Taylor v. Wachter

NOT DESIGNATED FOR PUBLICATION
No. 124,107
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
SUSAN TAYLOR,
Appellant,
v.
WILLIAM WACHTER,
as Special Administrator for the
ESTATE OF JOAN EILEEN WARNER
HOUGH,
Appellee.
MEMORANDUM OPINION
Appeal from Montgomery District Court; JEFFREY GETTLER, judge. Opinion filed May 20, 2022.
Affirmed.
Angela Spigarelli and Fred Spigarelli, of The Spigarelli Law Firm, of Pittsburg, for appellant.
Richard P. Billings and Craig C. Blumreich, of Larson & Blumreich, Chartered, of Topeka, for
appellee.
Before POWELL, P.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: In 2010, Susan Taylor fell from a trailer while vaccinating and
deworming Joan Eileen Warner Hough's horses. The fall resulted in a severe right leg
injury, and Taylor sued Hough, alleging negligence. Eventually, the district court granted
Hough's motion for summary judgment, finding that no genuine issues of material fact
existed. The district court rejected Taylor's claim that Hough failed to exercise reasonable
care under all the circumstances by failing to maintain a safe and secure facility or
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method used to vaccinate and deworm the horses because Taylor engaged in an activity
with obvious dangers, and the alleged defects on Hough's property did not contribute to
her fall from the trailer. The district court also deemed Taylor an independent contractor
under the circumstances and concluded Hough had no duty to provide a safe working
environment. The district court also rejected Taylor's second negligence claim regarding
Hough's alleged failure to warn her about the wild nature of the horses, finding that
Taylor had previous experience dealing with wild horses and observed the apparent wild
nature of the horses before voluntarily engaging in the activity that led to her injury.
Finally, the district court found that Taylor's claims were barred by the Domestic Animal
Activity Doctrine. See K.S.A. 60-4001 et seq.
Taylor appeals, arguing the district court erred by granting summary judgment.
We affirm the district court's grant of Hough's motion for summary judgment because
there are no material factual disputes, and the district court correctly determined Taylor
could not recover under her alleged theories of negligence.
FACTS
In 2010, Joan Eileen Warner Hough owned two farms and a veterinary clinic. She
lived on one of her farms located outside the city limits of Coffeyville, approximately 12
miles away from her veterinary clinic. At the veterinary clinic, Hough served as the only
veterinarian but hired one or two other employees to assist her around the office. As a
veterinarian, she dealt almost exclusively with smaller animals, such as dogs, cats, and a
few exotic animals. But on her personal farm, she raised horses as a personal hobby and
had done so for many decades. Hough believed she had approximately 29 horses in 2010.
Those horses were not part of her veterinary practice.
By May 2010, Susan Taylor had worked as a part-time veterinary assistant in
Hough's veterinary clinic for approximately three months. While employed there, she
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answered the telephone, received patients, checked patients out, and generally assisted
Hough around the clinic. Her job duties never required her to leave the veterinary clinic.
As such, she had never been to Hough's residence, though her husband had been there a
few times to assist Hough in taking care of Hough's horses.
Hough said she asked Taylor and her husband to come to her house because she
learned through conversations at the clinic that Taylor and her husband had their own
horses and had a lot of experience dealing with horses. Like Taylor, Hough said only
Taylor's husband went to her house the first few times to assist with the horses. But on
May 2, 2010, both Taylor and her husband went to Hough's residence to assist with
vaccinating and deworming Hough's horses. Though she did not want to go, Taylor said
Hough repeatedly asked her to do so, and Taylor felt she would lose her job if she did not
go. Taylor's husband never mentioned anything about Taylor getting fired, but he said he
could tell Taylor did not want to go to Hough's residence on May 2, 2010. However,
Taylor acknowledged that Hough never threatened to fire her if she did not go. Taylor
also acknowledged that she did not go to Hough's residence in her capacity as Hough's
veterinary assistant.
Before going to Hough's residence, Taylor never asked Hough anything about the
horses they would be interacting with. Taylor did not know how many horses needed
vaccinating or the demeanor of the horses. Even so, Taylor did not have any concerns
about her physical ability to perform the work because she had worked with horses—
including vaccinating and deworming them—for over 30 years. During that span of time,
Taylor at all times owned between one and five horses. Similarly, her husband had
extensive experience with horses, including vaccinating and deworming them.
When Taylor and her husband arrived at Hough's residence on May 2, 2010, the
first thing they did was go behind Hough's house and inspect the area where they would
be working. Taylor said her husband had concerns about the condition of the fences in the
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pen where the horses were being contained. He also had concerns about the lack of a
squeeze chute on that portion of the property, but he knew Hough had a squeeze chute on
a different portion of the property. A squeeze chute is a device used to control an animal's
head and sides to ensure the horse will not strike with its feet or kick someone while the
person is performing the vaccination and deworming procedure. Initially, there were 10
to 20 horses in the pen.
Hough would prepare the shots and hand them to Taylor, who would then give
them to her husband so he could vaccinate and deworm the horses. When vaccinating the
horses, Taylor or her husband would put a syringe in the horses' necks and inject the
medicine. Similarly, to deworm the horses, they placed a paste wormer, which looked
like a syringe, inside the horses' mouths and shot the medicine inside so the horses would
swallow it. The vaccines were administered before the deworming medicine.
For the first batch of horses, Taylor's husband went inside the pen and placed
halters on the horses' heads to be able to control their head movements. The halter had a
lead rope attached, which was analogous to a dog leash and allowed Taylor's husband to
lead the horses to a horse trailer attached to Hough's pickup truck after administering the
medicine. All the horses did not fit inside the trailer, so Taylor and her husband took four
horses at a time. They then drove the trailer to a different portion of the property where
they turned the horses loose in the pasture. In total, Taylor estimated this process took
about four hours. They had no problems with the first batch of horses.
