AL BUSEY, ) Plaintiff, ) ) vs. ) Case No. 98CV 1331 ) HILL'S PET NUTRITION, INC., ) TRUCK EQUIPMENT SERVICE CO., ) STUDER TRUCK LINE, INC., ) Defendants. ) ________________________________)
Defendant Studer Truck Line, Inc. (Studer) filed a motion for summary judgment alleging that all claims against it are barred by the exclusive remedy provisions of the Kansas Workers Compensation Act and alternatively that Studer is not legally responsible for the condition that caused plaintiff's accident. Plaintiff (Busey) filed a response and Studer in return filed a reply. Neither party has requested oral argument on the motion so the court deems that the motion is ready for ruling. The court, after having reviewed the motion, response, reply, the file, etc. and being fully informed regarding the premises, denies Studer's motion for summary judgment for the reasons set forth below.
The court incorporates statements 1-16 in the court's decision on Hill's Motion for Summary Judgment. In addition, the court finds the following:
17. Busey was first employed by Studer Truck Line Inc. in 1995 as a truck driver, operating vehicles furnished by Studer. In December, 1995, he bought his own tractor, and from that time on he was an owner/operator under contract to Studer. At the time of the accident Busey was hauling loads for Studer. He was paid a percentage of the rate charged to Hill's rather than an hourly wage or a salary. It is controverted how much control and direction Studer exerted over Busey.
18. On the date of the accident after working with the frozen poultry meal for a while, Mr. Busey became cold enough that he also needed to come down for a break. As he attempted to place his feet on the ladder to start down he fell. When he fell he had been working outside in near zero weather for about an hour, and his hands and feet were cold. The trailer had ice on it, and his gloves were covered with poultry meal, which Mr. Busey admits may have caused him to lose his grip.
19. Mr. Busey does not know exactly how he fell from the trailer. He was gripping a metal crossbar as he swung his feet over the edge of the trailer. He is not sure whether his feet made contact with the rungs of the ladder or not. He may have lost his grip first, or his feet may have slipped off of the ladder first. Ice on the trailer and greasy poultry meal on his boots and gloves may have caused him to fall.
20. The claims of negligence against defendant Studer Truck Line, Inc. relate to the condition of the trailer and plaintiff's knowledge of its use. He complains that he was not given sufficient instruction or training by Studer to do his work safely, and was furnished with a defective trailer that had no grab handle adjacent to the ladder on the rear.
21. Mr. Busey has testified that he was aware that the trailer had no grab handle adjacent to the ladder before he offered to go up on top to help break the meal loose. He has also testified that there was a metal cross bar available to use as a grab handle, and that he used that cross bar as a grab handle even though it was designed to support the retractable tarp covering the top of the trailer.
22. Numerous photograph of the trailer have been taken, illustrating the arrangement of the ladder and the bar that plaintiff held onto as he tried to climb down. The absence of a special grab handle is apparent.
23. January 13, 1997, was Busey's first time on the back of the trailer.
K.S.A. 60-256(c) provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."
Exclusive Provision of the Workers Compensation Law
The first issue argued in Studer's motion for summary judgment is whether the exclusive remedy provisions of the Workers Compensation Act bars all relief against Studer. A worker may not maintain a common-law negligence claim against an employer if the worker may recover workers compensation benefits from that employer. Bright v. Cargill, 251 Kan. 387, 392-93, 837 P.2d 348 (1992). The fact that Busey is covered by his own workers compensation policy does not trigger the exclusive remedy provision of the Workers Compensation Act unless Busey is found to be an employee or statutory employee of Studer's. Bright v. Cargill, 251 Kan. at 388-93, Bryant v. All Temperature Insulation, 22 Kan. App. 2d 387, 916 P.2d 1294 (1996).
However, it is controverted as to whether Busey is an employee of Studer's or not. Although all indications from the contract between Studer and Busey point to Busey being a self-employed person, Studer argues that the control that Studer exercised over Busey makes Busey an employee in fact of Studer's. Busey, however, disputes both the control alleged by Studer and that such control would create an employer/employee relationship between Studer and Busey.
