Allen Baize owned a Kentucky lumber yard and sawmill known as Greenville Log and Lumber Co. Baize hired Darrell Hargis on an independent contractor basis to haul logs to and from Greenville and various other locations. During the last six months of his life, Hargis worked exclusively for Baize. In November 1998, Baize dispatched Hargis to pick up a load of logs that Baize had purchased from Whitney & Whitney Lumber Co. 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. Hargis did so in accordance with Baize's policy, which required all truck drivers to release the binders on their loads and then move at least two truck lengths in front of the truck in order to be in full view of the forklift operator while the logs were being unloaded. A Baize employee was standing by in his forklift waiting for Hargis to release the binders so that he could unload the logs. When Hargis released the binders, however, a large log rolled off the trailer, struck Hargis, and killed him.
Hargis's widow sued Baize in a Kentucky court.
The plaintiff alleged that the fatal accident resulted from Baize's failure to comply with a certain Kentucky administrative regulation, which had been promulgated by the Kentucky Occupational Safety and Health Standards Board (KOSHSB) under authority granted by a state statute, the Kentucky Occupational Safety and Health Act. The KOSHSB regulation at issue in the case incorporated by reference the content of a federal administrative regulation dealing with the unloading of logs. That federal regulation, promulgated pursuant to the federal Occupational Safety and Health Act, provided in pertinent part that "binders on logs shall not be released prior to securing with unloading ties or other unloading device." Under the factual circumstances giving rise to the plaintiff's case, "securing" the logs with an "unloading device" meant using the forks of the forklift to stabilize the logs and keep them from rolling off the truck when the binders were released. Baize admitted that it was not his company's policy to comply with the above-quoted regulation. Baize's former safety officer testified in a deposition that an insurance representative had visited the Greenville site two weeks before Hargis was killed and had recommended implementation of the log-securing procedures required by the KOSHSB regulation.
According to the safety officer, Baize's operations manager rejected the recommendation even though the operations manager himself had been injured recently in a similar accident. Following completion of discovery, the plaintiff moved for summary judgment on the issue of Baize's negligence. In doing so, the plaintiff sought to rely on the negligence per se doctrine. Baize also moved for summary judgment, arguing that a violation of the KOSHSB regulation did not create a private right of action in favor of the plaintiff and that in any event, Baize's only duty to an independent contractor such as Hargis was to warn him of any hidden dangers on the premises. Agreeing with Baize that the negligence per se doctrine did not apply, the trial court overruled the plaintiff's motion for partial summary judgment and granted summary judgment in favor of Baize. Was the court correct in concluding that negligence per se did not apply to the case?

  • CreatedJuly 16, 2014
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