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Ek v. Herrington

filed: July 29, 1991.

DENNIS G. EK; CHERYL A. EK; DENNIS C. EK, PLAINTIFFS-APPELLANTS,
v.
STANLEY DEAN HERRINGTON, DEFENDANT, AND DAVID HILL; DICK WOODBURY, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the District of Idaho. D.C. No. CV-88-3074-HLR. Harold L. Ryan, District Judge, Presiding.

Charles Wiggins, Melvin Brunetti and Thomas G. Nelson, Circuit Judges. Opinion by Judge Wiggins.

Author: Wiggins

WIGGINS, Circuit Judge

The heirs of Marjorie A. Ek appeal the district court's entry of summary judgment against them in their wrongful death action against the alleged tortfeasor's employer. The alleged tortfeasor was an independent contractor. The district court had diversity jurisdiction, 28 U.S.C. § 1332, and the timely appeal is taken from a final order, 28 U.S.C. § 1291. Idaho law controls. We affirm.

BACKGROUND

Defendant David Hill, who owns a logging operation in Idaho, hired Herrington as an independent contractor to haul logs from a place of logging to two mills. While en route to one of the mills in May 1988, carrying a load that was at least 10,000 pounds overweight, Herrington's truck drifted across the centerline as it gained speed at the bottom of a hill. The logs broke loose from the truck and landed on the Ek's vehicle, resulting in Mrs. Ek's death. All of Herrington's brakes were out of adjustment at the time.

The district court granted summary judgment in favor of Hill, holding that Ek was not in the class of persons (employees) protected by the Idaho Minimum Safety Standards and Practices for Logging ("Standards") promulgated by the Idaho Industrial Commission, and that, under these circumstances, Hill could not be held vicariously liable for the injuries resulting from any negligence of his independent contractor.

Discussion

This court reviews a grant of summary judgment de novo. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir.), cert. denied, 493 U.S. 809, 110 S. Ct. 51, 107 L. Ed. 2d 20 (1989). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

All parties in this case agree that Herrington was an independent contractor. Under the common law, as a general rule, an employer cannot be held liable for injuries caused by the negligence of an independent contractor. Gates v. Pickett & Nelson Constr. Co., 91 Idaho 836, 432 P.2d 780, 786 (1967), overruled on other grounds, Smith v. State, 93 Idaho 795, 473 P.2d 937, 942 (1970); Restatement (Second) of Torts § 409 (1965). However, an employer may be held liable for the tort of an independent contractor if a regulation imposed a nondelegable duty on the employer to ensure that the standards of the regulation are met. Id. at § 424. Also, if the work involves "inherent dangers" or "peculiar risks," the employer may be liable for the failure of his independent contractor to take adequate precautions. Id. at §§ 413, 416, 427. The first question for the court is whether the Idaho Standards or federal regulations impose a duty on Hill, for the benefit of members of the general public, to inspect Herrington's brakes, and to prevent the overloading of Herrington's truck. If not, we must also decide whether, under Idaho tort law, Hill is liable for any failure of Herrington to take adequate safety precautions that may have led to the injury in this case.

I. IDAHO SAFETY STANDARDS

The appellants argue first that the Idaho Standards abrogate the common law rule shielding employers from liability for the torts of their independent contractors. If a statute or regulation imposes a duty on an employer to provide "specified safeguards or precautions for the safety of others," a court may hold that the employer "is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions." Id. at § 424. This duty can create liability for an employer in favor of only those persons whom the regulation is designed to protect. Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234, 1242 (1986).*fn1 Therefore, we must decide if Ek was in the class of persons the Idaho Safety Standards are intended to protect.

By their own terms, the Standards abolish the distinction between employers and independent contractors with respect to independent contractors' employees. An employer is defined as including

the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is ...


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