In this proceeding, the majority opinion has affirmed the trial court's order
granting summary judgment in favor of the appellee, Southern Equipment Company
(hereinafter referred to as “SEC”). In so doing, the majority of the Court has rejected the
issues raised by the appellants, Langley and Inez France, individually and as the parents of
Robert France (collectively referred to as “the Frances”), as to why summary judgment was
inappropriate. I believe that one of the issues asserted by the Frances, the illegal employment
of Robert, required reversal of the summary judgment order. Consequently, for the reasons
set out below, I respectfully dissent.
The doctrine of the nonliability of one for the negligence
of another because the latter is an independent contractor does
not apply to relieve the former from liability for the omission of
a duty imposed upon him by law in behalf of the safety of the
public.
Shaffer, 206 W. Va. at 345, 524 S.E.2d at 700. Shaffer explained the significance of the
Carrico decision as follows:
The obvious import of Carrico and its progeny is that,
where the work or service to be performed in itself entails the
commission of some illegal . . . act, the [independent contractor
defense] obviously cannot apply, because in such instance the
principal and the independent contractor both play an integral
part, are both proximate causes, of whatever harm ensues. The
illegal work exception to nonliability requires the knowledge
and sanctioning of the illegal act . . . by the owner.
Shaffer, 206 W. Va. at 345, 524 S.E.2d at 700 (internal quotations and citations omitted).
After Shaffer thoroughly analyzed and discussed other authorities, the Court
set out the following principles of law in Syllabus points 6 and 7 of the opinion:
6. The independent contractor defense is unavailable to
a party employing an independent contractor when the party (1)
causes unlawful conduct or activity by the independent
contractor, or (2) knows of and sanctions the illegal conduct or
activity by the independent contractor, and (3) such unlawful
conduct or activity is a proximate cause of an injury or harm.
7. When a statute imposes a duty on a person for the
protection of others, it is a public safety statute and a violation
of such a statute is prima facie evidence of negligence unless the
statute says otherwise. A member of a class protected by a
public safety statute has a claim against anyone who violates
such a statute when the violation is a proximate cause of injury
to the claimant.
Ultimately, the Shaffer opinion reversed the trial court's summary judgment order in favor
of Acme on the grounds “that summary judgment was inappropriate because [plaintiff]
established an exception to the independent contractor defense. That exception is the illegal
work exception to the independent contractor defense.” Shaffer, 206 W. Va. at 349, 524
S.E.2d at 704.
Here, the Frances argued before the circuit court and this Court that the
decision in Shaffer precluded summary judgment because SEC knowingly allowed Robert
to work on its roofing project in violation of W. Va. Code § 21-6-2(a)(16) (2002) (Repl. Vol.
2008). As previously indicated, the sole basis for the circuit court's decision to reject Shaffer was that “Royalty Builders was the employer of Robert France, not Southern Equipment
Company.” The circuit court and the majority opinion were both wrong in rejecting the
application of Shaffer to the instant case.
West Virginia Code § 21-6-2(a)(16) of the West Virginia Child Labor Act
prohibits the employment of children under the following circumstances:
(a) No child under eighteen years of age may be
employed, permitted or suffered to work in, about, or in
connection with any of the following occupations:
. . . .
(16) Roofing operations above ground level.
This Court previously has interpreted this provision and has indicated that “[t]he purpose of
the statute . . . is to prohibit and regulate the employment of minors.” Jackson v. Monitor
Coal & Coke Co., 98 W. Va. 58, 65, 126 S.E. 492, 495 (1925). We also have indicated that
“[t]he employment of a child in violation of provisions of [the Child Labor Act] . . . is
actionable negligence . . . when such violation is the natural and proximate cause of an
injury.” Syl. pt. 1, in part, Harper v. Cook, 139 W. Va. 917, 82 S.E.2d 427 (1954).
In resolving this issue, the majority opinion erroneously concludes that
Robert's age played no role in causing him to fall. I reject this conclusion for two reasons.
First, this conclusion resolves a jury issue. That is, it was for the jury to decide whether
Robert's age and inexperience contributed to his fall. Second, and most importantly, the
majority's conclusion on this issue insults one of the critical purposes of our Child Labor
Act. The Child Labor Act takes into account that children are more susceptible to injury in
the work place precisely because of the inexperience that is inherent in youthfulness. Indeed
one court has correctly observed that “[i]t cannot be disputed that a primary legislative
purpose of the Child Labor Law is to protect minors in employment relationships from
excessive risk of personal injury. A blanket prohibition against employment in such
activities as [roofing] operations fosters that purpose.” Patterson v. Martin Forest Prods.,
Inc., 774 So. 2d 1148, 1151 (La. Ct. App. 2000).
