*1 during litigation cases, the course in other
and, lastly, clearly the order has raised an impression. of law
issue of first See Pt. 14-15, Berger, 483 S.E.2d at
14-15.
IV. Conclusion foregoing,
Based prohibition prevent
writ of the enforce- by Judge
ment of the order issued Charles
King of the Circuit Court of Kanawha Coun-
ty- granted
Writ as moulded. SIPPLE,
Debbie as Administratrix of the Sidney Sipple, Deceased,
Estate of Ward Sipple, Individually,
and Debbie Plain Below, Appellant,
tiff STARR, Individually,
David and dba Rock Mart, Inc., Virginia Corpora
et a West
tion, Products, Inc., and Petroleum
Corporation, Below, Appel Defendants
lees.
No. 25798.
Supreme Court Appeals Virginia. 4,May
Submitted July 15,
Decided
Dissenting Opinion of Justice Davis 20, 1999.
July
for distribution of its and was not engaged in a venture with the store or owner. Because we find that issues of fact regard material do exist with *3 allegations, these we reverse.
I. FACTUAL BACKGROUND of giving At time the events rise to this case, the Rocket Mart was a branded Chev- gas ron station and store convenience located Mingo County community near the of Red below, Jacket. Defendant David Mart, owned the Rocket and did business as Farmer, Esquire, Stephen Philip B. J. Mart, Rocket Incorporated, entity an he Farmer, Arnold, Combs, Esquire, & Cline entirety. in Appellee owned and defen- Charleston, Ward, Virginia, West W. Thomas (herein- Products, dant below Petroleum Inc. Williamson, Associates, Esquire, Ward & “PPI”) gasoline1 through- after sold Chevron Virginia, Attorneys Appellant. West for Virginia, through out southern West its own stores, Ramey, through stores, Esquire, Steptoe Ancil G. other such & John- as son, Charleston, Virginia, Rocket Mart. Attorney West for Appellees David Starr and Rocket Inc. PPI agreement entered into Starr Love, Esquire, Charles M. whereby gasoline Stuart A. sell Starr would PPI McMillan, Esquire, Bowles Rice McDavid Rocket Mart customers. Starr owned the Charleston, Love, Virginia, underground tanks; Graff & provided, PPI and re- Products, Attorneys of, Appellee ownership gasoline for Petroleum tained pumps and Inc. equipment associated located the Rock- property.
et Mart PPI also retained owner- McGRAW, ship gasoline of all in the until tanks a cus- Justice: purchased gasoline. paid tomer Appellant Sipple, Debbie administratrix for gallon Starr seven cents for each sold. Sidney Sipple, appeals her son summary judgment kind, appellee, for fuel distrib- Unlike most stores of its the Rocket Inc., wrong- utor Petroleum in her Products Mart was a full service in establishment action, ful sought death gasoline grocer- which she dam- addition to usual ages son, stores, for death her killed when ies available all it con- at such also visiting Mingo a convenience County store tained what be as bar could characterized area, as known the Rocket Mart. The purchase Circuit where customers could bever- (albeit Mingo County granted Court ages containing legally alcohol defined appellee nonintoxicating)2 consumption on the basis that no had as for on the operation over premises, enjoy game of the and could even negligent for pool doing liable selection of the while store so. fuel, volume, provided may percent 1. PPI also diesel have one half of one alcohol provided other percent fuels as well sale at the Rocket not more than four and two-tenths Mart. volume, by weight, percent alcohol or six greater, hereby all of are whichever is which 11-16-3(5) § 2. W. Va.Code informs us: nonintoxicating declared to the word "Nonintoxicating beer” shall mean all cereal "liquor” chapter sixty used as this code beverages products brewing malt shall not be construed to include or embrace beer, industry commonly lager referred as nonintoxicating any beverages, beer nor beer, ale prepara- and all other mixtures and products, preparations mixtures or included produced by brewing industry, tions in- within this definition. cluding containing malt coolers and at least alia, Inc., alleged, inter and PPI. Ms. Rocket Mart wore two The cashier liable for Fields’ hats, the defendants were acting both cashier and attendant as grocery operation, and bar actions under theories of vicarious gas and beverages legal respondeat superior. con- PPI moved keep for sale of premises. summary judgment, Evidence which the lower court sumed on the tap granted, for the draft suggests that did not exer- record on basis register, operation next was located control over the beer cise sufficient customers, history their credit should for the Rocket Mart to render liable use card to permit, a Chevron credit Sipple.4 could death one.” purchase a “cold found that Ms. doing, the lower court In so Fields, II, *4 at the Rocket Luther worked presented genuine issue Sipple had no gun a kept loaded Mart as cashier. Starr fact as to whether PPI exercised material register, deposition testi- the cash near Mart, Starr and the Rocket control over had, occasion, mony that Fields on indicates negligently or selected whether retained gun of the store. displayed the to customers its the Rocket Mart distribute Starr and Testimony suggests on least one also below and whether all defendants occasion, gun this himself had taken Starr engaged venture. We believe were exchanged outside the Rocket Mart fire appellant of fact on each did raise issues parties with unknown. inap- allegations to render of these sufficient propriate the court’s of sum- circuit Sidney present at Sipple3 was the Rocket Accordingly, mary judgment. we reverse. 9, 1992, July he had been on Mart on as many previous Sipple was ac- occasions. Fields, working II.
