Opinion
No. 00-1072-WEB
April 26, 2002
Memorandum and Order
This matter is before the court on plaintiff's motion for a new trial. (Doc. 109). Oral argument would not assist in deciding the issues presented. For the reasons set forth herein, the court finds that the motion must be denied.
I. Motions for New Trial — Rule 59.
Motions for new trial are committed to the sound discretion of the trial court. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). They are "not regarded with favor and should only be granted with great caution." United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991). In considering such a motion, the court must view the evidence in the light most favorable to the prevailing party. Griffin v. Strong, 983 F.2d 1544, 1546 (10th Cir. 1993). A new trial based upon an error of law may not be granted unless that error affected the substantial rights of the parties. See Fed.R.Civ.P. 61. "The party seeking to set aside a jury verdict must demonstrate . . . prejudicial error or that the verdict is not based on substantial evidence." White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983).
II. Discussion.
Several of plaintiff's arguments for new trial relate to the court's instructions on independent contractor status and the effect of such status on the defendant's duty of care to the plaintiff. In arguing that the court erred by permitting the jury to find that plaintiff was an independent contractor, plaintiff argues, among other things, that this very issue had been raised in defendant's motion for summary judgment and was rejected by the court in its summary judgment ruling, and the court's decision to instruct the jury as it did was thus "a chilling and unexpected development." Doc. 110 at 13. In fact, although defendant listed plaintiff's independent contractor status as a defense in the Pretrial Order (Doc. 31, p. 5 at ¶ 8), the defendant's motion for summary judgment did not raise that issue and defendant did not seek summary judgment on that basis. See Doc. 32. Accordingly, the court did not address it in denying summary judgment. At trial, however, defendant produced evidence that could support a finding of independent contractor status and requested that the jury be instructed on that issue. Accordingly, the court instructed the jury on the applicable law.
The independent contractor issue was also raised in defendant's proposed jury instructions, which were served upon the plaintiff well in advance of trial. Doc. 61.
Plaintiff argues he could not have been an independent contractor because his services to the defendant were provided "as a favor, without any contractual intent;" because he did not have full control over the work performed; and because the parties had no specific agreement regarding compensation for the work. The court is not persuaded that the evidence in the case necessarily precluded plaintiff from being considered an independent contractor. "[A]n independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of his or her work." Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Res., 32 P.2d 1146, 1151 (Kan. 2001). There is no question but that plaintiff agreed to perform the repair service for the defendant in this case, and a reasonable jury could find that the parties' agreement called for plaintiff to do the work according to his own methods, with his own tools, and not subject to the control of the defendant. As for compensation, it is true there was no express agreement that plaintiff would be compensated for his work. (By the same token, there was no agreement that plaintiff would not be compensated.). Regardless of the lack of an express agreement on compensation, however, the court concluded that under all the circumstances, including plaintiff's apparent right to control the manner of doing the work, plaintiff could be found to be an independent contractor, and the legal duty owed to the plaintiff under such circumstances would be the duty owed by one engaging an independent contractor. In this regard, the court instructed the jury in conformity with the view of the Restatement of Torts, which states in its outline of principles of liability for employers of independent contractors that an "independent contractor" includes "any person who does work for another under conditions which are not sufficient to make him a servant of the other. It is immaterial whether the work is done gratuitously or is done for pay. . . ." Restatement (Second) of Torts, § 409, comment a (1965).
Although the parties had no express agreement concerning compensation, that fact would not necessarily preclude a finding that the parties had a contract. A reasonable jury could find from the evidence that the parties had a mutual understanding or expectation that plaintiff would receive some compensation for his efforts. Harry Cunningham testified that he assumed the store would pay plaintiff for his work. Although plaintiff testified he did not intend to bill the store for his work, there was evidence that Cunningham told plaintiff how much a rigging company was going to charge for the repair and on cross-examination plaintiff conceded he felt he could do the job cheaper than the quoted price.
Cf. Restatement (Second), Agency § 1, comment b (noting that agency status and its corresponding legal obligations do not depend upon the parties' intent and may arise where one person agrees to do a service as a favor for another). Also cf. Restatement (Second), Agency § 225 (one who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services).
Admittedly, the court found no controlling authority on the duty of care owed to someone who agrees to perform repair services in the absence of an agreement on compensation. Although plaintiff argues the owner or employer in such circumstances is bound by the same duty of care owed to other business visitors (which would include a duty to exercise reasonable care to ensure the safety of the visitor), plaintiff presented no authority for that proposition. He cites St. Aubyn v. Thogmartin, 476 P.2d 248 (Kan. 1970) and Bean v. Gibbens, 265 Kan. 1023 (Kan. 1954), but those cases dealt with the interpretation of liability insurance policies that excluded an insured's "employees" from coverage, not with circumstances like the present case.
Plaintiff argues the court's Instruction No. 21 defining "independent contractor" was erroneous for several reasons. The instruction obviously reflects the court's determination that the nature of defendant's duty to plaintiff was not dependent upon the parties having reached an agreement on compensation. Plaintiff cites nothing to show that such a determination was erroneous. As for plaintiff's allegation that Instruction 21's discussion of the factors relating to independent contractor status was inadequate and one-sided, the court notes that plaintiff did not submit any proposed instructions containing an alternative or a more complete statement of the factors.
