Herrell v. National Beef Packing Co., LLC

• Decision Date: 27 February 2009
• Docket Number: No. 99,451.,99,451.
• Citation: 202 P.3d 691
• Parties: Shelly K. HERRELL, Appellee, v. NATIONAL BEEF PACKING COMPANY, LLC, Appellant, and Terracon Consultants, Inc. & Liberty Mutual Fire Ins. Company, Appellees.
• Court: Kansas Court of Appeals

202 P.3d 691

Shelly K. HERRELL, Appellee, v. NATIONAL BEEF PACKING COMPANY, LLC, Appellant, and Terracon Consultants, Inc. & Liberty Mutual Fire Ins. Company, Appellees.

No. 99,451.

Court of Appeals of Kansas.

February 27, 2009.

David J. Rebein and Aaron L. Kite, of Rebein Bangerter PA, of Dodge City, for appellants.

Matthew L. Bretz and Mitchell W. Rice, of Bretz Law Offices, of Hutchinson, for appellee Shelly K. Herrell.

Before McANANY, P.J., GREEN and BUSER, JJ.

GREEN, J.

In this premises liability case, a subcontractor's employee, Shelly K. Herrell, was injured when she stepped into a hole in the concrete floor of the landowner's (National Beef Packing Company [National Beef]) plant. Herrell was working at the plant to obtain soil samples for testing. Herrell sued National Beef, alleging that National Beef was negligent in creating, maintaining, and failing to warn of the dangerous condition; in violating an Occupational Safety and Health Administration (OSHA) regulation; in failing to inspect the premises; and in failing to keep the business place safe. Because Herrell's injuries were covered by workers compensation, National Beef asserted that Herrell's claims of negligence were barred by the rule and the policy reasons established in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994).

In Dillard, our Supreme Court stated that a landowner was not liable for the negligence of an independent contractor which resulted in a work-related injury to an employee of the independent contractor when the employee was covered by workers compensation. 255 Kan. 704, Syl. ¶ 3, 877 P.2d 371. The trial court disagreed, determining that Dillard did not control because National Beef had created the dangerous condition of the hole by continuing to operate the plant during the construction. The question before us is whether Herrell's claims of negligence against National Beef in causing her injuries are controlled by the Dillard holding.

Although Dillard limited its decision to two theories of landowner liability—breach of a nondelegable duty assigned by statute or ordinance and vicarious liability when the work being performed is of an inherently dangerous nature—the Dillard court cited with approval authorities from other jurisdictions that precluded a contractor's employee claim for injury even when the employee made a claim of liability based on the negligent acts of the landowner. Moreover, the "policy reasons" stated in Dillard would preclude Herrell's claims of negligence against National Beef just as the claims of vicarious liability and peculiar risk were precluded in Dillard. Accordingly, we reverse and remand with directions to the trial court to enter judgment in favor of National Beef.

National Beef contracted with J-A-G Construction Company (J-A-G) to act as a general contractor for the construction of a new roof on its rendering facility in Dodge City. During the roofing project, National Beef continued to operate the rendering facility, where cow intestines, blood, and other non-consumable meat products (which are called rendering) were known to spill onto and cover the floor of the plant.

As a part of the construction project, large holes—approximately 2 feet deep and 8 to 10 inches in diameter—were excavated in the rendering plant's existing floor for concrete pillars to support the new roof. J-A-G subcontracted with Terracon Consultants, Inc. (Terracon), a consulting engineering company, to test the soil in the holes.

Terracon's employees Shane Harper and Herrell arrived at the rendering facility to conduct the soil tests. After they signed in with National Beef's security at the gate to the plant, a J-A-G foreman took Harper and Herrell through the rendering plant to the site of the holes where they were to obtain soil samples for testing. The holes were surrounded by sandbags.

Harper and Herrell returned to their truck to get the equipment necessary for the soil sampling. As they were walking alone through the rendering plant back toward the job site with their equipment, Herrell stepped off of a small ledge and fell into an unmarked hole that had become covered in rendering, injuring her ankle and knee.

Herrell collected workers compensation benefits from Terracon. Herrell also filed a separate lawsuit against National Beef, generally alleging in her petition that National Beef was "negligent in maintaining a dangerous condition; in failing to warn of the dangerous condition; and in other respects."

