King v. Lens Creek Ltd. Partnership
| Decision Date | 16 December 1996 |
| Docket Number | 23335,Nos. 23334,s. 23334 |
| Citation | 199 W.Va. 136,483 S.E.2d 265 |
| Parties | , 133 Lab.Cas. P 58,255 Joy F. KING and David L. King, her husband, and David L. King, natural parent and next friend of Shannon King, an infant, Plaintiffs, Petitioners, v. LENS CREEK LIMITED PARTNERSHIP, a West Virginia Limited Partnership; Long Management Company, a West Virginia Corporation; Toyota Motor Sales, USA, Inc., a Corporation; Mid-Atlantic Toyota Distributors, Inc., a Corporation; and Bud Young Toyota, Inc., a West Virginia Corporation, Defendants. Joy F. KING and David L. King, her husband, and David L. King, natural parent and next friend of Shannon King, an infant, Plaintiffs v. LENS CREEK LIMITED PARTNERSHIP, a West Virginia Limited Partnership; Long Management Company, a West Virginia Corporation; Toyota Motor Sales, USA, Inc., a Corporation; Mid-Atlantic Toyota Distributors, Inc., a Corporation; and Bud Young Toyota, Inc., a West Virginia Corporation, Defendants. Lens Creek Limited Partnership, a West Virginia Limited Partnership and Long Management Company, a West Virginia Corporation, Petitioners. |
| Court | West Virginia Supreme Court |
3. 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.
Marc B. Chernenko, Wellsburg and Jerry W. Cook, Cook & Cook, Madison, for the Kings.
E.W. Rugeley, Jackson & Kelly, Charleston, for Toyota Companies.
Joanna I. Tabit, Steptoe & Johnson, Charleston and James J. MacCallum, Shaffer & Shaffer, Madison, for Lens Creek and Long.
1
In this case we are presented with two certified questions from the Circuit Court of Boone County regarding the liability of a principal, who retains an independent contractor who lacks adequate liability insurance and injures a third party through the negligent operation of an empty logging truck.
From this factual construct evolves the following certified questions and circuit court's answers:
1. Whether in a commercial transaction an independent contractor who lacks adequate liability insurance or financial resources to respond in damages is incompetent per se such that liability for the contractor's negligence will be imposed upon the employer, regardless of the independent contractor's skills?
Circuit court's answer: YES
2. Whether the operation of an empty commercial log truck upon the highways of our state is an inherently dangerous activity such that [it] will impose the negligence of the truck driver to his employer, regardless of the nature of the employment relationship?
Circuit court's answer: NO
The certified questions are the result of the circuit court's denial of the parties' motions for partial summary judgment. Syllabus Point 5, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994). Because there is a sufficiently precise and undisputed factual record upon which the legal issues can be determined, and because these legal issues substantially control this case, the questions are properly certified under W. Va.Code 58-5-2 (1967). 2 We therefore consider
[199 W.Va. 139] the questions certified by the circuit court and answer both certified questions in the negative.
The defendant, Lens Creek Limited Partnership (hereinafter "Lens Creek"), 3 owns a parcel of land in Kanawha County approximately 2800 acres in size upon which there is a quantity of standing timber. In January of 1988, Lens Creek entered into a "Timber Agreement" with Frederick Gene Maloskey and Tommy D. Mann, d/b/a M & M Trucking/Ashford (hereinafter "M & M"), whereby M & M would purchase timber located on the Lens Creek property and transport the timber for sale to third-party buyers. In addition to an initial purchase price, Lens Creek received a percentage of the gross income from timber sold by M & M. Under the "Timber Agreement," M & M was required to carry public liability insurance with coverage limits in the amount of $300,000 and property insurance with coverage limits in the amount of $500,000.
Shortly after entering into the "Timber Agreement," M & M quit the timber operation. Dallas C. Holstein and Clayton L. Holstein, who are brothers, assumed the operation under the same terms previously agreed upon between Lens Creek and M & M.
On June 25, 1993, Dallas Holstein, who was returning to the Lens Creek property after delivering a shipment of timber, entered Route 119 (also known as Corridor G) without yielding the right of way, thereby causing a collision between the empty logging truck he was operating and an automobile operated by one of the plaintiffs, Joy King, who was returning home from work. 4 As a result of the collision, Mrs. King suffered head and internal injuries, incurring medical costs exceeding $110,000.00 and suffering over $11,000.00 in lost wages.
This civil action was instituted in the Circuit Court of Boone County, which was filed by Joy King, her husband David King, and a consortium claim brought on behalf of their daughter, Shannon King. Among the defendants named were the Holsteins, Lens Creek Limited Partnership, and Long Management Company. 5
The record indicates that the Kings filed two motions for partial summary judgment. The first motion asserted that the Kings were entitled to judgment as a matter of law that Lens Creek was negligent in hiring a competent independent contractor because the contractor lacked adequate liability insurance and financial resources. The Kings filed a second motion for partial summary judgment on the issue of liability against Lens Creek, contending that they were entitled to judgment as a matter of law because the operation of the logging truck by Dallas Holstein was an inherently dangerous activity, as recognized by West Virginia law, 6 and that the negligence of Mr. Holstein should therefore be imputed to Lens Creek.
Conversely, the record indicates that Lens Creek also filed two motions for partial summary judgment. The first motion requested the circuit court rule as a matter of law that a negligent hiring cause of action does not turn on the independent contractor's financial responsibility, in other words, competency does not equate with financial responsibility. Lens Creek's second motion for partial summary judgment requested the circuit court rule as a matter of law that the negligence of an independent contractor, while operating an empty logging truck, should not be imputed to the principal who has contracted for services, because the operation of the empty logging truck is not an inherently dangerous activity.
The circuit court, in its order of October 26, 1995, sorted through all of these various motions for partial summary judgment--with their diverse and alternate theories of liability or lack thereof--and found a genuine issue of fact existed upon the Kings' theory of liability asserted under a negligent hiring standard of liability, and also concluded that the operation of an empty commercial logging truck is not an inherently dangerous activity. As a result, the circuit court denied the parties' cross-motions for summary judgment on the negligent hiring issue, granted Lens Creek's motion for summary judgment that the operation of an empty logging truck is not inherently dangerous, and certified the two questions we have previously noted.
We review questions of law answered and certified by a circuit court under a de novo standard. Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
The circuit court's first certified question to this Court is framed as follows:
Whether in a commercial transaction an independent contractor who lacks adequate liability insurance or financial resources to respond in damages is incompetent per se such that liability for the contractor's negligence will be imposed upon the employer, regardless of the independent contractor's skills?
The general rule in this State is that "where one person has contracted with a competent person to do work, not in itself unlawful or intrinsically dangerous in character, and who exercise[s] no supervision or control over the work contracted for, such person is not liable for the negligence of such independent contractor or his servants in the performance of the work." Syllabus Point 1, Chenoweth v. Settle Eng'rs, Inc., 151 W.Va. 830, 156 S.E.2d 297 (1967), overruled, in part, on other grounds by Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). See also Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d 922 (1995).
We recently had occasion to address what appears to be for the first time the imposition of liability...
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