SYLVIA WORLEY v. JAMIE DUGGER
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RENDERED: DECEMBER 14, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002207-MR
SYLVIA WORLEY
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
CIVIL ACTION NO. 03-CI-00678
JAMIE DUGGER
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; ROSENBLUM,1 SENIOR JUDGE.
ROSENBLUM, SENIOR JUDGE: Sylvia Worley appeals from a summary judgment
entered by the Whitley Circuit Court in favor of Jamie Dugger. Finding no error, we
affirm.
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Dugger entered into a logging contract in May 2003 with Tommy Thomas
to cut timber from part of her property. During Thomas' cutting, he crossed upon
Worley's land and took trees valued at over $1,300. Worley brought suit against both
Thomas and Dugger seeking compensatory damages for the wrongful taking of timber
pursuant to KRS2 364.130. On August 14, 2006, just prior to a bench trial, Dugger sought
and was granted summary judgment. The trial court's dismissal of Dugger was based
upon its finding that Thomas was acting as an independent contractor at the time he
wrongfully took timber from Worley's property. On December 30, 2003, a default
judgment was entered against Thomas on the issue of liability. On August 21, 2006,
Worley moved to alter, amend or vacate the summary judgment which was denied just
prior to the start of the trial on damages against Thomas. This appeal followed.
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, 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 a judgment as a matter of law.” CR3 56.03. The circuit
court must view the record “in a light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). On
appeal, the standard of review is “whether the trial court correctly found that there were
2
Kentucky Revised Statutes.
3
Kentucky Rules of Civil Procedure.
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no genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
Worley argues that the trial court erred in entering the summary judgment in
favor of Dugger. We disagree.
Worley contends that genuine issues of material fact remained and thus
Dugger was improperly granted summary judgment. The only evidence properly before
the trial court when it made the summary judgment ruling were the depositions of
Dugger, Thomas, Worley's sons, Wade and Jeff Siler, and two timber purchasers, Keith
Rowe and Anthony Hacker. Worley avers that “[i]f all of Thomas' deposition testimony
is considered as a whole, he is actually saying that Dugger told him her property line was
'around the creek' or 'pretty close to the creek' and that her property line went to some
markers that he claimed he could not find.” Worley further alleges that this testimony
coupled with “Wade Siler's testimony that Thomas told him that Dugger said he could log
on the level area where he was logging, was sufficient to create a fact issue that should
have defeated Dugger's motion for summary judgment.”
In its Findings of Fact and Summary Judgment, the trial court stated:
[t]he sole issue for the Court to decide is whether Tommy
Thomas was acting as an independent contractor at the time
when he wrongfully took timber from the plaintiff. The
Deposition of Tommy Thomas, taken on September 30, 2004,
clearly shows Tommy Thomas knowingly cut timber on
Plaintiff's property. Mr. Thomas was instructed by Mrs.
Dugger not to cut timber on [Worley's] property (Thomas
Dep. pg. 28). Thomas, admitted that he was told by defendant
Dugger not to go over the creek, a reference to property lines
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existing between Dugger and Thomas (sic). At his
deposition, Thomas was asked . . . . “Okay, so she told you
not to go over the creek?” In response to this question,
Thomas responded, “That's right. Well she --- yeah, she said
the line was, you know, pretty close to where that creek goes
in there.” (Deposition of Tommy Thomas, at page 14,
numerical lines 1-3). In fact, when Defendant Thomas is
asked, “Alright, and she told you not to log over past some
markers?” Defendant Thomas admits, “That's right.” . . .
Based upon these findings, the trial court granted summary judgment to Dugger stating
that “there is no question that defendant Tommy Thomas acted as an independent
contractor at all times when he cut timber from the parties' property . . . .” There were no
genuine issues of material fact about whether Thomas was told not to log beyond the
borders of Dugger's property as he admitted as much under oath. Although Worley
contends that Siler's deposition testimony raises a genuine issue of material fact, we
disagree. During his deposition, Siler stated:
[w]ell, we went over and we was looking and we could hear a
log skidder coming out of the woods from the Dugger side,
and he come down and we stopped him, and my brother asked
him, he said, who told you to cut that he said Jaime. He said
Jamie don't own that. He said oh yeah she's going to put
trailers on it and rent them. He said no she ain't.
