knee and back. The stairway Ms. Pack fell down had no handrail and the steps were made of hard tile with the edges capped by metal strips. Noting that " W.Va.Code, 21-3-6 ... requires handrails on stairways and safe treads on steps," we found that an owner who leased property with a stairway in a defective condition had under W.Va.Code 21-3-1 [1937] violated a duty shared with the employer to provide a safe workplace. Pack, 177 W.Va. at 490, 354 S.E.2d at 586. We specifically noted that "[t]he Van Meters could have corrected these structural problems prior to renting the store to Nelson's Dress Shop." Pack, id. Thus in Pack, the Van Meters were held liable because before they leased the store, they failed to correct a defective stairway problem as required by W.Va.Code 21-3-6 [1923]. Pack also noted that some of the safety requirements "in W.Va.Code, 21-3-1 through -18 ... are clearly the responsibility of an employer because they involve machines or other instrumentalities directly related to the employment activity over which the owner of the place of employment exercises no control." Pack, id. Therefore, we find no merit in the Hendersons' argument that our holding in Pack recognized that W.Va.Code 21-3-1 [1937] imposes an absolute duty on a property owner to provide a safe workplace.

Several of our recent cases have noted that the owner who provides a reasonably safe workplace must continue to exercise control of the workplace in order to impose liability on the owner. In Pasquale v. Ohio Power Co., 187 W.Va. 292, 305, 418 S.E.2d 738, 751 (1992) (Miller, C.J.), we found that the owner who was also the occupier of the premises has a duty "to provide a reasonably safe place to work...." In Syl.Pt. 3, Taylor v. Sears, Roebuck and Co., 190 W.Va. 160, 437 S.E.2d 733 (1993) (Brotherton, J.), we held that when an owner exercised no control over the equipment provided by the contractor for use by the contractor's employees, the "reasonably safe place to work" theory did not impose liability on the owner. In Taylor, the building where the accident occurred was under construction and "Sears' [the building's owner] control over the construction was apparently negligible." 190 W.Va. at 163, 437 S.E.2d at 736.

Our requirement that an owner who provides a reasonably safe workplace should continue to exercise control over the property before the reasonably safe place to work theory imposes liability on the owner is consistent with holdings from the other jurisdictions that have similar statutes. The other states that have similar statutes requiring an owner to provide a reasonably safe workplace include: Arkansas, Georgia, Nevada and Wisconsin. ³ In Carter v. Fraser Construction Co., 219 F.Supp. 650, 657 (W.D.Ark.1963) the federal district court held that Arkansas' safe work statute does not apply unless the person charged "has control or custody of the employment, place of employment, or the employee." In Horton v. Ammons, 125 Ga.App. 69, 186 S.E.2d 469 (1971), aff'd sub nom., Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972) the Georgia court held that the owner's full surrender of the leased premises relieved the owner of liability to an employee who was injured when a light fixture installed under the lessee's direction fell on her. Although the owner in Horton retained a right to view the premises, the court found that "[w]here the lessee has exclusive control of the premises, the lessor has no duty to inspect or any liability for defective construction or installation not made under his direction. [Citations omitted.]" Horton, 125 Ga.App. at 70, 186 S.E.2d at 472. In Frith v. Harrah South Shore Corp., 92 Nev. 447, 450, 552 P.2d 337, 339-40 (1976), the Nevada Supreme Court found that "[n]othing can be found in the language of...