DONNA HARGIS, INDIVIDUALLY AND DONNA HARGIS AS ADMINISTRATRIX OF THE ESTATE OF DARRELL RUBEN HARGIS, DECEASED; ZACHARY HARGIS, A MINOR, AND CHRISTIAN HARGIS, A MINOR, THROUGH DONNA HARGIS AS NEXT FRIEND v. ALLEN R. BAIZE, D/B/A GREENVILLE LOG AND LUMBER; AND BAIZE FOREST PRODUCTS, INC.
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RENDERED:
October 18, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002246-MR
DONNA HARGIS, INDIVIDUALLY AND
DONNA HARGIS AS ADMINISTRATRIX OF
THE ESTATE OF DARRELL RUBEN HARGIS, DECEASED;
ZACHARY HARGIS, A MINOR, AND
CHRISTIAN HARGIS, A MINOR, THROUGH
DONNA HARGIS AS NEXT FRIEND
v.
APPELLANTS
APPEAL FROM MUHLENBERG COUNTY CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 99-CI-00515
ALLEN R. BAIZE,
D/B/A GREENVILLE LOG AND LUMBER;
AND BAIZE FOREST PRODUCTS, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND MILLER, JUDGES.
BARBER, JUDGE:
The Appellants, Donna Hargis, individually and as
Administratrix of the Estate of Darrell Ruben Hargis, deceased;
Zachary Hargis, a minor and Christian Hargis, a minor, through
Donna Hargis, as Next Friend (“Appellants”), seek review of an
order of the Muhlenberg Circuit Court granting summary judgment
in favor of the Appellees, Allen R. Baize d/b/a Greenville Log
and Lumber and Baize Forest Products (“Appellees”).
error, we affirm.
Finding no
The essential facts are not in dispute.
On November
24, 1998, the decedent, Darrell Hargis, (“Hargis”) a truck
driver, was struck and killed by a log which fell from a trailer
he was unloading on Appellees’ premises.
On November 19, 1999,
Appellants filed a complaint in the Muhlenberg Circuit Court
alleging that on the date of his death, Hargis “was acting as an
independent contractor delivering raw wood product to the
Defendants, Greenville Log and Lumber and/or Baize Forest
Products, Inc., and as an independent contractor had permission
to be on the property.”
Appellants alleged, inter alia, that
Hargis’s “injuries and death were the proximate result of
Defendants’ negligence” and that “Defendants failed to comply
with certain administrative regulations”1 constituting negligence
per se.
On May 24, 2001, Appellees moved for summary judgment,
asserting that Hargis had signed a release absolving them from
any liability; that Appellants’ acts or omissions were not the
proximate cause of Hargis’s death; and that Appellants’ claim of
statutory negligence must fail, because OSHA and KOSHA apply to
employers and employees, and Hargis was an independent
contractor.
Appellants filed a cross-motion for summary judgment
on the issue of negligence per se.
On October 9, 2001, the trial court entered an order
granting summary judgment in the Appellees’ favor:
1
Specifically, the Kentucky Occupational Safety and Health Act
(KOSHA), 803 KAR 2:317; and the federal Occupational Safety and
Health Act (OSHA), 29 C.F.R. § 1910.265.
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Plaintiffs’ decedent, Darrell Hargis, was an
independent contractor working for Defendant,
Greenville Log and Lumber. On the date of
his death, Darrell Hargis, was hauling lumber
from a business in Campbellsville, Kentucky,
to Greenville Log and Lumber . . . . When he
arrived at Greenville Log and Lumber, Hargis
unstrapped his load of lumber. As he
unstrapped his load [sic], Hargis was hit and
killed by a falling log. Hargis had
overloaded his haul, meaning that when his
truck was loaded the logs exceeded the height
of the standards on the truck.
The owner of premises, such as Greenville Log
and Lumber, owes a duty to an independent
contractor, such as Darrell Hargis. That
duty is set forth in Ralston Purina Co. v.
Farley, Ky. 759 S.W.2d 588 [589] (1988):
The owner of premises is not
responsible to an independent
contractor for injury from defects
or dangers which the contractor
knows of, or ought to know of. But
if the defect or danger is hidden
or known to the owner, and neither
known to the contractor, nor such
as he ought to know, it is the duty
of the owner to warn the
contractor.
Accordingly, Greenville Log and Lumber was
under no duty to warn Hargis of the danger
which Hargis knew, or ought to know. The
danger was created by Hargis as it was Hargis
who caused the truck to be overloaded.
Additionally, Hargis had been advised by
Greenville Log and Lumber personnel that it
was dangerous. Further, as a matter of law,
the alleged negligence on the part of the
Defendants as stated by the Plaintiffs was
not a substantial factor in causing the
accident. The approximate [sic] cause of the
accident was Hargis overloading his truck and
unstrapping the binders.
The trial court considered two remaining issues, noting
that their resolution was not necessary to dispose of the motion
for summary judgment.
The court considered the release Hargis
had signed to be an enforceable contract, supported by
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consideration and not against public policy; further, that Hargis
was an independent contractor, not an employee, thus a negligence
per se argument for violation of OSHA/KOSHA did not apply.
On October 17, 2001, Appellants filed a notice of
appeal to this Court.
On appeal, Appellants assert:
(1)
That they are entitled to summary
judgment on the issue of negligence per
se;
(2)
That it was error to grant summary
judgment, because Appellees failed in
their duty to warn Hargis; or that “at
the very least” it was for the jury to
decide whether a warning had been
provided.
(3)
That it was error to grant summary
judgment, because violation of OSHA and
KOSHA establishes proximate cause.
(4)
That it was error to conclude that the
document signed by Hargis was a valid
contract and release; in the
alternative, that it was void.
