E. W. Rugeley, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorneys for Toyota Companies

JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.

E. W. Rugeley, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorneys for Toyota Companies

JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.

        1.    In a negligent hiring cause of action, in which a principal may be subjected to liability if he fails to exercise reasonable care in retaining a competent and careful contractor who subsequently injures a third party, the financial responsibility of the independent contractor is not an element to be considered in determining whether the independent contractor is competent.

        2.    A principal has a non-delegable duty to exercise reasonable care when performing an inherently dangerous activity; a duty that the principal cannot discharge by hiring an independent contractor to undertake the activity.

        3.    To constitute an inherently dangerous activity, the work must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that danger must be naturally apprehended by the parties when they contract. Only then will the work constitute an inherent danger that places a non-delegable duty upon the one ordering it to protect third parties against the resulting injury.

        Circuit court's answer: YES
        2. Whether the operation of an empty commercial log truck upon the highways of our state is an inherently dangerous activity such that [it] will impose the negligence of the truck driver to his employer, regardless of the nature of the employment relationship?

        Circuit court's answer: NO
        The certified questions are the result of the circuit court's denial of the parties' motions for partial summary judgment. "West Virginia Code, 58-5-2 (1967), allows for certification of a question arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case." Syllabus Point 5, Bass v. Coltelli, 192 W. Va. 516, 453 S.E.2d 350 (1994). Because there is a sufficiently precise and undisputed factual record upon which the legal issues can be determined, and because these legal issues substantially control this case, the questions are properly certified under W. Va. Code 58-5-2 (1967).See footnote 2 We therefore consider the questions certified by the circuit court and answer both certified questions in the negative.

        The defendant, Lens Creek Limited Partnership (hereinafter "Lens Creek"),See footnote 3 owns a parcel of land in Kanawha County approximately 2800 acres in size upon which there is a quantity of standing timber. In January of 1988, Lens Creek entered into a "Timber Agreement" with Frederick Gene Maloskey and Tommy D. Mann, d/b/a M & M Trucking/Ashford (hereinafter "M & M"), whereby M & M would purchase timber located on the Lens Creek property and transport the timber for sale to third-party buyers. In addition to an initial purchase price, Lens Creek received a percentage of the gross income from timber sold by M & M. Under the "Timber Agreement," M & M was required to carry public liability insurance with coverage limits in the amount of $300,000 and property insurance with coverage limits in the amount of $500,000.
        Shortly after entering into the "Timber Agreement," M & M quit the timber operation. Dallas C. Holstein and Clayton L. Holstein, who are brothers, assumed the operation under the same terms previously agreed upon between Lens Creek and M & M.
        On June 25, 1993, Dallas Holstein, who was returning to the Lens Creek property after delivering a shipment of timber, entered Route 119 (also known as Corridor G) without yielding the right of way, thereby causing a collision between the empty logging truck he was operating and an automobile operated by one of the plaintiffs, Joy King, who was returning home from work.See footnote 4 As a result of the collision, Mrs. King suffered head and internal injuries, incurring medical costs exceeding $110,000.00 and suffering over $11,000.00 in lost wages.
        This civil action was instituted in the Circuit Court of Boone County, which was filed by Joy King, her husband David King, and a consortium claim brought on behalf of their daughter, Shannon King. Among the defendants named were the Holsteins, Lens Creek Limited Partnership, and Long Management Company.See footnote 5
        The record indicates that the Kings filed two motions for partial summary judgment. The first motion asserted that the Kings were entitled to judgment as a matter of law that Lens Creek was negligent in hiring a competent independent contractor because the contractor lacked adequate liability insurance and financial resources. The Kings filed a second motion for partial summary judgment on the issue of liability against Lens Creek, contending that they were entitled to judgment as a matter of law because the operation of the logging truck by Dallas Holstein was an inherently dangerous activity, as recognized by West Virginia law,See footnote 6 and that the negligence of Mr. Holstein should therefore be imputed to Lens Creek.
        Conversely, the record indicates that Lens Creek also filed two motions for partial summary judgment. The first motion requested the circuit court rule as a matter of law that a negligent hiring cause of action does not turn on the independent contractor's financial responsibility, in other words, competency does not equate with financial responsibility. Lens Creek's second motion for partial summary judgment requested the circuit court rule as a matter of law that the negligence of an independent contractor, while operating an empty logging truck, should not be imputed to the principal who has contracted for services, because the operation of the empty logging truck is not an inherently dangerous activity.
        The circuit court, in its order of October 26, 1995, sorted through all of these various motions for partial summary judgment--with their diverse and alternate theories of liability or lack thereof--and found a genuine issue of fact existed upon the Kings' theory of liability asserted under a negligent hiring standard of liability, and also concluded that the operation of an empty commercial logging truck is not an inherently dangerous activity. As a result, the circuit court denied the parties' cross-motions for summary judgment on the negligent hiring issue, granted Lens Creek's motion for summary judgment that the operation of an empty logging truck is not inherently dangerous, and certified the two questions we have previously noted.