National Beef moved for summary judgment, claiming it was not liable because it had no notice of the hole and because it did not control the area where the accident occurred. National Beef also argued that under the rule announced in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), it could not be held liable to Herrell because she had been injured while working on National Beef's premises as an employee of a subcontractor who was covered by workers compensation. In denying summary judgment on this ground, the trial court explained:

"The Court notes that [Dillard] states, `However, while the liability of the employer is limited, the employee can still bring an action against and recover damages from a negligent third party. K.S.A. 44-504(a) . . .'

"In this instance, [National Beef] was continuing its normal working operations while a construction project was under way. Had [National Beef] vacated the premises and allowed [J-A-G] and its subcontractors exclusive access to and possession of the area under construction, their motion would be well founded.

"However, the facts indicate to this Court that the rendering products that may have filled and obscured the hole that [Herrell] stepped into were there because of the actions of Defendant National Beef. It appears there are comparative fault issues that cannot be determined through a motion for summary judgment."

At trial, National Beef moved for a directed verdict, again arguing that the holding in Dillard dictated that Herrell could recover no more from National Beef than if she were National Beef's own employee, that is, she was limited to recovering workers compensation benefits. The trial judge again concluded that the rule of nonliability of the landowner announced in Dillard was inapplicable, stating:

"This situation is one that I agree with [Herrell's attorney]. The hole itself is not inherently dangerous. Covering the hole with rendering makes it dangerous. The entire operation could have been turned over to [J-A-G]. And, had National Beef left the area, then clearly the cases cited by [National Beef] starting with Dillard vs. Strecker would be applicable. But that's not the case.

"They continued working there. They covered the floor with a substance that it hid dangerous holes in this case. They should have known that under the circumstances they were creating a dangerous situation."

The case was submitted to the jury to determine the comparative fault, if any, of Herrell, National Beef, J-A-G (including its subcontractors), and Terracon. As to National Beef's fault, the trial court instructed the jury as follows:

"The Plaintiff Shelly K. Herrell claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, in the following respects:

"a. In creating an unreasonably dangerous condition by operating the rendering plant in such a manner to cause rendering to spill on the floor causing holes in the floor to become filled with rendering and hidden from the view of persons walking on the floor;

"b. In maintaining an unreasonably dangerous condition by failing to timely remove the renderings from the floor which resulted in the hole not being visible;

"c. In failing to provide adequate protection and warning from dangerous conditions such as a warning, cone, metal grate, or caution tape, so that people would be warned that the rendering caused holes in the floor to be hidden;

"d. In failing to keep the business place safe;

"f. In removing the metal grate, thereby leaving the hole hidden and exposing people to a risk of falling in a hidden hole;

"g. In failing to inspect the business premises; and

"h. In creating an unreasonably dangerous condition by operating the rendering plant while construction was in progress, causing rendering to spill on the floor and hiding from view potentially dangerous conditions.

"The Plaintiff Shelly K. Herrell further claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, by not complying with the industry standard set out in OSHA Reg. 1910.23(a)(8) which requires every floor hole into which persons can accidentally walk to be guarded by either: (i) a standard railing with standard toeboard on all exposed sides, or (ii) a floor hole cover of standard strength and construction. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing."

The jury ultimately returned a verdict assessing fault for Herrell's total damages of $251,197.86 as follows: National Beef— 47.5%; J-A-G—32.5%, Terracon—15%; and Herrell—5%.

DOES KANSAS SUPREME COURT PRECEDENT BAR THE EMPLOYEE OF AN INDEPENDENT CONTRACTOR FROM SUING THE LANDOWNER UNDER ANY THEORY OF NEGLIGENCE?

National Beef's sole contention on appeal is that the trial court erred in not concluding, based on the principles and legal reasoning articulated in Dillard, that it was entitled to judgment as a matter of law. National Beef argues that under Dillard, it owed no duty to Herrell because her injuries were covered by workers compensation. As a result, National Beef argues that workers compensation was the exclusive remedy, regardless of the question of negligence. Herrell, on the other hand, counters that National Beef has read too much into Dillard and argues that Dillard was specifically limited to the claims and facts of that case by the...