The standard of review of a summary judgment is whether
the trial court correctly found that there were no genuine issues
as to any material fact and that the moving party was entitled to
judgment as a matter of law.
There is no requirement that we
defer to the trial court, because factual findings are not at
issue.2
We shall address the second issue first.
Appellants
argue that Appellees failed to establish that they had warned
Hargis about the log loads or that -- at the very least -- the
sufficiency of the warning was for a jury to decide.
2
Appellants
Scrifes v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
-4-
appear to have misperceived the basis for the trial court’s
ruling.
The trial court entered summary judgment for Appellees
on the ground that they had no duty to warn, citing Ralston
Purina, supra.
Appellants do not contend that Hargis was unaware
of the danger; to the contrary, Appellants acknowledge that
Robbie Baize testified that he had talked to Hargis about his log
loads.
The trial court correctly determined that Appellees had
no duty to warn Hargis of a danger which he knew, or ought to
have known, under the undisputed facts of this case.
Appellants also assert that proximate cause was
established “as a matter of law,” because OSHA and KOSHA
violations must be considered as the proximate cause of the
injury, where the injury complained of is one intended to be
prevented by the statute.
The trial court rejected this argument
because Hargis was not a member of the protected class, citing
Carman v. Dunaway Timber Co.3
Louis Carman was a logger, who purchased standing
timber from property owners, cut it and sold the logs to timber
mills.
On the date of the accident, he was delivering a load of
logs to Dunaway's mill.
Carman's son, Doug Carman, had loaded
the logs onto Carman's truck, which were secured by chains
fastened to the truck by chain binders.
The chains and binders
were applied to the load by Doug Carman’s employees.
One of
those employees, a man named Woods, rode with Louis Carman to
3
Ky., 949 S.W.2d 569 (1997).
-5-
Dunaway's place of business so that Carman could give him a ride
home after the logs were delivered and sold.
Dunaway's policy required all loggers to unchain their
own loads before Dunaway would accept ownership of the logs.
Once unchained, Dunaway would unload the logs with a front-end
loader.
Pursuant to this policy, Carman and Woods proceeded to
remove the binders and unchain the logs.
Woods loosened the
binders and Carman removed the chains by pulling them.
When the
middle chain was released, a log fell from the truck and struck
Carman, severely injuring him.
Carman premised his action on Dunaway's failure to
comply with certain administrative regulations promulgated
pursuant to KOSHA, specifically 803 KAR 2:317.
This regulation
is an incorporation by reference of a federal regulation
promulgated pursuant to the federal OSHA, 29 C.F.R. §
1910.265(d)(1)(i)(b).4
The regulation provides that binders
shall not be released prior to securing the logs with unloading
lines or other unloading device.
The Appellant argued that the
regulation established Dunaway's standard of care and that the
violation of this regulation constituted negligence per se.
The Supreme Court explained that in order for a
violation of a regulation to constitute negligence per se, the
plaintiff must be a member of the class of persons intended to be
protected by the regulation, and the injury suffered must be an
event which the regulation was designed to prevent.
4
If both
The same regulations which Appellants maintain apply in this
case.
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elements are present, negligence per se is established and the
applicable regulation defines the relevant standard of care.
However, Louis Carman was not a member of the class of persons
intended to be protected, because he was not an employee of
Dunaway.
The Court explained that:
KRS 338.011 clarifies that the purpose of the
Kentucky Occupational Safety and Health Act
is the prevention of "any detriment to the
safety and health of all employees, both
public and private, covered by this chapter
. . . ." (Emphasis added.) KRS
338.031(1)(a) requires each employer to
"furnish to each of his employees employment
and a place of employment which are free from
recognized hazards that are causing or are
likely to cause death or serious physical
harm to his employees." (Emphasis added.)
KRS 338.015(2) defines an "employee" as "any
person employed . . . ", and KRS 338.015(1)
defines an "employer" as "any entity for whom
a person is employed . . . ." Louis Carman
was not an employee, and certainly not
Dunaway's employee; thus, he was not within
the class of persons which the KOSHA
regulations were designed to protect.5
The Supreme Court also explained that Teal v. E.I.
DuPont de Nemours and Company,6 did not apply.
Teal would extend
the coverage of the federal OSHA to employees of independent
contractors who work at another employer's workplace; however,
Carman, was not an employee of an independent contractor.
Neither was Hargis.
We fully agree with Appellees that Carman is “directly
on point and controls the outcome in this case.”
5
Therefore, we
Carman at 570.
728 F.2d 799 (6th Cir. 1984); Teal is also relied upon by
Appellants.
6
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do not find it necessary to reach the remaining issues Appellants
have raised.
We affirm the Order of the Muhlenberg Circuit Court
granting summary judgment for Appellees.
HUDDLESTON, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS BY SEPARATE OPINION:
MILLER, JUDGE, CONCURRING: I concur in the majority
opinion, but wish to make an observation.
It seems reasonable to me that OSHA/KOSHA protection
should be extended to both subcontractors and employees of
subcontractors in order to further the intent of the acts.
I
liken this to an employer’s responsibility, under the Workers’
Compensation Act, to employees of an uninsured subcontractor.
Nevertheless, the Supreme Court has addressed the issue
in the case of Carman v. Dunaway Timber Company, Inc., Ky., 949
S.W.2d 569 (1997).
I perceive that case to be indistinguishable.
We are bound under the authority of SCR 1.030(8)(a).
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jonathan S. King
Central City, Kentucky 42330
Elizabeth Ullmer Mendel
Alice Barns Herrington
Louisville, Ky. 40202
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Jonathan S. King
Elizabeth Ullmer Mendel
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