Opinion
NO. 2015-CA-000193-MR
03-17-2017
FRANK DAVIS APPELLANT v. QSAC GROUP, LLC D/B/A RENO'S ROADHOUSE APPELLEE
BRIEFS FOR APPELLANT: Kyle R. Salyer Paintsville, Kentucky BRIEF FOR APPELLEE: Lee A. Smith Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 11-CI-90378 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON AND J. LAMBERT, JUDGES. ACREE, JUDGE: Frank Davis appeals the Rowan Circuit Court's October 17, 2014 order granting appellee's, QSAC Group, LLC d/b/a Reno's Roadhouse (Reno's), motion for summary judgment. After review, we affirm.
Davis's notice of appeal erroneously designates the January 16, 2015 order denying CR 59.05 relief as the order from which his appeal is taken. Orders granting or denying motions brought pursuant to CR 59.05 are non-final and non-appealable. Mingey v. Cline Leasing Service, Inc., 707 S.W.2d 794, 796 (Ky. App. 1986). However, this Court follows the rules of substantial compliance, and under circumstances void of prejudice, considers the appeal properly taken from the final judgment that was the subject of the CR 59.05 motion. See Lassiter v. American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714, 718 (Ky. 2010); Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103 (Ky. App. 2011).
I. Factual and Procedural Background
Frank Davis owns an HVAC business, operating as Rite-Temp Refrigeration, Inc. Davis and Terry Fitzer, owner of Reno's Roadhouse, came to an unwritten agreement in February 2011 that Reno's would use Davis's business to perform heating, refrigeration, and air conditioning maintenance and repairs at the restaurant.
Davis was first called to Reno's in March 2011. During this call, Davis used a ladder to go on the roof of the restaurant to work on the cooling system. He was accompanied by an employee. Davis determined the best place to access the roof was at the rear of the restaurant, and he placed his ladder over the back stoop just outside the back door. The back door was frequently used by restaurant employees to take breaks. Davis secured the ladder by pulling his service truck over the stoop so the bottom of the ladder went underneath the truck bumper. Davis performed the work on the cooling system without incident on this occasion, but he did comment to Fitzer in passing that someone was going to get killed trying to get on the roof.
Davis was called again to Reno's on April 9, 2011, for air conditioning and exhaust repair work. Davis arrived at the restaurant between noon and 12:45 P.M., accompanied by one of his employees. Davis parked at the back of the restaurant and went inside to tell Fitzer he was there. They briefly discussed the work that was to be performed. Davis informed Fitzer that he would need to get on the roof for the work. Fitzer informed his employees to refrain from using the back door while Davis was working.
Davis proceeded to the roof. He placed the ladder on the back stoop outside of the back door. Davis had his employee hold the ladder while he performed the repairs. He was on the roof for approximately 45 minutes. Davis determined that a replacement belt was needed, but he did not have that replacement part with him. He and his employee went inside the restaurant to tell Fitzer they would have to come back with a replacement part. Davis and his employee then had lunch at Reno's.
During lunch, Davis realized he was missing a paper that had the replacement part number written on it, and concluded it must have gotten left on the roof. After their meal, Davis decided to go back on the roof to retrieve the part number and the broken belt itself. His employee placed the ladder in the same vicinity where it had been placed earlier. Davis then told his employee to have a cigarette and wait in the truck. Davis retrieved the belt. As he descended the ladder, Davis noticed the back door opening. He lost his balance and fell resulting in very serious injuries to his hands, hip, and legs.
Davis filed suit in Rowan Circuit Court on October 31, 2011, asserting a negligence claim against Reno's through the acts of its employees in opening the door which caused him to fall. Each of the parties obtained experts to testify on his behalf. Davis later amended his complaint to allege that the back door may have been blown open by a gust of wind.
