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Cook v. Morrison3/3/1992
moved from it. Morrison explained that the trench had not yet been prepared because he was still digging it at the time of the accident. He further explained that because his employees knew better than to enter an unprepared trench, he did not know why Cook and the other two employees were in this one. He testified that this was the first time that any of his employees had been in an unprepared trench on this job. At the time of the accident, Morrison was operating a backhoe and did not observe the collapse, and the defendant was not present at the site.
Sharon Cook (plaintiff) is the executrix of Cook's estate. On 25 July 1989, she filed this wrongful death action against the defendant and Morrison. She alleged that the defendant was liable to her for her husband's death on four theories: (1) respondeat superior, (2) breach of duty to an invitee, (3) breach of nondelegable duty, and (4) negligent hiring of an independent contractor. On 20 November 1990, the defendant filed a summary judgment motion which was granted on 12 February 1991.
The issues are (I) whether the forecast of the evidence shows that Morrison was the defendant's employee; (II) whether the forecast
of the evidence shows that the defendant knew or should have known of the circumstances creating the danger to which Cook was exposed for purposes of the plaintiff's cause of action against the defendant as a landowner; (III) whether the forecast of the evidence shows that the defendant knew or should have known of these same circumstances for purposes of the plaintiff's cause of action against the defendant for breach of a nondelegable duty; and (IV) whether the estate of an employee of an independent contractor may obtain relief from a party who negligently hires the independent contractor.
I
Independent Contractor or Employee
The plaintiff argues that summary judgment on the issue of the defendant's liability under the doctrine of respondeat superior was improper because genuine issues of material fact exist as to whether Morrison was the defendant's employee. See, Harris v. Miller, 103 N.C. App. 312, 322, 407 S.E.2d 556, 561, appeal filed and disc. rev. allowed, 329 N.C. 788, 408 S.E.2d 520 (1991) (employer-employee relationship required for liability under doctrine of respondeat superior).
An independent contractor is "one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work." Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437, reh'g denied, 322 N.C. 116, 367 S.E.2d 923 (1988). Where, however, the hiring party "retains the right to control and direct the manner in which the details of the work are to be executed," the working party is the hiring party's employee, not an independent contractor. Id. Whether the hiring party retains the right to control and direct the manner in which the working party executes the details of his task depends upon various factors which must be considered when implicated by the evidence. Id. at 384-86, 364 S.E.2d at 437-39; Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). When viewed in the light most favorable to the plaintiff, the evidence and the factors it implicates compel the Conclusion that Morrison was an independent contractor. Yelverton v. Lamm, 94 N.C. App. 536, 538-39, 380 S.E.
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