McCubbin By and Through McCubbin v. Walker, 68858

• Decision Date: 09 December 1994
• Docket Number: No. 68858,68858
• Parties: Paul McCUBBIN, By and Through his guardian, Sheila McCUBBIN, Appellant, v. Jerald WALKER and Carol A. Walker, d/b/a Valley Market, Appellees.
• Court: Kansas Supreme Court

Page 790

886 P.2d 790

256 Kan. 276

Paul McCUBBIN, By and Through his guardian, Sheila McCUBBIN, Appellant, v. Jerald WALKER and Carol A. Walker, d/b/a Valley Market, Appellees.

No. 68858.

Supreme Court of Kansas.

Dec. 9, 1994.

Syllabus by the Court

1. Rules governing summary judgment are stated and applied.

2. An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work.

3. Legal principles and factors to be considered in determining independent contractor status are stated and applied.

4. The single most important factor in determining a worker's status as an employee or independent contractor is whether the employer controls, or has the right to control, the manner and methods of the worker in doing the particular task. In addition, for a person to be an employee or an independent contractor, there must be a contractual relationship between the person desiring to have the work done and the person doing the work.

5. As a general rule, when a person (a contractee) lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

6. An exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the inherently dangerous activity doctrine, which provides that one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such dangers.

7. While some cases hold that the substance or subject matter of the activity is so volatile that the particular activity is presumed to fall within the inherently dangerous activity doctrine, the vast majority of cases recognize that most activities do not fall within the doctrine. If the doctrine is applicable, the alleged dangerous nature of the activity must be the cause of the injury suffered. Even though an activity may be inherently dangerous, if the danger is not the cause of the injury there is no liability on the employer-contractee.

8. An undertaking cannot be termed inherently dangerous merely because it may possibly produce injury--rather, the intrinsic danger of the work upon which the doctrine is based is danger which inheres in the performance of the contract resulting directly from the work to be done and not from the collateral negligence of the contractor.

9. Tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Donald Arthur McKinney, of Michaud, Hutton, Fisher & Andersen, Wichita, argued the cause, and Derek S. Casey, of the same firm, and Donald L. Hochanadel, Overland Park, were with him on the briefs, for appellant.

Jonathan L. Laurans, of Niewald Waldeck & Brown, Kansas City, MO, argued the cause, and Brian G. Boos, of the same firm, Overland Park, was with him on the briefs, for appellees.

HOLMES, Chief Justice:

Plaintiff, Paul McCubbin, by and through his guardian Sheila McCubbin, appealed a district court decision granting summary judgment in a personal injury action to the defendants, Jerald and Carol Walker. The Court of Appeals, in an unpublished opinion filed November 12, 1993, 862 P.2d 1104, affirmed the district court decision in part, reversed it in part, and remanded the case for further proceedings. The defendants filed a petition for review, and the plaintiff filed a cross-petition for review. We granted both petitions. We now affirm the summary judgment granted by the trial court.

The facts are outlined in the Court of Appeals opinion as follows:

"Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald Walker (hereinafter Walker) often used temporary help to perform odd jobs, such as painting, light carpentry, and other general maintenance duties, at the market and his other various rental properties. Walker viewed these individuals as 'contract labor' rather than as traditional employees; Walker would decide on the job to be done and then negotiate with an individual about the cost of performance.

"Two such individuals who frequently performed odd jobs for Walker were Gene Moser and Paul McCubbin. In April of 1989, Walker contacted Moser about a job involving trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30. Moser, in turn, contacted McCubbin to help him trim the trees, and the two agreed to split the $30.

"The two men showed up to perform the job on April 15, 1989. Moser provided all of the equipment. Moser and McCubbin trimmed two branches from one tree and moved onto a second tree. One of the trimmed branches from the second tree struck McCubbin as it fell, causing McCubbin severe and permanent injuries.

"McCubbin's guardian initially filed a workers compensation claim, arguing that McCubbin was an employee of Walker. The administrative law judge (ALJ) held that the parties did not fall within the purview of the Kansas Workers Compensation Act as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. See K.S.A. 44-503; K.S.A. 44-505. The ALJ found that both Moser and McCubbin were independent contractors.

"McCubbin's guardian next filed suit in district court, alleging that McCubbin's injuries were the direct and proximate result of Walker's and Moser's negligence. Walker moved for summary judgment, arguing that no material questions of fact remained to be resolved and that tree trimming was not an inherently dangerous activity which would give Walker a nondelegable duty to warn McCubbin of the dangers involved. Walker further argued that he was under no duty to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees.

"McCubbin strenuously objected to Walker's motion for summary judgment on the grounds that many genuine issues of material fact were not yet resolved and were best left for a jury to decide. However, the trial court granted Walker's motion, finding that assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin's injuries were caused by his and Moser's actions and not by a condition of the premises. The court also found that McCubbin was an independent contractor, although McCubbin's status as an employee or independent contractor was immaterial, based on its ruling. Finally, the court held that whether the activity in question was inherently dangerous was a question of fact, but in light of the court's holding of no breach of duty, the issue was moot."

Following the trial court's entry of summary judgment in favor of the Walkers, plaintiff dismissed the action, without prejudice, as to the defendant Moser, thereby making the court's action a final appealable order.

The Court of Appeals reversed the summary judgment, holding that whether McCubbin was an employee of Walker or an independent contractor was a question of fact to be determined by a jury and that whether tree trimming was an inherently dangerous activity was also a disputed question of fact for the jury. Other issues raised on appeal by McCubbin were affirmed by the Court of Appeals.

Defendants in their petition seek review of two issues:

1. Whether the inherently dangerous exception to the general rule of nonliability of a landowner extends to employees of an independent contractor; or

2. whether, under the facts of this case, tree trimming is an inherently dangerous activity.

Plaintiffs in their cross-petition for review assert three issues:

3. Whether the Court of Appeals relied improperly upon the assumption of risk defense as a basis for nonliability of defendants as employers of McCubbin.

4. Whether the Court of Appeals erred in affirming summary judgment on plaintiff's claim of negligent hiring.

5. Whether the Court of Appeals erred in affirming summary judgment on plaintiff's claim of premises liability.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A.1993 Supp. 60-256(c).

"An appellate court is required to read the record in the light most favorable to the party against whom summary judgment was entered. The appellate court takes the party's allegations as true, and it gives him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues are to be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will be denied. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. [Citation omitted.]

"Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. [Citation omitted.] When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a...