Plaintiff also contends Instruction No. 21 incorrectly stated the law on assumption of risk because according to plaintiff that doctrine is restricted to employer/employee relationships. (Citing Tuley v. Kansas City Power Light Co., 843 P.2d 248 (Kan. 1992). In so arguing, plaintiff fails to address the principle of Aspelin v. Mounkes, 476 P.2d 620 (Kan. 1970) and Guignet v. Lawrence Paper Co., 859 F. Supp. 515 (D.Kan. 1994) that "as an exception to [the general rule requiring an owner to protect the safety of a business invitee] . . . an owner is under `no duty to protect an independent contractor from risks arising from or intimately connected with defects in the premises,' or machinery located on the premises, which the contractor has undertaken to repair." Guignet, 859 F. Supp. at 519. The court concluded that assumption of risk was applicable under the circumstances of this case given the evidence showing that plaintiff voluntarily undertook the repair of the lift and determined how the work was to be performed, together with the evidence showing that the collapse of the lift resulted from open and obvious risks that were inherent in the repair undertaken by plaintiff.
Plaintiff next objects to the court's failure to give plaintiff's proffered instructions derived from Restatement (Second) of Torts, §§ 343 and 343A. The court is not persuaded that the refusal to give these requested instructions was error. The court's instruction on the duty of care owed to a business visitor (Instruction No. 17) was derived from PIK3d 126.02, which is based the Kansas Supreme Court's explanation of the duty of care in Jones v. Hanson, 867 P.2d 303 (Kan. 1994). Plaintiff has not shown that the court's instruction misstated the Kansas law of premises liability.
Plaintiff next objects to Instruction No. 22, which dealt with plaintiff's allegation that the defendant was negligent in asking him to repair the lift and was responsible for his injuries because it should have known he was not qualified to do perform the repair. The court deemed Instruction 22 necessary after hearing the circumstances under which plaintiff agreed to repair the lift. After hearing the evidence, the court concluded that plaintiff's theory of negligent solicitation was not sustainable either in law or in fact. Plaintiff failed to establish how or why the defendant should have known plaintiff was not qualified to repair the lift. There was an open and obvious element of risk in performing the repair, but there is no question that plaintiff believed he was capable of performing the work, and his conduct at the time undoubtedly constituted an implied representation to that effect. At the same time, the evidence showed the defendant was aware of plaintiff's reputation for being handy at repairs, was aware that plaintiff had experience welding and repairing heavy farm equipment (including some hydraulic devices), and was aware plaintiff had his own equipment for performing repairs. As between the plaintiff and the defendant, plaintiff was clearly better informed about his own experience, knowledge and limitations as well as how his experience applied to this particular repair job. There was no evidence that the defendant had superior knowledge of the repair such that defendant should have disregarded plaintiff's implied representation that he could perform the repair. Given the evidence presented, the court concluded that the defendant owed no duty to the plaintiff to further investigate his qualifications to perform the repair.
Plaintiff argues that an owner can be liable for the negligent hiring of an independent contractor. The cases he cites, however, deal with injuries to third persons, not with an independent contractor who claims an owner should have known the contractor would injure himself in performing the work. See McCubbin By and Through McCubbin v. Walker, 886 P.2d 790, 805 (Kan. 1994).
Plaintiff's next objection concerns the court's failure to give plaintiff's proposed Instruction No. 8. That instruction was a modified version of PIK 3d 107.08, which deals with respondeat superior liability for acts of agents. The court declined to give this instruction, among other reasons, because the Pretrial Order did not list imputed conduct or imputed negligence as an issue for trial, and because plaintiff failed to explain at the time of trial how the knowledge or conduct of Jonathan Hooper related to plaintiff's claim of negligence on the part of G W Foods.
Finally, plaintiff argues that the court erred by failing to give his proposed Instruction No. 4 dealing with exceptionally dangerous instrumentalities. The court declined to give that instruction after determining that the lift did not constitute an exceptionally dangerous instrument under Kansas law, and because plaintiff's proposed instruction did not address the issue of assumption of risk as it pertained to plaintiff's voluntary decision to attempt the repair. Cf. Balagna v. Shawnee County, 233 Kan. 1068, 1082, 668 P.2d 157 (1983) (the digging of trenches associated with a sewer project is not an inherently dangerous activity).
For the foregoing reasons, the court concludes that plaintiff has not shown the presence of clear error requiring a new trial. Additionally, even assuming the court's instructions in some way misstated the parties' respective legal duties, the court concludes that no showing has been made of prejudicial error. In this regard, the court notes that the evidence showed that this accident resulted from open and obvious dangers inherent in the repair of the lift. The evidence further showed that plaintiff was aware of those dangers when he undertook the repair. Plaintiff thought he had adequately protected against the danger by making welds to hold a supporting chain and by placing blocks underneath the platform. Unfortunately, the steps taken by plaintiff turned out to be flawed and they did not prevent the collapse of the lift. Given the evidence showing that plaintiff's deficient weld and improper arrangement of the blocks led to the collapse of the platform, the court concludes that even if the jury had been instructed consistent with plaintiff's requests they could not have reasonably found that plaintiff's fault for this accident was less than fifty percent of the total fault. Accordingly, the court finds plaintiff has not demonstrated any prejudicial error arising from the instructions given to the jury.
III. Conclusion.
Plaintiff's Motion for New Trial (Docs. 109 111) is DENIED.