King v. Daniel Intern. Corp., 21795

• Decision Date: 06 October 1982
• Docket Number: No. 21795,21795
• Citation: 278 S.C. 350,296 S.E.2d 335
• Court: South Carolina Supreme Court
• Parties: Dorothy E. KING, Respondent, v. DANIEL INTERNATIONAL CORPORATION, Appellant.

Page 335

296 S.E.2d 335

278 S.C. 350

Dorothy E. KING, Respondent, v. DANIEL INTERNATIONAL CORPORATION, Appellant.

No. 21795.

Supreme Court of South Carolina.

Oct. 6, 1982.

W. Francis Marion and W. Francis Marion, Jr., of Law Offices of Haynesworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

Ernest J. Howard and T. Preston Reid of Law Offices of Griffin & Howard, Greenville, for respondent.

HARWELL, Justice:

Respondent's negligence action was initiated to recover for injuries she sustained as she was leaving work. Respondent fell in the Michelin Tire Corporation parking facility which appellant was constructing. Finding appellant negligent, the jury awarded respondent one hundred fifty thousand dollars ($150,000) actual damages. Appellant's motions for summary judgment, directed verdict, judgment n.o.v., or in the alternative for a new trial were all denied. We affirm.

In August 1973 Michelin Tire Corporation contracted with appellant to have it construct a processing plant in Greenville, South Carolina. In April 1975, although not completed, Michelin Tire Corporation was operating with several shifts of employees. Around 12:30 a.m. on April 5, 1975 as respondent and a co-worker were traversing the parking facility, respondent fell into an uncovered drainage ditch and against the drainage pipe. Appellant's employees had been working on the facility the previous afternoon. Even though light fixtures had been installed, they were not lighted when the accident occurred. Respondent has recovered Workmen's Compensation benefits from Michelin Tire Company.

Initially, appellant contends that it was not a "third person" as contemplated by the Workmen's Compensation Act but rather it was conducting Michelin's business; therefore, pursuant to S.C.Code, Ann. § 42-5-10 (1976), the respondent's exclusive remedy was under the Act. By constructing the Michelin plant, appellant alleges it was an employee of Michelin and a co-employee of respondent. This argument is without merit. Although it is true this Court has interpreted § 42-5-10 to preclude actions against co-employees, Parker v. Williams & Madjanik, Inc., 269 S.C. 662, 239 S.E.2d 487 (1977); Nolan v. Daley, 222 S.C. 407, 73 S.E.2d 449 (1952), we conclude that appellant was an independent contractor of Michelin and not its employee. The relevant portion of the contract between appellant and Michelin Tire Corporation states:

Section GC.4 Contractor-Independent and Responsible. The contractor shall be an independent contractor and shall have complete control of his organization and shall exercise direct supervision of the work done by his forces.

We have stated that the protection of § 42-5-10 does not "extend to independent contractors performing work pursuant to their contract with the employer of the injured person." Parker v. Williams & Madjanik, Inc., supra.

Next appellant contends that even if the Workmen's Compensation Act did not bar the action, the case must fail because it did not breach any duty it owed, if any, to respondent. Respondent and her co-employees testified that they did not observe any ditch or hole in the parking lot as they traversed the lot on their way to work the afternoon of April 4, 1975. When respondent left her night shift employment, the unlighted parking lot was very dark. Respondent and her co-employees agree that there was no visible warning device at the drainage ditch. As appellant constructed the parking lot in April 1975, it was aware that Michelin's production employees parked there. Appellant, an independent contractor, was charged with a duty of due care to leave the premises in a safe condition, that is, free from any hazards to safety which it may have created. Smith v. Fitton and Pittman, Inc., 264 S.C. 129, 212 S.E.2d 925 (1975); Edward's of Byrnes Downs v. Charleston Sheet Metal Company, 253 S.C. 537, 172 S.E.2d 120 (1970). At the least, appellant's duty was to warn respondent and Michelin's other employees of the existence of an open ditch in the unlighted parking lot. House v. European Health Spa, 269 S.C. 644, 239 S.E.2d 653 (1977).

Appellant also alleges the trial court erred in striking the defense of assumption of the risk. We disagree. Respondent would have assumed the risk only if she had freely and voluntarily exposed herself to a known danger of which she understood and appreciated the danger. Canady v. Martschink Beer Distributors, Inc., 255 S.C. 119, 177 S.E.2d 475 (1970); Turner v. Sinclair Refining Company, 254 S.C. 36, 173 S.E.2d 356 (1970). It is uncontroverted that neither respondent nor her co-workers knew of the existence of the ditch. Respondent used the employee parking lot as a matter of right and by necessity and had a right to have the premises in a reasonably safe condition with proper warning of the latent peril.

After the defense of contributory negligence was submitted to it, the jury found that respondent was not contributorily negligent. However, appellant asserts that respondent was guilty of contributory negligence as a matter of law. The question of contributory negligence is within the sole province of the jury unless there is but one reasonable inference to be drawn therefrom, and the act itself is one about which ordinary minds could not differ in deciding it to be both negligent or reckless and the proximate cause of the injury. Bruno v. Pendleton Realty Company, 240 S.C. 46, 124 S.E.2d 580 (1962). It rarely becomes a question of law for the Court's determination. Joiner v. Fort, 226 S.C. 249, 84 S.E.2d 719 (1954)...