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Gordon v. Garner11/18/1997
WYNN, Judge.
Under North Carolina law, vicarious and independent acts of negligence may be a basis for third party liability. In this case, the plaintiff, whose vehicle was struck by a trucker, sought recovery from the companies that hired the trucker to transport sand from the sand pits to a customer. Because we determine that the companies are not vicariously liable under either State or Federal laws that regulate the commercial dump truck industry; and further, because we find that the trucker was an independent contractor, we affirm the trial court's grant of summary judgment in favor of the companies.
This personal injury action arises out of an automobile accident which occurred when Rhonda Buchanan Gordon's vehicle was struck from the rear by a dump truck owned and operated by Danny Fred Garner. On the day of the accident, Garner was hauling sand in his dump truck from a sand pit owned and operated by G.S. Materials, Inc. in Lobelia, North Carolina. As a part of its sand pit business, G.S. Materials mines, sells and then delivers sand to customers in North Carolina and Virginia for their use in making concrete. G.S. Materials, however, does not own or operate any dump trucks capable of hauling the sand from its pits to its customers. The only equipment which G.S. Materials owns are off-road vehicles used in the mining and loading of the sand. Consequently, in order to transport its sand, G.S. Materials utilizes dump trucks owned and operated by co-defendant, Aggregate Carriers, Inc.
As a result of this arrangement, customers wanting a delivery of sand from G.S. Materials must contact and place an order with Aggregate Carriers, who in turn assigns a dump truck to pick up the sand so that it may be hauled from G.S. Materials's Lobelia sand pit to the specified destination. For the most part, Aggregate Carriers trucks are used for these hauls; however, in the event that they are not available, Aggregate Carriers maintains a pool of independent dump truck drivers to deliver the sand for its G.S. Materials contracts.
In November 1994, G.S. Materials entered into a contract to sell and deliver sand to Certified Concrete Company in Pittsboro, North Carolina. Aggregate Carriers, however, did not have enough dump trucks at that time to haul all of the sand that G.S. Materials had contracted to deliver. As a result, Aggregate Carriers hired independent drivers including Garner, to haul the sand to Certified Concrete.
As the sole proprietor of "Danny Garner Trucking," Garner had hauled sand for G.S. Materials since August 1994. He started his business in 1990 and operated his truck under a commercial license he obtained after receiving specialized training and passing a test given by the North Carolina Department of Transportation.
G.S. Materials paid Garner a set amount for each ton of sand that he hauled -- the rate paid per ton varied depending on how far he had to travel in order to deliver the sand.
When actually delivering G.S. Materials's sand, Garner had no discretion concerning what he was to do with the sand once his truck was loaded. He was required to haul the sand to the customer specified by G.S. Materials. Aggregate Carriers also retained the right to release Garner from his services if he did not perform his duties to their satisfaction. It was in Garner's discretion, however, to decide if and when he would carry a load of G.S. Materials's sand. He also decided how many loads of sand he would carry on any given day and when he would quit work.
On November 11, 1994, Garner decided to pick up his first load of sand from G.S. Materials's Lobelia pit so that he could deliver it to Certified Concrete i
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