Under the facts of the case sub judice, the second Shaffer ground for losing the
independent contractor defense is applicable. That is, under Shaffer, a material issue of fact
exists as to whether SEC knew of and sanctioned the illegal employment of Robert. On this
point, the majority opinion erroneously concludes that the Frances could not show that SEC
“sanctioned” Robert's illegal employment. The majority contends that “[t]o sanction an
activity requires some active approval or encouragement.” However, the majority “defines
the word 'sanction' far too narrowly.” Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc.,
188 W. Va. 468, 473, 425 S.E.2d 144, 149 (1992). The majority's definition completely
overrules our line of cases that hold that a person's silence can be deemed to be a ratification
or sanctioning of conduct when that person has a duty to affirmatively disapprove of such
conduct. “The authorities almost uniformly say that acquiescence after knowledge of an
unauthorized act is evidence of ratification[.]” Thompson v. Murphy, 60 W. Va. 42, 48-49,
53 S.E. 908, 910 (1906). It is black letter law that,
[i]f the principal, either by his conduct, by his words, or by his
silence, has led others to believe that he has sanctioned an
unauthorized act, performed in his behalf by his agent or by an
assumed agent, he will be held to have ratified such act, whether
it was his actual intention to do so or not.
Payne Realty Co. v. Lindsey, 91 W. Va. 127, 131, 112 S.E. 306, 308 (1922) (internal
quotations and citation omitted). Accord In re Uwimana, 274 F.3d 806, 812 (4th Cir. 2001)
(“An intention to ratify may be inferred by words, conduct or silence on the part of the
principal that reasonably indicates its desire to affirm the unauthorized act.” (internal
quotations and citation omitted)).
In support of their argument, the Frances' brief set out the following deposition
testimony of SEC's vice-president on the issue of Robert's age:
Q. Did you recognize [Robert] from any of the previous days?
A. No. I seen all of them, but, you know, as far as picking him out
from any of the other people, no, I did not.
Q. He didn't stand out that way?
A. Well, he was young. Younger than the other people that was
working, yes.
Q. Was that apparent to you?
A. It was pretty apparent, yes.
. . . .
Q. You knew [Robert] was a kid, though, didn't you.
A. Yes.
Q. Everybody knew he was a kid?
A. Yeah.
It is crystal clear from the deposition testimony of SEC's vice-president that
he knew Robert was a “kid.” This admission was sufficient to preclude SEC's reliance on
the independent contractor defense. See Felder v. Old Falls Sanitation Co., Inc., 359
N.Y.S.2d 166, 170 (1974) (“'Thus when one engages an independent contractor to perform
certain work and the contractor employs infants in violation of the statute, the one engaging
the contractor will be held to have violated the law in permitting the infant to do the work.'”
(quoting Bernal v. Baptist Fresh Air Home Soc'y, 87 N.Y.S.2d 458, 464 (1949))).
Ultimately, it is a jury question as to whether the vice-president's use of the word “kid”
referred to Robert appearing younger than eighteen years of age. See Styles v. Mobil Oil
Corp., 459 S.E.2d 578, 580 (Ga. Ct. App. 1995) (“[A] material issue of fact exists as to
whether Mobil ratified the allegedly un[lawful] conduct of its contractors, and the grant of
summary judgment to Mobil was error.”). That is to say that the issue of whether the vice-
president had knowledge that Robert was not of the age of majority, i.e., eighteen, was a jury
question.
In addition to the application of the second Shaffer factor, SEC could not rely
on the independent contractor defense because of specific caselaw by this Court construing
the meaning of “permitting or suffering” under W. Va. Code § 21-6-2(a). This is so because
the statute does not require that a child be an actual employee of a business to find that a
business has violated this State's Child Labor Act. In addition to prohibiting actual
“employment” in certain circumstances, the statute also prohibits a business from “permitting
or suffering” a child to work under the prohibited conditions. (See footnote 3) See Ewert v. Georgia
Cas.
& Sur. Co., 548 So. 2d 358, 364 (La. Ct. App. 1989) (Doucet, J., dissenting) (“The wording
of the statute makes 'employed,' 'permitted,' and 'suffered' equal, so that violations of the
statute by any of the three enumerated means are all equal violations of the statute.”); Gabin
v. Skyline Cabana Club, 258 A.2d 6, 9 (N.J. 1969) (“If the Legislature intended to limit this
section to cases where a minor was 'employed,' it would not have included the phrase
'permitted or suffered to work.'”); Ludwig v. Kirby, 80 A.2d 239, 242 (N.J. Super. Ct. App.
