KIME V. HOBBS 562 N.W.2d 705 (1997) CASE BRIEF

KIME V. HOBBS

562 N.W.2d 705 (1997)

NATURE OF THE CASE: Kime (P) appealed the judgment of the District Court, which granted summary judgment to Hobbs (D), rancher, in P's personal injury action.

FACTS: P was a passenger in a vehicle truck from the rear by a tractor-livestock trailer unit being driven by Yelli. The collision killed the driver and produced injuries that resulted in permanent paralysis below the waist for P. Yelli owned the tractor; the livestock trailer was owned by D. Yelli was hauling a load of cattle belonging to D. D owned approximately eight livestock trailers; however, D did not own any tractors with which to pull the trailer units. D's son-in-law, Hawk, served as the dispatcher for the trucking part of the business. When D needed trucks, he would call Hawk and let him know the number of loads of cattle. Hawk would find the drivers and would advise them where and when to pick up the load. Yelli owned a single truck-tractor, which he hired out for profit. He supplied the oil, gas, grease, maintenance, and repairs for his own truck. There was no written agreement between D and Yelli defining their relationship. They claimed they had an independent contractor relationship. Drivers were paid approximately $1.40 per loaded mile for the most direct route between the pickup and unloading points. Yelli testified he took the route he wanted to take and that there was not a special route a driver was required to take. D reimbursed the truckers for overweight tickets unless the ticket was the driver's fault. The drivers were paid twice each month. Yelli was paid nonemployee compensation and D filed a Form 1099 with the Internal Revenue Service. D did not deduct any taxes from these payments. Yelli provided liability insurance on his truck. D provided collision coverage and licensing for his trailers. Yelli had no authority to use Hobbs' livestock trailer other than to load D's cattle, take them to their destination, and unhook the trailer. Hawk and the driver could arrange to use the trailer to haul another rancher's cattle if the trailer was not being used or if they were waiting at a sale and a short haul was available. A driver could hire another driver to drive the tractor on hauls for D without requesting permission to do so. Yelli owned his own grain trailer and his own refrigeration trailer and, prior to the job at issue, had been hauling corn for another rancher. Yelli testified that he never turned down a grain-hauling job to wait for Hawk to call him. Yelli stated that it was more advantageous financially to use his own trailer to haul D's trailer. P sued D claiming that Yelli was the agent, employee, and servant of D, that the transportation of a shifting load of cattle in a loaded livestock trailer being pulled by a tractor is an ultrahazardous and dangerous activity, imposing on D a nondelegable duty to see that his trailer and cattle were transported in a nonnegligent manner; and D was negligent in hiring Yelli. D filed a motion for summary judgment. The district court found that Yelli was an independent contractor, that transportation of cattle in a livestock trailer being pulled by a tractor was not an inherently dangerous activity, and that there was no evidence D was negligent in hiring Yelli. P appealed.

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