quaintance of who was qua day as the cashier bartender OF STANDARD REVIEW During his the Mart. visit to Rocket Summary granted appro is horseplay Sipple engaged in with Fields. priately “A motion clear, in limited circumstances: entirely not Fields For reasons shot granted summary judgment should Sipple with the aforementioned and killed only genuine no when it is clear that there is guilty manslaugh- gun. plead later Fields 1993, inquiry 17, of fact to be tried and concern Sipple Debbie com- issue ter. On June clarify appeal. is giving ing the facts not desirable to the action rise this menced 3, Syl. application pt. law.” Aetna Initially, only Sipple Ms. Rocket sued Casualty Ins. & Sur. Co. Federal Co. of 1994, Mart, February of filed an Inc. In she York, 770 New W.Va. separate complaint alleging a amended cause elaborated this hold We have Starr, sought pierce against of action ing by explaining: discovery corporate During veil. stated, a Sipple Roughly “genuine issue” process, learned of the relation- Ms. Starr, Virginia Rule of purposes of West Civil ship PPI and she filed between 56(c) simply half of a complaint to Procedure one a second amended June issue, trialworthy genuine and a issue does against include claims Rocket Sipple ignored court PPI’s motion Appellant when the considered Debbie mother Sid- summary judgment. ney Sipple of his and serves as the administratrix estate. granted then PPX’smotion The circuit court 25, 1996, permitted ap- but order dated March disagreement among par- again, pellant depose was much There Starr and Miller concerning testimony right appellant ties Starr. First to move for reconsid- allowed provided appellant's testimony. Appel- deposed counsel, upon the Starr later eration based new depositions with moved for December of an additional lant took the reconsideration, complete the court denied the motion. statement that not in har- sworn mony deposition. girl- issues of materi- Starr’s Because find assignments manager provided appellant's al fact exist on each of error, Robin Miller also friend and regarded we need not address nature of The court these circuit statement. statements, lower court's treat- depositions proper sworn nor the taken without statements them, opinion. parties, they in this and ruled that would be ment notice all unless there is Casey, arise sufficient Ins. Co. W.Va. curiam). non-moving (1997)(per favoring party for a rea- jury sonable to return verdict for that frequent, baseless, The and often invoca- party. opposing trialworthy The half aof independent tion of the contractor defense present non-moving par- issue is where the has eroded the confidence of courts ty disputed point can to one more “ma- applicability. Like always the child who terial” A facts. material fact is one that places sibling blame for an on accident capacity sway friend, the outcome imaginary employing defendant litigation applicable law. under contractor defense must cynicism combat the reasonable of his audi- Law, pt. Jividen v. ence: S.E.2d 451 “independent defense contractor” is one which long defendants have favored
III.
as a
denying liability
means of
for acts
which are done
whom they
those
nei-
DISCUSSION
right
ther control nor have a
to control.
However,
years,
over the
the defense has
A.
*5
proved to be a slender reed and one which
Control
the
apply.
courts have found difficult to
Sanders v. Georgia-Pacific Corp., 159 W.Va.
Starr,
argues
PPI
doing
that
busi
621, 625,
(1976) (footnote
218,
225 S.E.2d
221
ness as Rocket
“independent
was an
omitted).