Div. 1951) (“It is to be observed that not only employment of a minor . . . is prohibited, but
also permitting or suffering him to do such work.”); Swift v. Wimberly, 370 S.W.2d 500, 505
(Tenn. Ct. App. 1963) (“[T]he mere permitting or suffering of plaintiff to work . . . at the
time he was injured, constitutes a violation of said child labor statutes, even though plaintiff
was never formally employed.”); Milwaukee News Co. v. Industrial Comm'n, 271 N.W. 78,
83 (Wis. 1937) (“It suffices to render an employer liable . . . under that statute that he
suffered or permitted a minor . . . to work by assisting an employee of the employer with the
latter's knowledge, actual or constructive.”), superseded by statute as stated in Beard v. Lee
Enters., Inc., 591 N.W.2d 156 (Wis. 1999). This Court has explained that “[t]o have
'permitted' or 'suffered' [a minor] to work . . ., defendant would have had to have knowledge
that he was working there.” Harper v. Cook, 139 W. Va. 917, 925, 82 S.E.2d 427, 433
(1954). In other words, absent an actual employer-employee relationship, a business is still
“liable for having permitted or suffered a child to continue [working when it] knew, or
should have known, that the child was performing work for the [business].” Syl. pt. 2, in
part, Harper, id.
A case that illustrates the meaning of “permitting or suffering” a child to work
in violation of child labor laws is Gorczynski v. Nugent, 83 N.E.2d 495 (Ill. 1948). In Gorczynski, a thirteen-year-old boy was hired by a horse trainer, named Frank Nugent, to
walk and cool off his horses after workouts or races at a race track. The boy was injured
when a horse kicked him. The boy's parents sued the horse's owner, Elizabeth Nugent;
Frank Nugent; and the race track owners. A jury rendered a verdict in favor of the boy and
his parents. The owners of the race track appealed. One of the issues raised by the race track
owners was that they did not employ the boy. Therefore, the track owners argued that they
could not be held liable for violating the child labor law, which prohibited employment of
the boy because of his age. The appellate court in Gorczynski rejected the argument as
follows:
The facts in this case establish that plaintiff was illegally
employed at a gainful occupation by the Nugents in connection
with appellants' place of amusement, which would leave for
determination the remaining or principal question whether
appellants 'permitted or suffered' plaintiff to so work.
Appellants urge they are not liable because the Nugents were not
their employees and appellants had no control over plaintiff's
employment by the Nugents. In the case of Purtell v.
Philadelphia & Reading Coal & Iron Co., . . . 99 N.E. 899, 902
. . . [(Ill. 1912)], the plaintiff, a minor under the statutory age,
was employed as a water boy by coal pushers working in
defendant's coal yard. While so employed he was injured and
filed suit under the Child Labor Act. It was there held that the
relation of master and servant is not necessary in applying the
act. The court specifically said in that case, 'The coal pushers
who hired appellee were servants of appellant and were entirely
under its control. The latter had the right to order its employees
to hire no boys under lawful age to carry water, and to enforce
obedience to such order.' In the instant case the Nugents were
not employees of appellant and to that extent this case is
different from the Purtell case. However, an examination of the
evidence shows that the right to control the Nugents' conduct on
appellants' premises was as extensive as if they had been
employees.
. . . .
It is apparent from the evidence in this case that
[appellants] could have caused a suspension of the Nugents for
violation of the law, could have prevented the plaintiff from
entering the stable area, and were under a positive duty to
investigate both the Nugents and the plaintiff and require the
plaintiff be either discharged or furnished with proper
credentials. We hardly see how the power of control over the
Nugents and plaintiff could have been more complete. We said
in the Purtell case, 'It is the child's working that is forbidden by
the statute, and not his hiring, and, while the statute does not
require employers to police their premises in order to prevent
chance violations of the act, they owe the duty of using
reasonable care to see that boys under the forbidden age are not
suffered or permitted to work there contrary to the statute.' We
find here that appellants knew or could have known by the
exercise of reasonable care, . . . that plaintiff was illegally
employed on its premises and under such circumstances
permitted or suffered plaintiff to work in violation of the statute.
Gorczynski, 83 N.E.2d at 498-99.
Under Gorczynski and this Court's precedent, it was and is irrelevant that SEC
did not employ Robert. Pursuant to W. Va. Code § 21-6-2(a)(16), SEC could be held liable
for “permitting or suffering” Robert to work on its roof if it knew or reasonably should have
known that Robert was younger than eighteen years old. This issue, like the Shaffer analysis,
presented a jury question.
In view of the foregoing, I respectfully dissent. I am authorized to state that
Justice Workman joins me in this dissenting opinion.