CRIDER (JAMES D), ET AL. VS. MONARCH ENGINEERING INC. , ET AL.Annotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES D. CRIDER, SR., AND
SHARON MILLS, CO-EXECUTORS
OF THE ESTATE OF JAMES D. CRIDER, JR.
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 02-CI-00070
MONARCH ENGINEERING INC.;
DAVID M. BOWLES; DERON BYRNE;
ALLAN FARRIS; CALDWELL TANKS INC.;
RUSTY SPANGLER; BRYANT WILLIARD;
JOHN HAVRON; WESTERN ROCKCASTLE
WATER ASSOCIATION INC.; AND CHARLES
** ** ** ** **
BEFORE: CLAYTON AND STUMBO, JUDGES; GRAVES,1 SENIOR JUDGE.
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
CLAYTON, JUDGE: The parents of decedent James D. Crider, Jr. bring this
appeal from a decision of the Lincoln Circuit Court finding that the action brought
by the appellants should be dismissed. We agree with the decision of the trial
Mr. Crider was a 32-year-old painter who died as the result of a fall
while he was working on a water tower. His parents brought a wrongful death
action in the Lincoln Circuit Court arguing that one or all defendants were liable
for negligence which caused his death. The defendants were Western Rockcastle
Water Association Inc. (“Western”) and its president, Charles Burton; Monarch
Engineering (“Monarch”) and its employees Allan Terry Farris, David Michael
Bowles and Deron Byrne; Caldwell Tanks Inc. (“Caldwell”) and its employees,
John Havron, Rusty Spangler and Bryant Williard.
Western contracted to have the water tower erected on its property. It
hired Monarch to develop the plans and specifications for the tower. Caldwell
actually constructed the water tower. Mr. Crider was an employee of Select
Coatings, Inc., which contracted with Caldwell to perform the painting on the
water tower. The appellants filed a workers’ compensation claim and received
benefits from the insurer of Select, AmComp.
The Appellants brought an action asserting that their son was a
business invitee at the worksite and that all the appellees owed him a duty to
exercise reasonable care in making the premises safe for his use. They argue that
this duty included the duty to investigate and discover unsafe conditions on the
premises and to make them safe or to warn Mr. Crider of any such conditions.
The trial court granted summary judgment to Caldwell and dismissed
Monarch and Western. This appeal followed.
STANDARD OF REVIEW
An appellate court’s role in reviewing a summary judgment is to
determine whether the trial court erred in determining that no genuine issue of
material fact exists and that the moving party was entitled to judgment as a matter
of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). A summary judgment
is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon
Area Community Services, Inc., 210 S.W.3d 188 (Ky. App. 2006), citing Blevins v.
Moran, 12 S.W.3d 698 (Ky. App. 2000). Summary judgment is proper where
there exists no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03;
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).
“In the context of a motion to dismiss for failure to state a claim upon
which relief can be granted, the analysis is somewhat different. ‘The court should
not grant the motion unless it appears the pleading party would not be entitled to
relief under any set of facts which could be proved in support of his claim.’ In
making this decision, the circuit court is not required to make any factual
determination; rather, the question is purely a matter of law. Stated another way,
the court must ask if the facts alleged in the complaint can be proved, would the
plaintiff be entitled to relief?” James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App.
2002) (quoting Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFLCIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)).
A trial court should not grant a motion to dismiss “unless it appears
that the pleading party would not be entitled to relief under any set of facts which
could be proved in support of his claim.” Id. Allegations made in the pleadings
are taken as true and must be liberally construed in the light most favorable to the
plaintiff. Gall v. Scroggy, 725 S.W.2d 867 (Ky. App. 1987). The granting of a
motion to dismiss is subject to de novo review. James, supra; Revenue Cabinet v.
Hubbard, 37 S.W.3d 717 (Ky. 2000).
In granting Caldwell’s motion for summary judgment, the trial court
[T]here is no genuine issue as to the material facts that
establish as a matter of law that Caldwell Tanks, Inc. is a
contractor within the meaning of the provisions of KRS
Chapter 342, that workers’ compensation benefits to
which the decedent and his estate are entitled were in fact
provided, that the work being performed by James
Crider, Jr. at the time of his death is a regular or recurrent
part of the work of the trade of constructing water storage
facilities, and that therefore, as a matter of law, Caldwell
Tanks, Inc. and its employees are entitled to invoke the
immunity from tort liability which is afforded to them
under the provisions of KRS Chapter 342.
Order at p. 6.
KRS 342.690 provides that:
(1) If an employer secures payment of compensation as
required by this chapter, the liability of such employer
under this chapter shall be exclusive and in place of all
other liability of such employer to the employee, his . . .
parents . . . and anyone otherwise entitled to recover
damages from such employer at law . . . on account of
such injury or death.
