King v. Lens Creek Limited Partnership
Annotate this Case
September 1996 Term
_____________
No. 23334
_____________
JOY F. KING AND DAVID L. KING, HER HUSBAND,
AND DAVID L. KING, NATURAL PARENT AND
NEXT FRIEND OF SHANNON KING, AN INFANT,
Plaintiffs, Petitioners
v.
LENS CREEK LIMITED PARTNERSHIP, A WEST VIRGINIA
LIMITED PARTNERSHIP; LONG MANAGEMENT COMPANY,
A WEST VIRGINIA CORPORATION; TOYOTA MOTOR SALES,
USA, INC., A CORPORATION; MID-ATLANTIC TOYOTA
DISTRIBUTORS, INC., A CORPORATION; AND BUD YOUNG
TOYOTA, INC., A WEST VIRGINIA CORPORATION,
Defendants
________________________________________________________________
Certified Question from the Circuit Court of Boone County
Honorable E. Lee Schlaegel, Jr., Judge
Civil Action No. 93-C-601
CERTIFIED QUESTION ANSWERED
________________________________________________________________
Submitted: September 24, 1996
Filed: December 16, 1996
Marc B. Chernenko, Esq. Joanna I. Tabit, Esq.
Wellsburg, West Virginia Steptoe & Johnson
and Charleston, West Virginia
Jerry W. Cook, Esq. and
Cook & Cook James J. MacCallum, Esq.
Madison, West Virginia Shaffer & Shaffer
Attorneys for the Kings Madison, West Virginia
Attorneys for Lens Creek & Long
E. W. Rugeley, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorneys for Toyota Companies
JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1996 Term
_____________
No. 23335
_____________
JOY F. KING AND DAVID L. KING, HER HUSBAND,
AND DAVID L. KING, NATURAL PARENT AND
NEXT FRIEND OF SHANNON KING, AN INFANT,
Plaintiffs
v.
LENS CREEK LIMITED PARTNERSHIP, A WEST VIRGINIA
LIMITED PARTNERSHIP; LONG MANAGEMENT COMPANY,
A WEST VIRGINIA CORPORATION; TOYOTA MOTOR SALES,
USA, INC., A CORPORATION; MID-ATLANTIC TOYOTA
DISTRIBUTORS, INC., A CORPORATION; AND BUD YOUNG
TOYOTA, INC., A WEST VIRGINIA CORPORATION,
Defendants
LENS CREEK LIMITED PARTNERSHIP, A WEST VIRGINIA
LIMITED PARTNERSHIP, AND LONG MANAGEMENT COMPANY,
A WEST VIRGINIA CORPORATION,
Petitioners
________________________________________________________________
Certified Question from the Circuit Court of Boone County
Honorable E. Lee Schlaegel, Jr., Judge
Civil Action No. 93-C-601
CERTIFIED QUESTION ANSWERED
________________________________________________________________
Submitted: September 24, 1996
Filed: December 16, 1996
Marc B. Chernenko, Esq. Joanna I. Tabit, Esq.
Wellsburg, West Virginia Steptoe & Johnson
and Charleston, West Virginia
Jerry W. Cook, Esq. and
Cook & Cook James J. MacCallum, Esq.
Madison, West Virginia Shaffer & Shaffer
Attorneys for the Kings Madison, West Virginia
Attorneys for Lens Creek & Long
E. W. Rugeley, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorneys for Toyota Companies
JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. In a negligent hiring cause of action, in which a principal may be
subjected to liability if he fails to exercise reasonable care in retaining a competent and
careful contractor who subsequently injures a third party, the financial responsibility of the
independent contractor is not an element to be considered in determining whether the
independent contractor is competent.
2. A principal has a non-delegable duty to exercise reasonable care when
performing an inherently dangerous activity; a duty that the principal cannot discharge by
hiring an independent contractor to undertake the activity.
3. To constitute an inherently dangerous activity, the work must be
dangerous in and of itself and not dangerous simply because of the negligent performance
of the work, and that danger must be naturally apprehended by the parties when they
contract. Only then will the work constitute an inherent danger that places a non-delegable
duty upon the one ordering it to protect third parties against the resulting injury.
Recht, Judge:See footnote 1
In this case we are presented with two certified questions from the Circuit
Court of Boone County regarding the liability of a principal, who retains an independent
contractor who lacks adequate liability insurance and injures a third party through the
negligent operation of an empty logging truck.