Busey also argues that K.S.A. 44-503(h) provides that an owner-operator such as Busey is excluded from being considered an employee of a licensed motor carrier. However, Studer points out that K.S.A. 44-503(h) pertains only to an individual who is an owner-operator and an exclusive driver of a motor vehicle leased or contracted to a licensed motor carrier. (Emphasis added). Studer argues that since the contract between Studer and Busey does not provide that Busey is the exclusive driver, K.S.A. 44-503(h) does not pertain to Busey. While it is true that the contract does not prohibit Busey from employing other drivers, there is no evidence before the court as to whether Busey did in fact hire other drivers or whether he was the exclusive driver of his motor vehicle.
In addition, even if Busey was not included under the provisions of K.S.A. 44-503(h) that does not end the inquiry. The issue still remains as to whether or not Busey was an employee in fact or statutory employee of Studer's, and that issue is controverted.
Therefore, there is a genuine issue as to a material fact which precludes granting of Studer's summary judgment motion based on the exclusive remedy provision of the Kansas Workers Compensation Act.
Duty Under Bailment Law
Defendant Studer argues that even if the exclusive remedy provisions of the Workers Compensation Act are not applicable in this case to bar relief against Studer, Studer owed no duties to plaintiff that could be invoked to impose liability.
Studer contends that bailment law would control the liability of the owner of allegedly dangerous personal property. A bailor has a duty to provide chattel fit for its known and intended use. However, the exception to that rule is as stated by the Kansas Supreme Court in Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838 (1967):
We agree with the principle establishing the bailor's duty but we also agree with the equally well accepted exception thereto as stated in 8 C.J.S. Bailments, § 25, p, 383. It reads: '...(T)he bailor is not responsible for damages resulting through the use of the article after the bailee had discovered its unsuitability for use,...'
The same principle is couched in somewhat different language in Prosser on Torts (3rd Ed.), Liability of Contracting Parties, § 98, p. 687, where the following appears: '...When the defect is disclosed to the one supplied, or is in fact discovered by him, the supplier usually is relieved of responsibility;...'
Shehi at 270-271.
Studer maintains that since Busey acknowledged in his deposition that he was aware there were no grab handles near the ladder, the exception applies and relieves Studer of any liability under bailment law.
However, plaintiff counters that while Busey knew that there were no grab handles near the ladder he was not aware of the unsuitability of the ladder without grab handles. Busey stated that he had never climbed in the back of the trailer before.
The present case can be distinguished from the facts in Shehi. In Shehi the plaintiff (injured party) was the owner of a Transfer and Storage Company and had over 15 years experience in the moving business. Previously he had moved printing equipment similar to the printing equipment he was moving on the day of his accident. Prior to moving the printing press, Shehi (the injured party) examined the truck and the printing press, discussed the unloading plan, and obtained the equipment necessary for the undertaking.
Shehi contended, however, that under bailment law, the owner of the moving truck (the bailor) provided a truck that was unsuitable for moving due to its covered bed and since there were no holes in the rear of the truck bed in which skids could be secured. However, the Kansas Supreme Court disagreed with Shehi and affirmed the trial court's granting of the bailor's motion for summary judgment.
In the present case Busey's unloading experience and ability to size up the alleged unsuitability of the trailer pales in comparison to the injured party in Shehi. In Shehi, the Court's holding was not merely based on the plaintiff's awareness that there were no holes in which to attach the skids.
The exception to the common law duty of a bailor to furnish chattels fit for its known and intended use is when the bailee has discovered the unsuitability of the use of the chattels. Whether Busey had discovered the alleged unsuitability of the trailer for unloading prior to his fall is a question of fact for the jury. Therefore, this court denies Studer's motion for summary judgment based on bailment law.
IT IS SO ORDERED.
Dated this 8th day of March, 2000.
______________________
Nancy Parrish
Judge, Third Judicial District
Division Fourteen
William J. Pauzauskie
216 SW 7th Street
Topeka, Kansas 66603
Ronald W. Fairchild
5851 SW 29th
Topeka, Kansas 66614
Barry E. Warren
P.O. Box 12290
10111 West 87th Street
Overland Park, Kansas 66282
Larry G. Pepperdine
3550 SW 5th Street
P.O. Box 949
Topeka, Kansas 66601
______________________________
Norma J. Dunnaway, Administrative Assistant