It
quite
is
natural that a business
who,
dealer”
under the
their
terms of
various
entity
employ
would
what it deems to be an
agreements
charge
had “entire
and control of
“independent contractor” in an effort
limit
to
the management
[PPI’s]
of
business for the
exposure
damages
its
possible;
as much as
purposes
accomplishment
of
[the
of
sale of
entity naturally
everything
business
will do
gasoline].”
properly
PPI
identifies in its
legal
increasing
to externalize its
while
costs
importance
brief
any
of control5 in
action
profits.
society
its
But
has an
also
interest
involving
allegation
an
of respondeat superi
seeing
in
that
particular
the costs of a
activi
liability:
ty
by
are borne
profit
those who
from that
right
supervise
If the
to control or
activity.6
question
work in
person
is retained
danger
A
application
inherent
the broad
done,
being
whom the
work
independent
of the
contractor
defense is
person doing
employee
is an
work
encourages large,
companies
often
solvent
contractor,
independent
not an
and the
(which usually
superior
exper-
have
technical
determining
factor
connection with this
tise,
employees,
better trained
more reliable
right
matter
is not
use of
such
of
equipment,
compen-
greater
resources
or supervision
the existence
injured parties)
employ
sate
carry
out
person
thereof in the
whom work is
companies
their work much smaller
or indi-
being done.
(which
knowledge,
less
viduals
often have
2,
pt.
Spencer v. Travelers
experienced
Insurance
employees,
less
less reliable
111,
Company, 148
equipment
735
and little or no
re-
financial
(1963). Accord,
sources).7
Farmers &
may many
Mechanics Mut.
The
uncom-
result
be
5. For an
allocating
excellent discussion of the definition of
other methods of
losses do a better
see,
job
Phillip Blumberg,
Corporate
spreading.
yet
"control"
I.
We
loss
have not
aban-
Entity
Corporations,
an
Era
doned the basic economic
re-
Multinational
structure which
283,
(1990).
quires prices
goods
Corp.
15 Del. J.
L.
to reflect all the costs
329-45
producing
using
which
them or
them entail—
far from it.
See,
Calabresi,
generally,
Guido
Some
Id.
Thoughts on Risk Distribution and the Law of
Torts,
70 Yale L.J. 499
recognized the
7.Scholars
have
social harm
arrangement.
threatened
such an
Hence “tort”
should
borne
costs
activity
potentially
which
them
if
causes
even
other hid-
The externalization of risk
allocated,
den
judgement-proof
important
costs cannot be
and even if
contractors has an
establishing
he
neither
on
defaults
burden
injuries and enormous
pensated
right
premiums,
had the
to control
workers’
controlled nor
unemployment insurance
taxes,
work,
in the
pension obli-
if there is a conflict
premiums,
compensation
dam-
environmental
evidence
gations,
uncorrected
and there is sufficient
See,
Mining
Paybra
jury,
age.
e.g.,
finding
Connors
determi-
support a
(S.D.W.Va.1992).
Co.,
F.Supp.
an
contrac-
nation of whether
question
relationship
is a
tor
existed
that:
previously noted
We have
jury determination.
gen-
insulating
rule
“So riddled
independent con-
contractor from
eral
1,
Georgia-Pacific Corp.,
Syl. pt.
Sanders
apt-
negligence that one court
tractor’s
In the
dered
at various
to clean the
B.
“right away,”
exterior of the store
to remove
Negligent Selection
store,
ceramic
from
animals
the front of the
argue
argument
Another
girlfriend
store,
to not
with his
made
liquor
negligent
hiring
that PPI
obtain a
license to increase sales of
Starr and/or
gasoline.
Rocket Mart to
ring up
sell
“gas”
food items as
on
We have
cards,
held
Virginia.
that such a
employ-
Chevron credit
fire
tort exists in West
and to
“There can be
ee of the Rocket
no doubt that this
Mart because she
“bad
court has
had
recognized a
teeth.”10
cause
action based
negligent hiring....”
claim of
McCormick
argues
had no more control
Virginia Dept.
Safety,
Public
operation
over
than
Rocket Mart
189, 193,
(1998).
any
supplier
any
product
other
sold
Virginia
Accord State ex rel. West
State
liable,
if PPI is found
all
Taylor,
Police v.
201 W.Va.
560 n.
suppliers
endless,
face
open-ended liability
289 n.
We identified
merely
supplying products to a store
this cause of action for
the first
time
where a tort is
disagree;
committed.
We
McGinnis,
Thomson v.
simply
representative
do not see a
of Frito-
S.E.2d 922
Lay or
discussing
advantages
Coca-Cola
*7
particular
(in
orthodontia for a
Rocket Mart
found in
principal
We
Thomson that a
employee,
successfully
broker)
or
demanding the re-
may
that
a real
case
estate
held
menagerie.
moval of Starr’s ceramic
party
liable to a third
damages
for civil
if the
principal is
negligent
and
selection
Though our
might
recitation of the facts
contractor,
negli-
retention of a
if
and
such
suggest otherwise,
taking
we are not
gence proximately causes harm to the third
position
plaintiff
prevail
should
at
McGinnis,
party.