From this factual construct evolves the following certified questions and circuit
court's answers:
1. Whether in a commercial transaction an independent
contractor who lacks adequate liability insurance or financial
resources to respond in damages is incompetent per se such that
liability for the contractor's negligence will be imposed upon
the employer, regardless of the independent contractor's skills?
Circuit court's answer: YES
2. Whether the operation of an empty commercial log truck
upon the highways of our state is an inherently dangerous
activity such that [it] will impose the negligence of the truck
driver to his employer, regardless of the nature of the
employment relationship?
Circuit court's answer: NO
The certified questions are the result of the circuit court's denial of the parties'
motions for partial summary judgment. "West Virginia Code, 58-5-2 (1967), allows for certification of a question arising from a denial of a motion for summary judgment.
However, such certification will not be accepted unless there is a sufficiently precise and
undisputed factual record on which the legal issues can be determined. Moreover, such legal
issues must substantially control the case." Syllabus Point 5, Bass v. Coltelli, 192 W. Va.
516, 453 S.E.2d 350 (1994). Because there is a sufficiently precise and undisputed factual
record upon which the legal issues can be determined, and because these legal issues
substantially control this case, the questions are properly certified under W. Va. Code 58-5-2
(1967).See footnote 2 We therefore consider the questions certified by the circuit court and answer both
certified questions in the negative.
I.
FACTS
The defendant, Lens Creek Limited Partnership (hereinafter "Lens Creek"),See footnote 3
owns a parcel of land in Kanawha County approximately 2800 acres in size upon which
there is a quantity of standing timber. In January of 1988, Lens Creek entered into a "Timber
Agreement" with Frederick Gene Maloskey and Tommy D. Mann, d/b/a M & M
Trucking/Ashford (hereinafter "M & M"), whereby M & M would purchase timber located
on the Lens Creek property and transport the timber for sale to third-party buyers. In
addition to an initial purchase price, Lens Creek received a percentage of the gross income
from timber sold by M & M. Under the "Timber Agreement," M & M was required to carry
public liability insurance with coverage limits in the amount of $300,000 and property
insurance with coverage limits in the amount of $500,000.
Shortly after entering into the "Timber Agreement," M & M quit the timber
operation. Dallas C. Holstein and Clayton L. Holstein, who are brothers, assumed the
operation under the same terms previously agreed upon between Lens Creek and M & M.
On June 25, 1993, Dallas Holstein, who was returning to the Lens Creek
property after delivering a shipment of timber, entered Route 119 (also known as Corridor
G) without yielding the right of way, thereby causing a collision between the empty logging
truck he was operating and an automobile operated by one of the plaintiffs, Joy King, who was returning home from work.See footnote 4 As a result of the collision, Mrs. King suffered head and
internal injuries, incurring medical costs exceeding $110,000.00 and suffering over
$11,000.00 in lost wages.
This civil action was instituted in the Circuit Court of Boone County, which
was filed by Joy King, her husband David King, and a consortium claim brought on behalf
of their daughter, Shannon King. Among the defendants named were the Holsteins, Lens
Creek Limited Partnership, and Long Management Company.See footnote 5
The record indicates that the Kings filed two motions for partial summary
judgment. The first motion asserted that the Kings were entitled to judgment as a matter of
law that Lens Creek was negligent in hiring a competent independent contractor because the
contractor lacked adequate liability insurance and financial resources. The Kings filed a
second motion for partial summary judgment on the issue of liability against Lens Creek,
contending that they were entitled to judgment as a matter of law because the operation of
the logging truck by Dallas Holstein was an inherently dangerous activity, as recognized by West Virginia law,See footnote 6 and that the negligence of Mr. Holstein should therefore be imputed to
Lens Creek.
Conversely, the record indicates that Lens Creek also filed two motions for
partial summary judgment. The first motion requested the circuit court rule as a matter of
law that a negligent hiring cause of action does not turn on the independent contractor's
financial responsibility, in other words, competency does not equate with financial
responsibility. Lens Creek's second motion for partial summary judgment requested the
circuit court rule as a matter of law that the negligence of an independent contractor, while
operating an empty logging truck, should not be imputed to the principal who has contracted
for services, because the operation of the empty logging truck is not an inherently dangerous
activity.
The circuit court, in its order of October 26, 1995, sorted through all of these
various motions for partial summary judgment--with their diverse and alternate theories of
liability or lack thereof--and found a genuine issue of fact existed upon the Kings' theory of
liability asserted under a negligent hiring standard of liability, and also concluded that the
operation of an empty commercial logging truck is not an inherently dangerous activity. As
a result, the circuit court denied the parties' cross-motions for summary judgment on the negligent hiring issue, granted Lens Creek's motion for summary judgment that the operation
of an empty logging truck is not inherently dangerous, and certified the two questions we
have previously noted.
