Opinion
No. 3-712 / 02-1284
Filed February 11, 2004
Appeal from the Iowa District Court for Delaware County, Alan L. Pearson, Judge.
Patrick Wernimont appeals from the district court's grant of summary judgment in favor of the defendant on both his negligence and employer liability claims. AFFIRMED.
Charles Blades, Cedar Rapids, for appellant.
Constance Alt and Theresa Davis of Shuttleworth Ingersoll, P.L.C., Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
Plaintiff, Patrick Wernimont, is the son of the defendant, William Wernimont. Patrick was injured in an accident involving a skid loader on his father's farm. He sued his father asserting claims of negligence and employer liability. William moved for summary judgment. The district court granted summary judgment and dismissed Patrick's claims. Patrick appeals claiming the court erred in concluding that (1) William was not Patrick's employer and (2) William did not owe Patrick a duty of care. We affirm.
I. Background Facts Proceedings
On December 28, 2000, William Wernimont was using a skid loader to move a large bale of hay to feed the livestock on his farm. While William was moving the hay bale, the skid loader became unbalanced and tipped forward so that the hay bale was resting on the ground and the skid loader's back wheels were elevated off the ground. William turned off the skid loader, went into the farmhouse, and asked Patrick to get a neighbor to come help him right the skid loader. Although he was sick with the flu that day, Patrick offered to assist his father.
The hay bale was attached to a spear on the front of the loader.
William returned to the farmyard and hooked a chain to the back of the skid loader. He then used a tractor to right the loader. However, the skid loader was still not balanced so William told Patrick to stand on the back of the skid loader to act as a counterweight. While Patrick was standing on the skid loader the machine's lift arms dropped from their elevated position crushing his feet. Patrick subsequently filed an action asserting claims of negligence and employer liability against his father.
Patrick also filed claims in separate counts against the manufacturers of the skid loader and an implement dealer. Those claims have been settled and dismissed.
William filed a motion for summary judgment. In his motion he argued Patrick was not his employee at the time of the incident and that in the absence of an employer-employee relationship he did not owe Patrick a duty of care. Following hearing the district court granted summary judgment and dismissed Patrick's claims against William in their entirety. Patrick has appealed.
II. Scope of Review
Our review of a summary judgment ruling is for the correction of errors of law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001). Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. In determining whether the moving party has met this burden, we view the record in the light most favorable to the party opposing the motion for summary judgment. Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 654 (Iowa 1994). The nonmoving party is entitled to every legitimate inference that can be reasonably deduced from the record. Falada v. Trinity Indus., Inc., 642 N.W.2d 247, 250 (Iowa 2002). This court's role on appeal is "to determine whether a genuine issue of material fact exists and whether the law was correctly stated." Kelly, 620 N.W.2d at 641.
III. Employer Liability Claim
We first address Patrick's claim the district court erred in concluding as a matter of law that William was not his employer on the date Patrick was injured. Our Supreme Court has set forth the following criteria to determine whether an employer-employee relationship exists:
(1) the right of selection, or to employ at will; (2) responsibility for the payment of wages by the employer; (3) the right to discharge or terminate the relationship; (4) the right to control the work; and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed.
Gabrielson v. Iowa, 342 N.W.2d 867, 870 (Iowa 1984).
We look to all the circumstances of a case to determine the nature of the relationship. Heinz v. Heinz, 653 N.W.2d 334, 343 (Iowa 2002) (holding that a brother who voluntarily helped his brother with his harvesting was not an employee as a matter of law).
In granting summary judgment on the issue of whether Patrick was William's employee at the time of the accident, the district court noted that William stopped paying Patrick for the work he did on his farm in August 2000, approximately three months before Patrick was injured. The court stated, "[T]he fact that William stopping paying Patrick a wage suggests the employment relationship had ended." The court also found that the presumption in favor of gratuitous service between family members was applicable because neither party kept track of the amount of labor they exchanged or attempted to compensate for any imbalance. The court concluded that Patrick "was doing a favor for his father, not work for his employer." Patrick claims that he provided the district court with sufficient evidence to avoid summary judgment on this issue. We disagree.