Eventually, Reno's filed a motion for summary judgment on January 10, 2014. In its motion, Reno's argued first that Davis's lawsuit is based upon speculation and intuition, and secondly, he was operating as an independent contractor to which the owner of the premises did not owe a duty under these circumstances. Davis responded, asserting he is entitled to recover damages for the injuries he suffered because he is within the class of persons protected by the Kentucky Occupational Safety and Health Act (KOSHA), even as an independent contractor.
Reno's motion for summary judgment was initially denied, but that order was later set aside by the court and Reno's was permitted to reply to Davis's response. Reno's reply pointed out that Davis does not dispute his status as an independent contractor in his response and that he never pleaded negligence per se based upon violations of KOSHA in either of his two complaints. Reno's again argued that it did not owe Davis a duty based on their relationship under these circumstances.
The circuit court subsequently granted Reno's motion for summary judgment stating that Davis was clearly operating as an independent contractor and there was no duty owed to him by Reno's under these circumstances. Davis filed a motion to alter, amend, or vacate the summary judgment order, which was denied. This appeal followed.
II. Standard of Review
"The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Accordingly, our review is de novo. Mitchell v. University of Kentucky, 366 S.W.3d 895, 898 (Ky. 2012).
Before the trial court, "[t]he moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present" evidence establishing a triable issue of material fact. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). That is, "[t]he party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001).
III. Analysis
Davis makes the same argument to this Court he made to the circuit court: he is entitled to the protections set forth in KOSHA as an employee. Davis asserts that, notwithstanding his status as an independent contractor for other purposes, he is an employee for purposes of KOSHA because he was doing work that would have otherwise been performed by an employee of Reno's Roadhouse. We disagree.
Davis relies considerably on Hargis v. Baize, 168 S.W.3d 36, 43 (Ky. 2005). Hargis adopted the analysis of "Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir. 1984), which extended OSHA's coverage to employees of independent contractors who work at another employer's workplace[.]" Hargis, 168 S.W.3d at 42. For the following reasons, Davis's reliance on Hargis is misplaced, and there is no justification for reversing the summary judgment in favor of Reno's.
In Hargis, Baize owned a lumber yard and saw mill. He engaged Hargis as an independent contractor to haul logs to his saw mill to be processed into lumber for storage in the lumber yard. That is, Baize engaged Hargis to perform the same kind of work Baize's actual employees would perform in pursuit of Baize's business - the lumber business. Baize was required to comply with OSHA and KOSHA regarding the operation of a lumber yard and saw mill. Because Baize failed to comply with those specific laws - i.e., laws designed to protect persons engaged by Baize in the lumber business - the distinction between employee and independent contractor was irrelevant. Id. at 39-40, 44-45.
Reno's is engaged in the food service industry. There are numerous KOSHA and OSHA laws applicable to the food service industry; they are designed to protect a food service business's employees from occupational hazards. However, climbing on the restaurant's roof to repair HVAC is not an occupational hazard of the food service industry. The Supreme Court in Hargis recognized this disqualifying distinction when it distinguished a case Baize cited as a reason to affirm the summary judgment in his favor, Ellis v. Chase Communications, Inc., 63 F.3d 473 (6th Cir. 1995).
In Ellis, an employee of an independent painting contractor fell to his death from a communications tower owned by Chase Communications after he unbuckled his safety harness in order to change positions. The Court explained that "Teal . . . merely extends to employees of an independent contractor the same duty owed to one's own employees." Ellis, 63 F.3d at 477-78. . . . In Ellis, however, the tower was not "a regular job site on which Chase had a duty to protect its own employees." Ellis, 63 F.3d at 478.Hargis, 168 S.W.3d at 45.