II.
DISCUSSION
We review questions of law answered and certified by a circuit court under a
de novo standard. Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., ___ W. Va. ___, 475 S.E.2d 172 (1996).
A.
The circuit court's first certified question to this Court is framed as follows:
Whether in a commercial transaction an independent contractor
who lacks adequate liability insurance or financial resources to
respond in damages is incompetent per se such that liability for
the contractor's negligence will be imposed upon the employer,
regardless of the independent contractor's skills?
The general rule in this State is that "where one person has contracted with a
competent person to do work, not in itself unlawful or intrinsically dangerous in character,
and who exercise[s] no supervision or control over the work contracted for, such person is
not liable for the negligence of such independent contractor or his servants in the
performance of the work." Syllabus Point 1, Chenoweth v. Settle Eng'rs, Inc., 151 W. Va.
830, 156 S.E.2d 297 (1967), overruled, in part, on other grounds by Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). See also Thomson v. McGinnis, 195
W. Va. 465, 465 S.E.2d 922 (1995).
We recently had occasion to address what appears to be for the first time the
imposition of liability upon a principal for its negligence in hiring an independent contractor
who is not careful or competent. Thomson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922
(1995). We held in Thomson that a real estate broker who volunteers to secure an inspection
of property may be held liable to the buyer for civil damages if the broker is negligent in the
selection and retention of the third party, and if such negligence proximately causes harm to
the buyer. Syllabus Point 8, Thomson, 195 W. Va. 465, 465 S.E.2d 922.
In Thomson, we also noted that section 411 of the Second Restatement of Torts
provides useful guidance as to what constitutes a cause of action for negligent hiring.
Thomson, 195 W. Va. at 471 n.6, 465 S.E.2d at 928 n.6. Section 411 provides:
An employer is subject to liability for physical harm to third
persons caused by his failure to exercise reasonable care to
employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm
unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third
persons.
Restatement (Second) of Torts § 411 (1965).
The plaintiffs invite us to hold that a principal should be subject to liability for
physical harm caused by his failure to exercise reasonable care to employ a competent and
careful contractor, and that a contractor is incompetent when he lacks adequate liability
insurance or financial resources. In support of their argument, the plaintiffs rely primarily on Becker v. Interstate Properties, 569 F.2d 1203 (3d Cir. 1977) cert. denied 436 U.S. 906
(1978), in which the Third Circuit, sitting in a diversity jurisdiction case and attempting to
predict what the New Jersey Supreme Court would do in a similar case, found that the failure
to engage a properly solvent or adequately insured subcontractor is a violation of the duty
to obtain a competent independent contractor.
Our research reveals that the Becker opinion is rather lonely, and that the great
majority of cases on this issue is indicative that Becker singularly represents the proposition
that the hiring of an underinsured or insured independent contractor is tantamount to the
negligent hiring of an incompetent independent contractor. See, e.g., Robinson v. Jiffy
Executive Limousine Co., 4 F.3d 237 (3d Cir. 1993) (a more recent opinion from the Third
Circuit which appears to impliedly reject Becker). We believe a sounder general rule is that
the independent contractor's lack of sufficient liability insurance or financial responsibility
has no causal connection to the injuries suffered by the third party as a result of the
independent contractor's negligence, and should not make the principal liable for the
independent contractor's negligence. See Robinson v. Jiffy Executive Limousine Co., 4 F.3d 237 (3d Cir. 1993); Stone v. Pinkerton Farms, Inc., 741 F.2d 941 (7th Cir. 1984); Cassano
v. Aschoff, 543 A.2d 973 (N.J. Super.), cert denied, 550 A.2d 476 (N.J. 1988). See also
Matanuska Elec. Ass'n, v. Johnson, 386 P.2d 698, 702-03 (Alaska 1963).
Additionally, in reading section 411 of the Second Restatement of Torts, we
do not find that the scope of the definition of a "competent and careful contractor" was
intended to extend beyond the "knowledge, skill, experience, and available equipment" of a reasonable person. Restatement (Second) of Torts § 411 cmt. a (1965). Further, we note
that the commentary to section 411 declines to include financial responsibility as an indicia
of an independent contractor's competence:
g. Financial responsibility. The rule stated in this Section
makes the employer responsible only for his failure to exercise
reasonable care to employ a contractor who is competent and
careful. It has no application where the contractor, although
competent and careful, is financially irresponsible.
