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King v. Lens Creek Limited Partnership
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
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

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