*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 225 S.E.2d 218 159 W.Va. say proper to ‘Indeed it would be ly noted: case, Sipple has introduced appellant instant important as primarily the rule is now substantial con- evidence that retained excep- catalog to the of its preamble the Rocket Mart. operation trol over Fire ’’(Citing Footnote 3: tions.’ Pacific under Sipple introduced evidence Ms. Co., Mfg. Kenny Boiler & Co. v. Ins. PPI and the written contracts between (1937).) 500, 277 Minn. N.W. specific regarding the demands made Corp., Georgia-Pacific operation, Sanders v. the cleanliness store’s hours of (quoting bathrooms, appearance store Company, gasoline. signs Summers v. Crown Construction sell PPI’s and the used to Cir.1972)). (4th gasoline we ownership F.2d What retained PPI also Sanders, customers, must be recognized price is that courts until set the sold attempt to companies guard against required pay on who workers gasoline, and Starr to place one Thus on compensation unemployment abuse the defense. insurance *6 defense, proof. of arguing employees. the burden premiums the for all store Addition- ally, right of refusal to lia- PPI reserved first against defend tort who would One if ever de- injuries purchase the Rocket Mart Starr by contending that were bility the has cided sell it.8 by independent contractor inflicted an specified Dispensing Hours in the “Motor Fuel implication. tend to These contractors will Operation” appended as Attachment hereto care then will of conduct activities with less their "B”; (b) operations Therefore, operate ... the motor fuel the actors more at stake.... with care, good prudence, responsibly with due frequency will a result of accidents increase as skill; (c) judgment treat all customers and of risk. of externalization courteously expeditiously including responding Shavell, Polinsky Punitive and Steven A. Mitchell complaints and mak- to all of such customers Damages: Analysis, Economic 111 Harvard An ing adjustments appropriate; ... fair where (1998) (footnote omitted). L.Rev. clean, sanitary, (g) maintain the restrooms adequately pro- lighted and well condition and Management Agreement” "Complete Fee 8. The (h) necessary provide supplies; suf- vided Graney, by signed titled as Starr and Patrick personnel and ficient trained courteous PPI, following lan- president of contained motoring and desires of the serve needs guage: lawns, (i) driveways, yards, public; keep the Manager [PPI] 2. Seller shall deliver shrubs, plantings neat and free from and other gasoline snow, of .... Seller will fix ice, [Starr] stocks weeds, debris, and rubbish.... products prices are to be at which Manager agrees that he will 16. ... further by manager.... dispensed carry employer's [sic] workmen’s cash, provided All shall be for howev- 6. sales compensation for himself and his insurance er, by Manager addition, sales made be made manager agrees credit employees. In only prior au- account after written premises liability against Seller's insurance maintain of, thority injury been obtained ... Seller. damage personal has from properly to oth- may $500,000 representatives of Seller 11. Authorized at least ers in amount of Products, inventory, inspect property, take stocks, Seller’s ad- Inc. listed an have Petroleum of goods and merchandise whatever ditional insured. any Mr. kind at time. ... Petroleum Products Inc. 28. and/or Charleston, [Manager] pay premiums Graney, Vir- shall all C. of West ... Patrick ginia III option purchase required [sic] Workman's shall have first contributions property have the Compensation, Unemployment .... and shall Insurance said business (a) any right bona-fide Manager operate of refusal to match Seller's first shall: purchase during .... operation offers motor fuel hours [PPI's] any note independent We also take of the fact that PPI contractor relationship, but required purchase liability only that, Starr insur- where substantial evidence con- ance, illegal premis- on offered, forbade activities question trol has been should be es, laws, compliance demanded with local re- jury. question submitted to a Where a as to quired personnel,” required “courteous the existence of an contractor respond expeditiously Starr to to customer relationship party and a presented exists complaints.9 indicating substantial principal’s performed, over the work the deter- Furthermore, presented Sipple Ms. testi- mination of the existence of such a relation- mony showing significant that PPI retained ship jury, is for the and a daily operations, control over the store’s be- inappropriate. yond express agreements. terms example, representative For of PPI or- times,

