Perkins v. Gregory Mfg. Co.

671 So. 2d 1036, 95 La.App. 3 Cir. 01396, 1996 La. App. LEXIS 654, 1996 WL 120068
CourtLouisiana Court of Appeal
DecidedMarch 20, 1996
Docket95-01396
StatusPublished
Cited by18 cases

This text of 671 So. 2d 1036 (Perkins v. Gregory Mfg. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perkins v. Gregory Mfg. Co., 671 So. 2d 1036, 95 La.App. 3 Cir. 01396, 1996 La. App. LEXIS 654, 1996 WL 120068 (La. Ct. App. 1996).

Opinion

671 So.2d 1036 (1996)

Larry Wayne PERKINS, et al., Plaintiff-Appellant,
v.
The GREGORY MFG. CO., Defendant-Appellee.

No. 95-01396.

Court of Appeal of Louisiana, Third Circuit.

March 20, 1996.

*1037 John Taylor Bennett, Marksville, Roy Seale Halcomb Jr., Alexandria, C. Richard Oren, Anthony F. Salario, Baton Rouge, for Larry Wayne Perkins et al.

Donald A. Hoffman, Paul J. Politz, New Orleans, for The Gregory Manufacturing Company et al.

Henry Gregory Walker Jr., James Morgan Passman, Alexandria, for Scott Truck & Tractor, et al.

H.O. Lestage III, DeRidder, for Boise Cascade Inc.

Albin Alexandre Provosty, Alexandria, for Blount, Inc.

Before COOKS, DECUIR and GREMILLION, JJ.

GREMILLION, Judge.

Larry Wayne Perkins, appeals the trial court's granting of Boise Cascade Corporation's motion for summary judgment, dismissing all claims against it. After reviewing the record in its entirety, we affirm finding no genuine issue of material fact existed and that Boise was entitled to judgment in its favor as a matter of law.

FACTS

On February 27, 1987, Boise Southern Corporation contracted with Kim Johnson Trucking Company to harvest timber on one of its properties.[1] Kim Johnson Trucking then either contracted with or hired George Davis to supply the saws and tree trimmers. Davis hired Perkins as a tree trimmer. The harvesting of the timber began on March 2, 1987. A few hours after the commencement of this operation, a tree, felled by a directional shear attached to a hydro ax, fell on Perkins and he suffered injuries to his shoulder, arm, and brachial plexus. On March 1, 1988, Perkins filed suit against Gregory Manufacturing Company, the manufacturer of the directional shear, and Scott Truck and Tractor Company, the seller of the shear. On December 13, 1994, Perkins amended his petition naming Omark Industries and/or Blount, Inc., the manufacturer of the hydro ax, and Boise Cascade Corporation, the owner of the tract of land. In the amending petition, Perkins alleged that Boise was negligent of the following acts:

(a) That Boise owned the property, the timber and the mill involved with this timber project and that it was negligent in failing to hire competent personel *1038 to conduct this dangerous timber project.
(b) That Boise failed to properly inspect and supervise its project.
(c) That Boise failed to properly inspect and supervise the equipment, the education, and training given to the employees by the persons paid by Boise, and any contractors retained by Boise.
(d) That Boise knew or should have known that the persons hired to conduct this timber operation had absolutely no training or educational program or safety program and that Boise had a duty to implement a safety and educational program.
(e) That Boise failed to properly follow governmental regulations, including OSHA regulations, and that said violation was a cause in fact of the accident and the injuries to Larry Wayne Perkins.
(f) That Boise knew or should have known of the use of the directional shearer and that it failed to inspect the shear and failed to warn or implement a policy to warn of dangers associated with the use of the directional shear.
(g) That Boise allowed work to be conducted with use of an inherently dangerous machine.

On April 28, 1995, Boise filed a motion for summary judgment asserting that because Perkins was an employee of Kim Johnson Trucking, an independent contractor, it is not liable for his injuries. On June 28, 1995, a hearing was held and the trial court granted Boise's motion and dismissed Perkins' claim. A motion for a new trial was filed and was subsequently denied. Perkins appealed alleging the following:

I. Whether the trial judge erred in granting Boise's motion for summary judgment on a holding that Kim Johnson Trucking Company was an independent contractor, therefore, precluding liability.
II. Whether the trial judge erred in holding that Boise was not negligent in causing the plaintiff's injuries.
III. Whether OSHA standards specifically directed to logging industry safety were applicable to Boise's actions or inactions.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo applying the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). Summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. Facts are material if they determine the outcome of the legal dispute. South Louisiana Bank v. Williams, 591 So.2d 375 (La.App. 3 Cir. 1991), writ denied, 596 So.2d 211 (La.1992). The determination of the materiality of a particular fact must be made in the light of the applicable substantive law. Sun Belt Constructors v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988). Documents supporting the moving parties position are closely scrutinized while those of the party opposing are indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A party opposing a motion for summary judgment cannot rely on the bare allegations of their pleadings but must respond by affidavits detailing facts that show the existence of a genuine issue. La.Code Civ.P. art. 967.

INDEPENDENT CONTRACTOR STATUS

The legal relationship between Boise and Kim Johnson Trucking is determined from the contract creating the relationship and from their intentions in establishing and maintaining that relationship, as exhibited in its performance and surrounding circumstances. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972). To attain the status of an independent contractor, it must be established *1039 that a valid contract exists between the parties and that the contract calls for specific piece work as a unit which can be accomplished by non-exclusive means. Id. In carrying out the contractual obligation, the independent contractor must be able to employ its own methods free from the control and direction of the principal, except as to the desired results. Id. Furthermore, the contract must set a specific price for the overall undertaking, provide a specific time or duration in which the undertaking must be completed, and not be subject to termination at the will of either party without that party being subject to liability for breach. Id. Of primary concern, however, is whether the principal retained the right to control the work. In ascertaining the level of control retained by the principal, the actual control exercised is not as important as the right to control. Smith v. Crown Zellerbach Corp., 486 So.2d 798 (La.App. 3 Cir.), writ denied, 489 So.2d 246 (La.1986).

The portions of the contract between Kim Johnson Trucking and Boise Southern pertinent to the analysis concerning the independent contractor status of Kim Johnson Trucking read as follows:

* * * * * *
11.

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Cite This Page — Counsel Stack

Bluebook (online)
671 So. 2d 1036, 95 La.App. 3 Cir. 01396, 1996 La. App. LEXIS 654, 1996 WL 120068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-gregory-mfg-co-lactapp-1996.