The record before the district court shows Patrick was employed as a hired hand on his father's farm until August of 2000. Until that time William paid Patrick $1000 per month for his services. In August, William decided that he wanted to retire from farming and began making arrangements for Patrick to rent or buy his farm. From that point forward, Patrick was a self-employed farmer and worked for a tree service company.
Patrick also received $250 per month from his father for the use of a building.
William sold off the dairy cows with which Patrick had been working.
The deposition testimony of both William and Patrick confirms that Patrick was not receiving wages from William at the time he was injured and had received no wages from William for at least three months prior to the date of the accident. Patrick did not receive wages for assisting his father on the date of the accident and the evidence shows he did not expect to be paid for his services.
Patrick contends that because he and his father had a custom of exchanging work, there is a triable issue as to whether he was William's employee when the accident occurred. The record confirms William and Patrick had a longstanding practice of helping each other out with farm work. However, there is no evidence in the record that either William or Patrick kept track of work exchanged or attempted compensation to rectify any imbalance in sharing. Erickson v. Erickson, 94 N.W.2d 728, 730 (Iowa 1959) (finding employer and employee relationship existed between brothers who farmed where brothers made payment to rectify any difference in work exchanged). Moreover, our case law supports the proposition that work performed between members of a family, such as a father and son, is gratuitous and does not constitute an employment situation. Youngberg v. Hostrom, 108 N.W.2d 498, 502 (Iowa 1961).
We believe the facts show William Wernimmont was not Patrick Wernimont's employer at the time of the accident. The record reveals plaintiff was doing a favor for his father, not work for his employer. Accordingly, we conclude the trial court correctly ruled that the plaintiff's employer liability claims fail as a matter of law.
IV. Other Claims
Patrick contends the district court's summary judgment ruling should be reversed even if we conclude his father did not employ him on the date he was injured. He argues William owed him a duty of care as a supplier of chattels under section 392 of the Restatement (Second) of Torts. Patrick also claims his father had a duty to warn under section 388 of the Restatement (Second) of Torts. Finally, he makes the general argument that recognition of a duty of care in this case is consistent with traditional notions of tort law. We address each of his arguments in turn.
A. Restatement (Second) of Torts Section 392
Patrick argues section 392 of the Restatement (Second) of Torts creates a duty to warn in this case. That section provides:
One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied:
(a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or
(b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.
Patrick argues that William fits the definition of a supplier as that term is defined in section 392. We disagree. Section 392 restricts the definition of a "supplier" to include only those who give a chattel to a third person to be used for the supplier's business purposes. Heinz, 653 N.W.2d at 340. William did not give the skid loader to Patrick to use. If anyone was using the skid loader at the time of the accident it was William, who was in the process of using it to haul hay to feed livestock. Patrick was merely asked to assist his father in righting the skid loader so his father could continue with the chores of feeding livestock. We reject this assignment of error.
B. Restatement (Second) of Torts Section 388
Patrick asserts that William had a duty to warn pursuant to section 388 of the Restatement (Second) of Torts because William was a supplier of chattel. Section 388 outlines the requirements for imposing liability on one who supplies a chattel which is known to be dangerous for its intended use. No duty can exist under section 388 unless William supplied the skid loader to Patrick to use. Because we conclude that William did not supply the skid loader to Patrick to use, the liability created by section 388 does not apply to this case.
C. Traditional Notions Argument
Patrick maintains the traditional notions of tort law require the recognition of a duty of care in this case. We disagree. In cases where the plaintiff claims the defendant owed a duty to protect or supervise, especially cases involving non-feasance rather than misfeasance, the plaintiff must show the existence of a special relationship to recover damages. Riesv. Steffensmeier, 570 N.W.2d 111, 114 (Iowa 1997). See also Keller v. State, 475 N.W.2d 174 (Iowa 1991) (discussing the common law distinction between misfeasance and non-feasance). Since no employment relationship, or any other special relationship, existed between the parties, William had no duty to warn Patrick. Therefore, we affirm the district court.
We have considered all of the issues presented and conclude the district court was correct in granting William's motion for summary judgment.