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. 465 S.E.2d 922 v. genuine issue over the material fact of PPI’s 136, Partnership, Lens Creek Ltd. Mart, control of the Rocket PPI has not 483 265 S.E.2d met proving its burden of the existence of independent relationship. contractor Thomson, In we noted that we are not Thus, summary judgment toas this issue is allowing plaintiff alone in a to recover from a improper. principal negligently who hired con- has a tractor: suggest We no means wish to that the independent jurisdictions

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. 195 W.Va. at 471 See decision. Associates, 352, 354-55 S.W.2d Station 6; 6, King n. v. Lens Creek 465 S.E.2d (Mo.App.1989). 140, Partnership, 199 W.Va. Ltd. instance, Pyramid Signore in Del For states: That section Servs., Inc., 147 A.D.2d Sec. subject employer An (1989), the New York court N.Y.S.2d 640 physical persons harm to third caused negligent hiring an action held that reasonable [or her] his failure exercise independent contractor who assaulted and careful employ competent care patrons be maintained concert could contractor unquali engages an employer “where the (a) a risk of to work which will involve do or, when on or careless contractor fied skillfully physical harm it is unless performance, fails to deficient notice of done, carefully negli prevent the continuance such (b) any gence.” perform duty employ- which the persons. er to third owes McGinnis, Thomson (footnotes (Second) § of Torts Restatement omitted). Sipple Appellant (1965).11 some citations concur with the sentiment that We evidence that knew that introduced principal liable for harm caused his gun premises, that kept Starr care to her failure to exercise reasonable firefight engaged in a outside of contractor, had Starr competent and careful employ a toyed Fields had with the and that adopt of the Restate- this section gun presence of before. in the customers ment. her, jury agree not a would Whether or jury whether a would It remains be seen Sipple presented we feel that negligent under this standard. find PPI fact, namely that PPI was of material issue However, appellant has intro- because performance on notice of deficient did not suggests duced evidence failed to and the Rocket Starr in its exercise reasonable care selection negligence. prevent of such the continuance Rocket Mart as retailers of Starr and the Thomson, the real estate In we found that lower court’s *8 broker, find a contractor who volunteered to judgment inappropriate. was inspection, be found liable for a furnace could who, hiring negligent for her of a contractor C. out, qualified inspect to was not as turned Joint Venture us, man the case before a was

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, 355 S.E.2d 380 Johnson v. must, however, same character. There Co., State Mut. Auto. Farm Ins. 190 W.Va. party some contribution each of some- 438 S.E.2d 869 thing promotive enterprise. provided suggests The evidence that PPI 487, 497-498, v. Cearfoss, Pownall 129 W.Va. property, gas signs, the form of pumps, (citation omitted).13 equipment, associated as well as its skill presented Sipple substantial that knowledge gasoline, the sale of to the both PPI and Starr contributed “property, operation of the Rocket Mart. efforts, money, knowledge” skill [and] to the course, location, store, provided the operation of the Rocket both personnel necessary to makes sales parties made “promotive contributions gasoline public. Although Stair did Pownall, enterprise.” supra. We no are directly pay to PPI some fractional share suggesting just any mutually means every groceries, sale of beer PPI still relationship, beneficial commercial such as profited could be said to have from those gas combination of station and conve possible jury sales. It is that a could find joint nience rises to level of a that, more customers attracted to the feel, however, venture. We do buy non-gas Rocket Mart to products, the jury question raised this issue in the potential case, more customers for PPI summary judgment instant and that granted and the jury improvidently converse as well. feel a as to We this conten tion. should be able to consider whether the ar-

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); 310 S.E.2d 870 Cowan v. One land, acting Where lessor and lessee of *9 Valet, 941, Inc., Hour 151 W.Va. 157 S.E.2d 843 pursuance purpose, of a common the lessor (1967). permitting the to lessee erect structures which another, damage cause to the land of there is seeking application 13. A defendant to avoid misjoinder parties making no of in actions joint many of venture of makes the same parties such lessor and a lessee defendant in arguments adopting as one con- single brought by injured party action impose seeking defense. to damages. tractor Those liabili- such 2, McKenzie, ty goal, either pt. in case have the same to encour- O'Dell v. 150 W.Va. See, age (1965)(citing Flanagan e.g., Gregory 145 S.E.2d 388 v. the internalization of risks. Robert Poole, 865). Accord, Thompson, Unpacking Liability, & 136 W.Va. S.E.2d B. Limited 1, (1994). Virginia Div. Environmental Protection Vand. L.Rev. of (1998). question on a “The to be decided remanded.