See Thomson v.
195
trial.
note
Sipple
We
that Ms.
has raised a
465,
(1995); King
W.Va.
defense of contractor is not a Other have entertained a valid negligent defense under our Nor hiring law. are we cause of action for of an saying contractor, that mere indicia of will reasoning control vitiate appears question It from the record regarding that Starr failed to In PPI's reference to a hiring firing required by practices, agreements. obtain the over Starr’s insurance 8, replied: going PPI Starr "But is not to let me supra. See note girl throw no rotten-tooth behind the counter neither, you know.”
724 past. If cause we found sufficient securing services of the
negligently
summary
a grant
overturn
Thomson to
within one of
independent contractor falls
in-
ample reason in the
judgment, we find
recognized exceptions to
typically
several
case to do the same.
stant
employer is
liable for
rule that an
independent contractor.
of his
the actions
confined its hold
The Thomson court
677,
Lee,
F.Supp.
v.
679
Payne
686
See
it,
the case before
ing to the context of
(E.D.Tenn.1988),
Payne v.
sub nom.
aff'd
411 of
acknowledged the influence of section
Center,
1027, 1989 WL
872 F.2d
The Law
(Second)
upon its
of Torts
the Restatement
(6th Cir.1989);
v. St. Louis
Sullivan
Thomson,
n.
furnaces.
In
Sipple argues that
the lower
gun
allegedly knew
Ms.
with a
that PPI
killed
granted
have
by
court should not
premises,
employee
was on the
PPI, Starr,
that
gun
to her claim
the
in
as
purportedly knew had brandished
inexperienced
C
by
inattentive drivers.
is run
provided
the
and
One
Restatement
illustration
many
Virgi-
by
carrying
may ring
material and driven
to
citizens of
a truck
A's
familiar
over
subject
employees.
to
nia's coal fields:
B's
A is
one of
either to
bad
teamster,
C if the accident
due
builder,
B,
A,
employs
to haul
a
a
inexperience
of the truck or
condition
nearby
through
from a
rail-
the streets
material
way
inattention of
driver.
building
place
A
a
where
station
d,
(Second)
§
il-
411 cmt.
Torts
Restatement
B’s
old and in
A knows that
trucks are
house.
habitually employs
lus.
and that B
bad condition
engaged
joint
and
Rocket
were
relationship
categorize,
Mart
a
a
difficult to
but its
symbiotic
previously
suggests
joint
venture. We have
defined the
nature
that the
ven-
may
appropriate
ture label
term:
be
certain cir-
that,
cumstances.
haveWe
noted
intrinsic to
or,
joint
A
venture
as it is
re-
sometimes
venture,
joint
concept
is the
of mutual
to,
joint adventure,
is an
ferred
associa-
business,
promote
efforts
the success
persons
carry
two or
tion of
more
out a
of which would accrue to the benefit of all
enterprise
profit,
single business
for
parties:
they
purpose
which
their proper-
combine
joint
To constitute a
adventure
parties
skill,
ty, money, effects,
knowledge. It
and
must
their property, money,
combine
ef-
out
relationship
arises
of a contractual
be-
forts, skill,
knowledge,
or
in some common
parties.
tween the
may
The contract
be
undertaking
special
particular
aof
na-
or
written, express
implied.
oral or
ture, but
respec-
contributions
Halstead,
pt.
Price v.
177 W.Va.
parties
equal
tive
need not be
or of the
(1987); accord,
rangement produced mutual benefit both IV. Stan- PPI.12 CONCLUSION
PPI contends
because there
sharing
profits,
was no direct
there could
above,
For the reasons set forth
we re-
be no
verse,
venture.
convenience
proceedings
store/
remand this
case
gas
prevalent today presents
opinion.
combination so
consistent with this
Co.,
734, 755,
Kingwood
We have also
looked for the existence of
Coal
purpose”
attempting
(Starcher J.,
appor-
"common
when
Dissenting)(1997);
liability among parties:
Co.,
tion
Reynolds v.
&
Pardee
Curtin Lumber
(1983);
Reversed and
judgment
is
summary
whether
motion for
MAYNARD, deeming
dis-
himself
Justice
genuine
of fact and not how
there is a
issue
participate in
decision
qualified, did not
Syl. pt.
be
that issue should
determined.”
this case.
of
v. Federal Ins. Co.
Aetna Cas. & Sur. Co.
of
KAUFMAN, sitting by special as-
Judge
York,
New
Penn (1993) (affirming summary A.2d 622
judgment for Best it did Western because franchisee). operative not control details of majority opinion beyond leaped
rationality and reasonableness in order to