Restatement (Second) of Torts § 411 cmt. g (1965) (emphasis added to last sentence). For
these reasons, we decline to consider as a criterion of competence the financial responsibility
of the independent contractor as an element of a negligent hiring theory of recovery. We
therefore answer the first certified question in the negative.
B.
We next address the second certified question of whether the operation of an
empty commercial logging truck on the highways of our state is so inherently dangerous that
liability will be imposed upon a principal who retains an independent contractor who is
negligent in the operation of that truck.
As set forth above, the question certified by the circuit court was articulated
as follows:
Whether the operation of an empty commercial log truck upon
the highways of our state is an inherently dangerous activity
such that [it] will impose the negligence of the truck driver to
his employer, regardless of the nature of the employment
relationship?
This certified question is premised upon the exception to the general rule that
a principal will be held liable for the negligence of an independent contractor if the activity,
for which the independent contractor was retained, is inherently or intrinsically dangerous.See footnote 7,See footnote 8
Syllabus Point 1, Chenoweth v. Settle Eng'rs, Inc., 151 W. Va. 830, 156 S.E.2d 297 (1967),
overruled, in part, on other grounds by Sanders v. Georgia-Pacific Corp., 159 W. Va. 621,
225 S.E.2d 218 (1976). This exception to nonliability emerges from the principal's non-
delegable duty to exercise reasonable care when performing the inherently dangerous
activity; a duty that the principal cannot discharge by hiring an independent contractor to
undertake the activity.See footnote 9 See Majestic Realty Assoc. v. Toti Contracting Co., 153 A.2d 321
(N.J. 1959).
Is the operation of an empty logging truck an inherently dangerous activity?
We have not had the opportunity to address what constitutes an inherently dangerous activity as part of our negligence jurisprudence. However, in Arthur v. Holy Rosary Credit Union,
the Supreme Court of New Hampshire provides a useful definition of what constitutes
inherently dangerous activity:
[T]o be an inherently dangerous activity, construction, or any
other work, [it] must be dangerous in and of itself and not
dangerous simply because of the negligent performance of the
work, and that the danger must be naturally apprehended by the
parties when they contract. Only then will the work constitute
an inherent danger that places a non-delegable duty upon the
one ordering it to protect third parties against resulting injury.
Arthur v. Holy Rosary Credit Union, 656 A.2d 830, 833 (N.H. 1995) (citation omitted).See footnote 10
Adopting this definition into our own jurisprudence, we find that the operation
of an empty logging truck is not in and of itself dangerous so that harm will likely result if
special precautions are not taken; but only dangerous, as was the case here, when the truck
is operated in a negligent manner. The mere negligent operation of an empty logging truck
does not create the type of danger constituting inherently dangerous activity for which the
principal cannot delegate its duty. We find more specific support in the case law from other
jurisdictions, which hold that the mere operation of an empty tractor trailer truck is not so
inherently dangerous as to make an principal liable for the injuries caused by the negligence
of an independent contractor. Eastern Airlines v. Joseph Guida & Sons Trucking Co., 675 F. Supp. 1391 (E.D.N.Y. 1987); Eckard v. Johnson, 70 S.E.2d 488 (N.C. 1952).
The plaintiffs rely on Griffith v. George Transfer & Rigging, Inc., 157 W. Va.
316, 201 S.E.2d 281 (1973) in support of their argument that tractor trailers create an
unreasonable risk of harm to others. Griffith, though, is not entirely apposite to the certified
question before us. In Griffith, the Court stated that the operation of tractor-trailers on our
public highways creates an "unreasonable risk of harm to others." Griffith, 157 W. Va. at
323, 201 S.E.2d at 286. However, we held that "[o]ne who carries on an activity which
requires a franchise from a public authority and involves an unreasonable risk of harm to
others[] is subject to liability for physical harm caused to others by the negligence of a
contractor employed to perform the franchise activity." Syllabus Point 2, Griffith, 157 W.
Va. 316, 210 S.E.2d 281. The certified question as presented to us does not address the issue
of the ownership of a franchise by Lens Creek, and the performance of that franchise activity by an independent contractor. We decline to expand the certified question to facts that are
not before us and answer this certified question in the negative.
III.
CONCLUSION
For the foregoing reasons, we find that the financial resources and liability
insurance of an independent contractor are of no significance in the determination of whether
an independent contractor is competent and careful for purposes of a negligent hiring theory
of recovery. We agree with the circuit court that the operation of an empty logging truck on
the public highways of this state is not so inherently dangerous so that liability will be
imposed upon the principal who retains the independent contractor. The certified questions
having been answered, this case is dismissed from the docket.