Under this provision, an employee or his representative’s only remedy
in an accident while he was performing his duties as an employee against his
employer is through workers’ compensation. Select was a sub-contractor on the
water tower project and, consequently, KRS 342.610 applies. It provides that:
(2) A contractor who subcontracts all or any part of a
contract and his carrier shall be liable for the payment of
compensation to the employees of the subcontractor
unless the subcontractor primarily liable for the payment
of such compensation has secured the payment of
compensation as provided for in this chapter. Any
contractor or his carrier who shall become liable for such
compensation may recover the amount of such
compensation paid and necessary expenses from the
subcontractor primarily liable therefor. A person who
contracts with another:
(b) To have work performed of a kind which is a regular
or recurrent part of the work of the trade, business,
occupation, or profession of such person
shall for the purposes of this section be deemed a
contractor, and such other person a subcontractor.
In this action, Select was the subcontractor for Caldwell. Caldwell’s
business is the fabricating and construction of water tanks. The appellants contend
that the trial court erred in determining that the painting of the water tanks would
be a regular or recurring part of Caldwell’s business. Also, they assert that such is
a question of fact for a jury to decide rather than a legal question for the court.
In Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459
(Ky. 1986), the Supreme Court of Kentucky held that a job could be regular or
recurring even if the contractor never used his own employees to fill the job. The
painting of a water tank would be work which would be a recurrent part of the
business of constructing water tanks. Select was hired by Caldwell to perform the
job and Select had workers’ compensation coverage. Thus, the Lincoln Circuit
Court was correct in holding that Caldwell and its employees were immune from
suit based upon the exclusive remedy provisions of the Kentucky Workers’
The trial court also held that KRS Chapter 342 workers’ compensation
provisions precluded the appellants’ suit in tort against Monarch.
The trial court dismissed Western and Charles Burton as defendants in
its order dated April 18, 2002. The court found that Western could not legally be
held responsible for actions of its subcontractors. The appellants assert that the
trial court should not have dismissed Western and Mr. Burton due to the agency
relationship between Western and Monarch which imposed vicarious liability on
Western. In support of this argument, they point first to the contract between
Western and Monarch. Appellants contend that Western had constructive notice of
the water tower’s dangerous conditions because Monarch was aware of them.
Agency is a fiduciary relationship which results from the
manifestation of consent by the principal to the agent that the agent may act on
behalf of the principal subject to control and consent by the agent to act. Thomas
v. Hodge, 897 F. Supp. 980 (W.D.Ky. 1995). The existence of a principal/agent
relationship is a legal issue with the burden of proving the agency relationship
placed upon the party asserting that it exists. Wright v. Sullivan Payne Co., 839
S.W.2d 250 (Ky. 1992).
The appellants point to the contract between Western and Monarch as
an indication of agency; however, they do not allege specific facts and have failed
to sustain their burden of proof. Thus, the trial court correctly concluded that
Western and Monarch had no agency relationship and that Western could not be
held vicariously liable.
Finally, appellants contend that Western was liable as Mr. Crider was
a business invitee on the premises. They argue that Western had a duty to make
the premises safe for his use during his time there. Specifically, appellants argue
that Western knew of the danger of the lack of grate in the water tower, but did
nothing to protect Mr. Crider.
“An invitee enters upon the premises at the express or implied
invitation of the owner or occupant on business of mutual interest to them both, or
in connection with business of the owner or occupant.” Scuddy Coal Co. v. Couch,
274 S.W.2d 388, 390 (Ky. 1955). Mr. Crider was an employee of a subcontractor
working on the construction project of Western.
In Ralston Purina Co. v. Farley, 759 S.W.2d 588-89 (Ky. 1988), the
Court found that an owner was under a duty to advise a contractor of any hidden
dangers on the property of which are known or should be known to the owner. The
lack of a grate in the water tower project was not a hidden danger, thus, the trial
court was correct in granting summary judgment on the issue of premises liability.
We find the appellant’s argument regarding the unconstitutionality of
the Workers’ Compensation Law to be without merit.
We affirm the trial court’s decision in its entirety.
BRIEFS FOR APPELLANTS:
John M. Longmeyer
BRIEF FOR APPELLEES
MONARCH ENGINEERING INC.,
DAVID M. BOWLES, DERON
BYRNE, ALLAN FARRIS,
WESTERN ROCKCASTLE WATER
ASSOCIATION INC., CHARLES D.
Jerry J. Cox
Carrie C. Mullins
Mt. Vernon, Kentucky
BRIEF FOR APPELLEES
CALDWELL TANKS INC., RUSTY
SPANGLER, BRYANT WILLIARD,
Robert Michael Connolly
Julie McDonnell Payne