This Court clarified the principle of law even further in Pennington v. MeadWestvaco Corp., 238 S.W.3d 667 (Ky. App. 2007). There, discussing Ellis, we said:
Chase Communications['] television tower was not a "regular job site on which Chase had a duty to protect its own employees." Ellis, 63 F.3d at 478. Consequently, Chase Communications was not considered an "employer" with respect to the tower site so as to render it subject to OSHA requirements. The particular safety violation at issue was not one for which Chase Communications would normally be responsible in the usual course of its operations. "Chase's status as an employer in other contexts does not change the fact that, in regard to the tower, Chase was no different than a property owner hiring a contractor to perform work on its
property." Id. In essence, Ellis holds that an employer is liable to all employees—either its own or those of an independent contractor—only for violations of those standards that it is required to obey and maintain in the regular course of its own business operations. If an independent contractor undertakes duties unrelated to the normal operations of an employer, the responsibility for violation of safety standards associated with those separate functions falls upon the independent contractor.Id. at 671-72.
Based on the foregoing analysis and application of Teal and its progeny, both federal and state, including Hargis and its progeny, we conclude that Davis failed to create a genuine issue of material fact that would have defeated Reno's entitlement to judgment as a matter of law on his claim against Reno's based on a violation of KOSHA.
We move on to consider Davis's argument based on a premises liability theory. We conclude Reno's owed no duty to Davis.
"[P]remises liability law supplies the nature and scope of that duty when dealing with tort injuries on realty." Id. at 437-38. Generally, the existence of a duty is a legal question. Id. at 438. The longstanding precedent of a premises owner's duty to independent contractors articulated in Owens v. Clary, 256 Ky. 44, 75 S.W.2d 536 (1934) was recently reaffirmed by the Kentucky Supreme Court in Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142, 143 n.1, 144 (Ky. 2009) ("We now reaffirm the applicability of our longstanding precedent of Owens v. Clary"). The duty as provided in Owens is as follows:
The owner of the premises is not responsible to an independent contractor for an injury from defects or dangers in which the contractors knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this is he liable for resultant injury.75 S.W.2d at 537.
The application of this traditional standard regarding a premises owner's duty to independent contractors is simple. Davis does not dispute that he was operating as an independent contractor at the time of his injury at Reno's on April 9, 2011. Additionally, Davis admits he knew of the danger in getting on the roof in the location he chose. Under these circumstances, Reno's did not owe Davis a duty to warn him of the danger of getting on and off the roof, a danger of which Davis was already aware. Accordingly, we conclude no duty was owed and Reno's was entitled to summary judgment.
Finally, Davis cites Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), and argues that Reno's voluntarily assumed a duty to protect Davis from people going in or out the back door. We will not entertain this argument. First, Davis does not allege as much in his complaint. Ky. Laborers Dist. Council Health and Welfare Trust Fund v. Hill & Knowlton, Inc., 24 F.Supp.2d 755, 774 (W.D. Ky. 1998) ("the complaint fails to allege that the[ defendant] assumed a duty to [plaintiff]"). Second, according to a copy of his summary judgment motion response attached to his brief, Davis did not present this argument to the circuit court, and so it has not been preserved for appellate review. "[A]n appellant preserves for appellate review only those issues fairly brought to the attention of the trial court." Id. Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citing Kennedy, 544 S.W.2d at 222).
In fact, Davis preserved none of his other arguments in the record either. While we can glean that he prepared and served a response to Reno's summary judgment motion, we have searched the record thoroughly and conclude that his response was never made a part of that record. His brief, in effect, confirms our conclusion because he includes a copy of the response (which contains no voluntarily assumed duty argument) in the appendix to his brief, but with no reference to the record page number. In itself, this is a violation of Kentucky Rules of Civil Procedure (CR). "[M]aterials and documents not included in the record shall not be introduced or used as exhibits in support of briefs." CR 76.12(4)(c)(vii). We would have been justified in holding that none of Davis's arguments were preserved and proceeded to review the case only for manifest injustice. Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). Our decision to consider Davis's unpreserved arguments in this case should not be understood as having any precedential value whatsoever. --------
IV. Conclusion
For the foregoing reasons, the Rowan Circuit Court's October 17, 2014 summary judgment order is affirmed.
ALL CONCUR BRIEFS FOR APPELLANT: Kyle R. Salyer
Paintsville, Kentucky BRIEF FOR APPELLEE: Lee A. Smith
Prestonsburg, Kentucky