        We review questions of law answered and certified by a circuit court under a de novo standard. Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., ___ W. Va. ___, 475 S.E.2d 172 (1996).

        This certified question is premised upon the exception to the general rule that a principal will be held liable for the negligence of an independent contractor if the activity, for which the independent contractor was retained, is inherently or intrinsically dangerous.See footnote 7,See footnote 8 Syllabus Point 1, Chenoweth v. Settle Eng'rs, Inc., 151 W. Va. 830, 156 S.E.2d 297 (1967), overruled, in part, on other grounds by Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). This exception to nonliability emerges from the principal's non- delegable duty to exercise reasonable care when performing the inherently dangerous activity; a duty that the principal cannot discharge by hiring an independent contractor to undertake the activity.See footnote 9 See Majestic Realty Assoc. v. Toti Contracting Co., 153 A.2d 321 (N.J. 1959).
        Is the operation of an empty logging truck an inherently dangerous activity? We have not had the opportunity to address what constitutes an inherently dangerous activity as part of our negligence jurisprudence. However, in Arthur v. Holy Rosary Credit Union, the Supreme Court of New Hampshire provides a useful definition of what constitutes inherently dangerous activity:
         [T]o be an inherently dangerous activity, construction, or any other work, [it] must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that the danger must be naturally apprehended by the parties when they contract. Only then will the work constitute an inherent danger that places a non-delegable duty upon the one ordering it to protect third parties against resulting injury.
Arthur v. Holy Rosary Credit Union, 656 A.2d 830, 833 (N.H. 1995) (citation omitted).See footnote 10
        Adopting this definition into our own jurisprudence, we find that the operation of an empty logging truck is not in and of itself dangerous so that harm will likely result if special precautions are not taken; but only dangerous, as was the case here, when the truck is operated in a negligent manner. The mere negligent operation of an empty logging truck does not create the type of danger constituting inherently dangerous activity for which the principal cannot delegate its duty. We find more specific support in the case law from other jurisdictions, which hold that the mere operation of an empty tractor trailer truck is not so inherently dangerous as to make an principal liable for the injuries caused by the negligence of an independent contractor. Eastern Airlines v. Joseph Guida & Sons Trucking Co., 675 F. Supp. 1391 (E.D.N.Y. 1987); Eckard v. Johnson, 70 S.E.2d 488 (N.C. 1952).
        The plaintiffs rely on Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973) in support of their argument that tractor trailers create an unreasonable risk of harm to others. Griffith, though, is not entirely apposite to the certified question before us. In Griffith, the Court stated that the operation of tractor-trailers on our public highways creates an "unreasonable risk of harm to others." Griffith, 157 W. Va. at 323, 201 S.E.2d at 286. However, we held that "[o]ne who carries on an activity which requires a franchise from a public authority and involves an unreasonable risk of harm to others[] is subject to liability for physical harm caused to others by the negligence of a contractor employed to perform the franchise activity." Syllabus Point 2, Griffith, 157 W. Va. 316, 210 S.E.2d 281. The certified question as presented to us does not address the issue of the ownership of a franchise by Lens Creek, and the performance of that franchise activity by an independent contractor. We decline to expand the certified question to facts that are not before us and answer this certified question in the negative.

        For the foregoing reasons, we find that the financial resources and liability insurance of an independent contractor are of no significance in the determination of whether an independent contractor is competent and careful for purposes of a negligent hiring theory of recovery. We agree with the circuit court that the operation of an empty logging truck on the public highways of this state is not so inherently dangerous so that liability will be imposed upon the principal who retains the independent contractor. The certified questions having been answered, this case is dismissed from the docket.