(Emphasis added). Siler's testimony was ambiguous and confusing at best. Moreover,
even assuming the truth of Siler's statement, Thomas was upon Dugger's property at the
time of the conversation and consequently meant Dugger intended to put trailers upon her
own property. Nothing from Siler's testimony leads us to believe that a genuine issue of
material fact existed concerning whether Dugger told Thomas to cut timber on Worley's
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property, especially in light of the uncontroverted admission of Thomas that he was
indeed told by Dugger to only cut timber from her (Dugger's) land and not to go beyond
the creek and boundary markers. Thus, the only issue then is whether Dugger could still
have been held liable for Thomas' actions as an independent contractor.
Worley also alleges that Dugger is vicariously liable for Thomas' wrongful
timber harvest because she failed to adequately instruct him. Again, we disagree.
In support of her argument, Worley cites Gum v. Coyle, 665 S.W.2d 929
(Ky.App. 1984) wherein this Court held a landowner liable for cutting trees from
neighboring land. However, Gum is clearly distinguishable upon its facts from the
present case. Gum was held liable because he cut trees from the neighboring land in spite
of not knowing where the boundary lines were located. Gum, 665 S.W.2d at 930. Here,
Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond
the creek. Thomas, upon his own initiative and contrary to Dugger's instructions, crossed
the creek onto Worley's land. Worley also cites cases from other states which we find
neither relevant nor binding.
During his deposition, Thomas testified that he was a “Kentucky Certified
Master Logger.” As a certified logger, Thomas should have been familiar with his duty
to observe boundary lines to avoid the possibility of liability pursuant to KRS 364.130.4
4
KRS 364.130 provides, in pertinent part, that:
Except as provided in subsection (2) of this section, any person
who cuts or saws down, or causes to be cut or sawed down with
intent to convert to his own use timber growing upon the land of
another without legal right or without color of title in himself to the
timber or to the land upon which the timber was growing shall pay
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Moreover, Thomas' contract with Dugger clearly identifies him as a “contractor.” In
Kentucky, as a general rule employers are not vicariously liable for the acts of
independent contractors. See e.g., Turner v. Lewis, 282 S.W.2d 624 (Ky. 1955); City of
Winchester v. King, 266 S.W.2d 343 (Ky. 1954). In Turner our Kentucky Supreme Court
stated:
[w]e have held consistently that the right of control of the
work, and the methods of its performance, are determinative
on the question of whether one is a servant or an independent
contractor. If the employer retains the right to control the
work and the manner in which it is done, those doing the
work are servants. On the other hand, if an employee has the
right to control the manner of work and the right to determine
the means by which results are accomplished, he is deemed an
independent contractor and the employer is not responsible
for his negligence.
282 S.W.2d at 625 (citations omitted). The exception to the general rule is that if the
work to be performed is either a nuisance or is inherently dangerous, the employer will
not be absolved from liability. See Miles Farm Supply v. Ellis, 878 S.W.2d 803 (Ky.App.
1994).
Section 427 of the Restatement of Torts 2d, in dealing with employers of
contractors, provides:
[o]ne 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 he contemplates or has reason to
to the rightful owner of the timber three (3) times the stumpage
value of the timber and shall pay to the rightful owner of the
property three (3) times the cost of any damages to the property as
well as any legal costs incurred by the owner of the timber.
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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 danger.
Worley does not cite, nor are we aware, of any relevant authority holding that timber
cutting is “work involving a special danger” as contemplated by the Restatement and
Miles Farm Supply. Here, the trial court properly found that Thomas was an independent
contractor because Thomas controlled the manner of the timber cutting as well as the
means he would use to complete the job. Under the facts of this case, the work of cutting
timber upon Dugger's land was neither a nuisance nor inherently dangerous. Thus,
Dugger could not be held liable for Thomas' negligent work. Accordingly, the trial court
properly granted Dugger's motion for summary judgment.
The judgment of the Whitley Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David O. Smith
Marcia A. Smith
Corbin, Kentucky
John Gary McNeill
Evan Bennett Jones
Lexington, Kentucky
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