Preview:

Sipple v. Starr, et al.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1999 Term _____________ No. 25798 _____________ DEBBIE SIPPLE, AS ADMINISTRATRIX OF THE ESTATE OF SIDNEY WARD SIPPLE, DECEASED, AND DEBBIE SIPPLE, INDIVIDUALLY, Plaintiff Below, Appellant v. DAVID STARR, INDIVIDUALLY, AND DBA ROCKET MART, INC., A WEST VIRGINIA CORPORATION, AND PETROLEUM PRODUCTS, INC., A CORPORATION, Defendants Below, Appellees ________________________________________________________________ Appeal from the Circuit Court of Mingo County Honorable Elliott E. Maynard, Judge Case No. 93-C-469 REVERSED AND REMANDED ________________________________________________________________ Submitted: May 4, 1999 Filed: July 15, 1999 Stephen B. Farmer, Esquire Philip J. Combs, Esquire Farmer, Cline & Arnold Charleston, West Virginia and W. Thomas Ward, Esquire Ward & Associates Williamson, West Virginia Attorneys for Appellant Ancil G. Ramey, Esquire Steptoe & Johnson Charleston, West Virginia Attorney for Appellees David Starr and Rocket Mart, Inc. Charles M. Love, Esquire Stuart A. McMillan, Esquire Bowles Rice McDavid Graff & Love Charleston, West Virginia Attorneys for Appellee Petroleum Products, Inc.

JUSTICE McGRAW delivered the Opinion of the Court. JUSTICE MAYNARD, deeming himself disqualified, did not participate in the decision of this case. JUDGE KAUFMAN, sitting by special assignment. JUSTICE DAVIS and JUDGE KAUFMAN dissent and reserve the right to file dissenting opinions.

file:///C|/Users/Peter/Desktop/Opinions/25798.html[7/1/2013 8:34:08 PM]

SYLLABUS BY THE COURT 1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). 2. "One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination." Syl. pt. 1, Sanders v. GeorgiaPacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). 3. "An employer is subject to liability for physical harm to third persons caused by his [or her] 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

Download 25798.pdf

West Virginia Law