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McCUBBIN v. WALKER12/9/1994
The opinion of the court was delivered by
Plaintiff, Paul McCubbin, by and through his guardian Sheila McCubbin, appealed a district court decision granting summary judgment in a personal injury action to the defendants, Jerald and Carol Walker. The Court of Appeals, in an unpublished opinion filed November 12, 1993, affirmed the district court decision in part, reversed it in part, and remanded the case for further proceedings. The defendants filed a petition for review, and the plaintiff filed a cross-petition for review. We
granted both petitions. We now affirm the summary judgment granted by the trial court.
The facts are outlined in the Court of Appeals opinion as follows:
"Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald Walker (hereinafter Walker) often used temporary help to perform odd jobs, such as painting, light carpentry, and other general maintenance duties, at the market and his other various rental properties. Walker viewed these individuals as `contract labor' rather than as traditional employees; Walker would decide on the job to be done and then negotiate with an individual about the cost of performance.
"Two such individuals who frequently performed odd jobs for Walker were Gene Moser and Paul McCubbin. In April of 1989, Walker contacted Moser about a job involving trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30. Moser, in turn, contacted McCubbin to help him trim the trees, and the two agreed to split the $30.
"The two men showed up to perform the job on April 15, 1989. Moser provided all of the equipment. Moser and McCubbin trimmed two branches from one tree and moved onto a second tree. One of the trimmed branches from the second tree struck McCubbin as it fell, causing McCubbin severe and permanent injuries.
"McCubbin's guardian initially filed a workers compensation claim, arguing that McCubbin was an employee of Walker. The administrative law judge (ALJ) held that the parties did not fall within the purview of the Kansas Workers Compensation Act as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. See K.S.A. 44-503; K.S.A. 44-505. The ALJ found that both Moser and McCubbin were independent contractors.
"McCubbin's guardian next filed suit in district court, alleging that McCubbin's injuries were the direct and proximate result of Walker's and Moser's negligence. Walker moved for summary judgment, arguing that no material questions of fact remained to be resolved and that tree trimming was not an inherently dangerous activity which would give Walker a nondelegable duty to warn McCubbin of the dangers involved. Walker further argued that he was under no duty to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees.
"McCubbin strenuously objected to Walker's motion for summary judgment on the grounds that many genuine issues of material fact were not yet resolved and were best left for a jury to decide. However, the trial court granted Walker's motion, finding that assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin's injuries were caused by his and Moser's actions and not by a condition of the premises. The court also found that McCubbin was an independent contractor,
although McCubbin's status as an employee or independent contractor was immaterial, based on its ruling. Finally, the court held that
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