Certified questions answered.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme
Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor
of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same
date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge
Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals
commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
W. Va. Code 58-5-2 (1967) provides, in pertinent part:
Any question arising upon the sufficiency of a summons or
return of service, upon a challenge of the sufficiency of a
pleading or the venue of the circuit court, upon the sufficiency
of a motion for summary judgment where such motion is denied,
or a motion for judgment on the pleadings, upon the jurisdiction
of the circuit court of a person or subject matter, or upon failure
to join an indispensable party, in any case within the appellate
jurisdiction of the supreme court of appeals, may, in the
discretion of the circuit court in which it arises, and shall, on the
joint application of the parties to the suit, in beneficial interest,
be certified by it to the supreme court of appeals for its decision,
and further proceedings in the case stayed until such question
shall have been decided and the decision thereof certified back.Footnote: 3
The defendant Long Management Company is the general partner in the Lens Creek
Limited Partnership. We will refer to both of these defendants hereinafter as simply "Lens
Creek."Footnote: 4
Dallas Holstein entered a plea of guilty to the charge of failing to yield the right of
way in the Magistrate Court of Boone County.Footnote: 5
The Kings' civil action was instituted against a number of defendants, including
Toyota Motor Sales, USA, Inc., Mid-Atlantic Toyota Distributors, Inc., and Bud Young
Toyota, Inc., none of whom participated in these proceedings. The Kings agreed to
settlements with Dallas Holstein in the amount of $200,000 (the total amount of his
insurance policy) and Clayton Holstein in the amount of $35,000, both of which were
approved by the circuit court in its orders entered August 1, 1994 and December 29, 1994.Footnote: 6
In their memorandum of law in support of their motion, the Kings rely on Griffith v.
George Transfer & Rigging, Inc., 157 W. Va. 316 , 201 S.E.2d 281 (1973) in support of their
argument that the operation of an empty logging truck is an inherently dangerous activity.
As we will discuss, infra, Griffith is inapposite to the resolution of the certified questions
presented to us.Footnote: 7
The terms inherently dangerous and intrinsically dangerous are synonymous. See
Restatement (Second) of Torts § 427 cmt. b (1965).Footnote: 8
In their papers, the parties appear to be using the terms inherently dangerous activity
and abnormally dangerous activity as interchangeable concepts. This is not correct.
Inherently dangerous activity and abnormally dangerous activity are not synonymous terms:
a person engaged in inherently dangerous activity can take precautionary steps to minimize
the risk of injury; whereas a person engaged in abnormally dangerous activities is subject to
strict liability, i.e., liability no matter how carefully the activity is undertaken. Wagner v.
Continental Casualty Co., 421 N.W.2d 835, 840 (Wis. 1988).Footnote: 9
An inherently dangerous function cannot be delegated because the responsibility to
ensure that all reasonable precautions are taken before engaging in a dangerous activity is
of such importance to the community that the principal should not be permitted to transfer
its duty to another. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at
511-12 (5th ed. 1984).Footnote: 10
We also find guidance from one of the scholarly treatises addressing the topic of
inherently dangerous activity. See W. Page Keeton et al., Prosser and Keeton on the Law
of Torts § 71 (5th ed. 1984) (hereinafter "Prosser"). In distinguishing what does and what
does not constitute an inherently dangerous activity, Prosser sets forth a helpful hypothetical
using the operation of tractor trailers as an example. Prosser explains that while a principal
who retains an independent contractor to transport goods must realize that harm to others is
likely to occur if driven at excessive speed or with defective brakes, such foreseeable danger
is not within the scope of "inherent danger" as legally applied. In contrast, the transportation
of giant logs, which would required a special care to fasten them securely, would present a
special danger, and liability would be imputed to the employer if special care is not
employed. W. Page Keeton, et al., Id. at 514-15. In recognizing that the concept of
inherently dangerous activity may be a difficult concept to categorize, Prosser points us to
an opinion out of the Court of Appeals of North Carolina, in which the court stated:
The difficulty . . . lies in making the not altogether obvious
distinction between work done by an independent contractor
which is intrinsically dangerous in that harm will likely result if
precautions are not taken, and work which is not intrinsically
dangerous in that it is merely the sort of work which could
produce injury if carelessly performed.
Id. at 514-515 n.66 (quoting Deitz v. Jackson, 291 S.E.2d 282 (N.C. Ct. App. 1982)).
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