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Hargis v. Baize5/19/2005
TO BE PUBLISHED
REVERSING AND REMANDING
Appellee, Allen R. Baize, owned a lumber yard and sawmill in Muhlenberg County, Kentucky, a sole proprietorship known as Greenville Log and Lumber Co. ("Greenville"). Baize hired Darrell Ruben Hargis on an independent contractor basis to haul logs to and from Greenville and various other locations for which services Baize paid Hargis by the board-feet hauled. Hargis owned his own tractor (truck) but hauled the logs on a semi-trailer owned by Baize. Baize claims he rented the trailer to Hargis and deducted the rentals from Hargis's weekly paycheck but produced no records to prove that assertion. Hargis worked exclusively for Baize during the last six months of his life.
On November 24, 1998, Baize dispatched Hargis to Campbellsville, Kentucky, to pick up a load of logs that Baize had purchased from Whitney & Whitney Lumber Co. Presumably, Whitney's employees loaded the logs. Upon returning to Greenville, Hargis began releasing the binders on the logs in preparation for unloading by one of Baize's forklift drivers. Baize required all truck drivers, even his own employees, to release the binders on their loads, and then to move to a position at least two truck lengths in front of the truck so as to be in full view of the forklift operator while the logs were being unloaded. Baize owned eight forklifts, and three or four of them were in the vicinity of the unloading area when Hargis parked his truck. Steven Staples, a Baize employee, was standing by in his forklift waiting for Hargis to release the binders so that he could unload the logs. Unfortunately, when Hargis released the binders, a large log rolled off the trailer and struck and killed him.
Hargis's widow, individually, as administratrix of his estate, and as next friend of their two minor children, brought this action against Baize in the Muhlenberg Circuit Court alleging that the fatal accident was caused by Baize's failure to comply with Kentucky Administrative Regulation 803 KAR 2:317 § 2 (now § 3), promulgated pursuant to the Kentucky Occupational Safety and Health Act (KOSHA), which incorporates by reference 29 CFR § 1910.265(d)(1)(i)(b) and (c), promulgated pursuant to the federal Occupational Safety and Health Act (OSHA). Those regulations provide
(d) Log handling, sorting, and storage-
(1) Log unloading methods, equipment, and facilities--
(i) Unloading methods.
...
(b) Binders on logs shall not be released prior to securing with unloading lines or other unloading device.
(c) Binders shall be released only from the side on which the unloader operates, except when released by remote control devices or except when person making release is protected by racks or stanchions or other equivalent means.
In the context of our facts, "securing" the logs with an unloading device meant using the forks of the forklift to stabilize the logs to keep them from rolling off the truck when the binders were released. Baize admits that it was not his company's policy to comply with this regulation. Baize's former safety officer, Randahl Matheny, testified in a discovery deposition that an insurance representative visited the site two weeks before Hargis was killed and recommended implementation of the securing procedures required by the KOSHA regulations. According to Matheny, Delbert Knight, Baize's sonin-law and operations manager, rejected the recommendation even though Knight, himself, had been recently injured in a similar accident. A state investigative report prepared after Hargis's death also recommended implementation of the securing procedure required by KOSHA. When con
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