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 133 S.E.2d 770 signment. Syllabus point In 2 of Williams Coil, Inc., 194 W.Va. Precision Justice, DAVIS, dissenting: (1995), explained we that (Filed 1999) July if, Summary judgment appropriate is totality presented, from the of the evidence summary simple a and routine This was trier record could not lead a rational of litiga- into judgment case that has turned a nonmoving party, such fact to find for the case, sought In this nightmare. tion nonmoving party failed to as where the (hereinafter Products, Inc. hold Petroleum showing on an essential make a sufficient “PPI”), supplier of liable for the a that it has the burden element case son, solely the basis of her death prove. in gasoline through the store distributed Finally, Syllabus point in 5 of Jividen v. majori- killed. Under which her son was Law, (1995), 705, 461 S.E.2d 451 gasoline is ty today, distribution of decision meaning “genuine explained the issue” joint a all that is needed establish venture. joint as follows: finding contrary a to the law. A Such is requires property stated, a combination “genuine venture Roughly a issue” for entity, a a with Virginia and skill create business purposes of Civil of West Rule par- 56(c) in joint proprietary interest which both simply one half Procedure profits and mutu- issue, ties share in the maintain a genuine trialworthy does issue right enterprise. al the created arise unless there is sufficient joint sharing profits must and not The favoring non-moving party rea- Jurisprudence several. See 10B Michie’s jury sonable to return a verdict for that Ventures, § 2 Joint party. opposing trialworthy half The non-moving par- present issue is where the case, In not own the store and this PPI did ty point disputed can to one or more “ma- in control the store. PPI’s interest did not A terial” facts. material fact is one only the of its the store involved distribution capacity sway the outcome of has the Thus, correctly gasoline. the circuit court litigation applicable law. under that no material issue fact was concluded dispute, engaged in The facts this case are in as PPI was not consistent Co., specifi with the store owner. It was the decision Cardounel v. Shell Oil venture (1) cally (Fla.Dist.Ct.App.1981). the circuit court that In determined So.2d Cardounel, only plaintiff into David shareholder of Rocket drove a service overheating for his and controlled Rocket Mart’s station obtain water owned (2) no was premises; had control over vehicle. The service station owned affairs, including gas operator. daily hiring and and leased to the station store’s Shell firing employees; plaintiff got argument The with the Rocket Mart into gas operator, which culminated profits. PPI and David Starr did not share station brought plaintiff being shot. An action was The circuit court’s decision was consistent summary sought granting plaintiff he to hold with the standard for which is, judgment. operator’s liable for the station conduct. That motion Shell “[a] summary judgment granted only granted should be when it The trial court affirmed, appellate no to to Shell. court clear that there is issue of fact inquiry doing trial concerning “[t]he the facts is so held that court be tried gas theory station clarify application [the not desirable to correct on the *10 employee, operator] agent not an Syl. pt. Area law.” Tiernan Charleston Cardounel, Ctr., Inc., independent contractor.” Med. was an omitted). (Citations So.2d at 328-329. conclude issues of material fact Hoffnagle also Corp., v. McDonald’s See engaged exist as whether PPI was in a (Iowa 1994) (affirming summary- N.W.2d venture David Starr. With such judgment for McDonald’s because did analysis, Therefore, I agree. cannot I day-to-day operations fran- have control over respectfully dissent. I am authorized chisee); Corp., Pa.Super. Smith v. Exxon Kaufman, Judge sitting special state that (affirming 647 A.2d 577 dismissal judge, joins me in this dissent. against only of case Exxon because it had quality gasoline); Myszkowski control over Hotel, Inc., Pa.Super. Stroud

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