Larner v. Torgerson, 46533

• Decision Date: 26 June 1980
• Docket Number: No. 46533,46533
• Citation: 613 P.2d 780,93 Wn.2d 801
• Court: Washington Supreme Court
• Parties: Mark S. LARNER, Respondent, v. TORGERSON CORPORATION, a Washington Corporation, Petitioner.

Page 801

93 Wn.2d 801

613 P.2d 780

Mark S. LARNER, Respondent, v. TORGERSON CORPORATION, a Washington Corporation, Petitioner.

No. 46533.

Supreme Court of Washington, En Banc.

June 26, 1980.

Hackett, Beecher, Hart, Branom & Vavrichek, Steven A. Branom, K. C. Webster, Seattle, for petitioner.

Fitch & Ludwick, John H. Ludwick, Seattle, for respondent.

BRACHTENBACH, Justice.

This is a suit for damages for personal injuries suffered by plaintiff Mark S. Larner when several of his fingers were partially amputated while he was working on a forklift. The forklift had an electrical system defect which caused the starter motor to turn over without being activated by the operator. When plaintiff placed his hand on the fan belt while tuning the engine, the starter engaged spontaneously catching plaintiff's fingers between the belt and the pulley, severing the fingers.

The facts are important and will be reviewed in more detail after examination of the pleadings. Plaintiff alleged that he was employed by Glandon Machinery Company but that the forklift was leased to his employer, Glandon, by defendant Torgerson Corporation. His sole, original allegation of liability against Torgerson was that "defendant knew the equipment to be defective and negligently failed to warn about the danger in working on said equipment." Plaintiff later filed a notice of trial amendment of his pleadings, alleging "that the defendant should be held liable pursuant to the doctrine of vicarious liability in that Glandon Machinery Repair was negligent in the supervision and instruction to the plaintiff and that said failure to provide adequate supervision and instruction to the plaintiff was a proximate cause of plaintiff's injuries, and that Glandon Machinery Repair was a dependent contractor of Torgerson Corporation." We have not been offered any analysis or authority as to the meaning of a "dependent contractor."

Defendant, on a summary judgment motion, raised the bar of the workers' compensation statute, RCW 51.04.010. Defendant argued that if the corporation were the master of Glandon then the plaintiff was in the same employ and therefore the bar of the statute applied. The issue was again raised in defendant's motion for judgment notwithstanding the verdict, after a verdict in favor of the plaintiff. The same issue was raised in defendant's civil appeal statement to the Court of Appeals. Unfortunately, all briefs are silent on that vital issue.

The jury rendered a verdict for plaintiff and found him 10 percent contributorially negligent, thereby reducing his award of $27,500 to $24,750.

The Court of Appeals, in an unpublished opinion, affirmed plaintiff's judgment. We reverse and order the case dismissed on either of plaintiff's theories.

Defendant was a corporation owned by Lee Torgerson and his wife. The corporation had only two employees, Lee Torgerson and his secretary/bookkeeper. Defendant's business was that of buying and selling heavy construction equipment, primarily rock crushers. Some of the equipment required repair, painting or other refurbishing. Glandon, a former employee of Torgerson in another venture, wanted to start his own "shop". Torgerson did not want the difficulties of operating his own repair shop. Glandon and Torgerson Corporation entered into a verbal agreement whereby Glandon rented the repair shed on Torgerson's leased property. Torgerson provided a forklift and pickup for Glandon's use, without charge. Torgerson provided minimal bookkeeping services to Glandon without cost. Glandon had his own business license, hired and paid his employees and billed Torgerson for his own time and that of his employees. Torgerson had first call upon Glandon's shop for Torgerson's work, but Glandon was free to and did take on outside work, though minimal in amount. The relationship was terminable by either party.

Turning to the offending device, the forklift was a used machine purchased by Torgerson and furnished to Glandon so that he and his employees could load and unload the equipment to be serviced by Glandon. After the forklift had been at the yard for many months, it developed the electrical defect. Glandon and all his employees, including the plaintiff, knew about this propensity for the starter motor to engage unexpectedly. It is extremely doubtful whether Torgerson learned before the accident of the specific character of the lift as to its infrequent tendency to engage to the starter motor.

Considering first the issue of vicarious liability, whenever there is a relationship between a superior business party and a subordinate business party the relationship can be characterized as either one of master and servant or one of independent contractorship. In the leading case of Hollingbery v. Dunn, 68 Wash.2d 75, 411 P.2d 431 (1966), we said that this characterization is essentially a question of law but where the facts are in dispute or susceptible of more than one interpretation, then the relationship must be characterized by the trier of the facts. The factors to be considered are listed in the Restatement (Second) Agency § 220(2) (1958) and the most crucial factor is the right to control the details of the work. When a superior business party has retained no right of control and there is not reason to infer a right of control over a subordinate business party, then he cannot be held liable for the negligent acts of the subordinate party.

In this case the undisputed evidence shows that with respect to his repair work, Glandon was an independent contractor under Torgerson. The crucial factor is the lack of a right to control the details of the work...