After unloading the last trailer of the first batch of horses, Taylor and her husband
returned to the pen, and Taylor thought they were done for the day. However, Hough then
called between 10 to 20 more horses into the pen. Taylor could immediately tell that this
batch of horses was much more nervous and wilder than the first batch. She knew the
second batch had not had much human contact, which concerned her. Similarly, her
husband also noticed the second batch of horses seemed rowdier than the first and did not
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appear to have had much human contact. According to Taylor, her husband then told
Hough they needed to take a break, finish the process on a different day, or move to the
area of the property with the squeeze chute. But Hough told them she wanted them to
finish all the horses that day and did not want to move to a different area of the property.
Hough could not recall this conversation, but she said she would never have put
any of the horses inside the squeeze chute because the one she had was made for cattle.
She said the cattle squeeze chute was too small, too short, and not wide enough to fit the
horses, and she did not want to risk getting the horses injured by putting them in that type
of chute. She said she had never put any of her horses inside the squeeze cute when they
got vaccinated and dewormed.
At that point Taylor's husband devised an alternative plan to vaccinate and
deworm the second batch of horses. His plan involved loading the horses into the trailer.
The trailer measured approximately 16 feet long and could fit 4 horses inside at a time.
The trailer also had a divider on the inside, and two horses stood on each side of the
divider. After loading the first four horses, they closed the trailer's back door. In theory,
this placement of the horses inside the trailer allowed their movements to be restricted,
which would make them easier to handle. Taylor's husband then used rope to secure the
horses' heads against the side of the trailer. After he secured the rope, Taylor would stand
on the trailer's running boards/fenders and vaccinate and deworm the horses. Once again,
Hough prepared the shots and handed them to Taylor. The trailer had fenders on both
sides. The width of the fenders on which Taylor stood measured a little less than a foot.
Taylor, who wore size five or six shoes, said her feet fit comfortably on the fenders. The
fenders were approximately 3 feet off the ground.
Taylor's husband said he had used this method to vaccinate and deworm horses
"100,000 times" and found it to be a normal and safe way to do it. When he previously
used this method, he said someone always stood on the fenders to administer the
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vaccinations and deworming medicine. Taylor also said she had used this process once or
twice before. But when she had previously used this process, the horses were not as wild
as this second batch of Hough's horses.
On this occasion, Taylor started with the two horses facing the driver's side of the
trailer and did not have any problems with those horses. She then moved to the
passenger's side to vaccinate and deworm the horses near the back of the trailer. Again,
she waited for her husband to secure the rope around the horses' necks before she climbed
on the fender. She had no problem with the horse closest to the back of the trailer. When
her husband secured the rope on the only remaining horse, Taylor did not notice any
problems. But when she got back on the fender, the horse started breathing heavily
through its nose and shuffling its feet but did not exhibit other signs of distress. Taylor
then administered the vaccine and tried to calm the horse. But when she got ready to
administer the deworming medicine, the horse started rearing, backing its head away
from her, and slamming the side of the trailer. Taylor's husband tried to retain control of
the horse with the rope, but he could not completely restrict its movements. Taylor, who
was holding onto the roof of the trailer, started working her way down from the fender
but lost her grip and fell to the ground.
Taylor landed on her right leg and immediately noticed that it had been broken.
Taylor's husband then told Hough to call 911, which she did. A short while later, an
ambulance arrived. The emergency responders then transported Taylor to the hospital,
where doctors diagnosed her with an "impacted right knee lateral tibia plateau fracture
and right tibia shaft commuted fracture." Simply put, Taylor had a serious leg injury and
later underwent an "open reduction and internal fixation surgery on her right leg."
Taylor indicated that the trailer did not have any defects and was in good working
condition. She said she did not slip. Instead, the horse caused her to lose her balance. She
agreed there was nothing dangerous about the trailer itself. Taylor's husband echoed these
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statements. He described the trailer as fairly new and said the fender on which Taylor
stood was not slippery.
Taylor later acknowledged the inherent risks involved in dealing with horses. She
said she knew they were unpredictable animals, and how they act can depend largely on
how much time they spend around people. Hough said a horse's demeanor is apparent to
people who have spent time around horses. She said it would only take a few minutes to
know if a horse had been halter broken by the way the horse acted around people. Hough
said that on the date of Taylor's injury, everyone knew of the wilder nature of the second
batch of horses.
Despite this, Taylor she said she would not have gone to Hough's residence to
assist with vaccinating and deworming the horses had she known how wild the second
batch of horses was. Taylor said that she and her husband stayed because they worried
Hough would try to perform the work herself and end up getting hurt. But Taylor
acknowledged that nothing prevented her and her husband from leaving the property after
observing the wilder nature of the second batch of horses. Hough also confirmed that
Taylor and her husband were free to leave the property at any time.
In April 2012, Taylor filed suit against Hough, alleging negligence. The following
June, Hough filed her answer and denied Taylor's allegations. From September 2012
through January 2017, the district court entered numerous case management orders as the
case failed to progress.
In May 2017, Taylor testified in a deposition about what occurred on the day of
her injury. In September 2017, both Taylor's husband and Hough testified in their own
depositions. Those depositions formed the basis for the facts recounted above.
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In October 2017, Hough filed a motion for summary judgment. Taylor filed her
response to the motion in December 2017. Later the same month, Hough filed her reply.
In July 2018, the district court held a hearing on Hough's motion for summary judgment
and ultimately took the matter under advisement. In July 2020, the district court granted
Taylor's motion for leave to amend her petition and substitute William Wachter as
Special Administrator to Hough's estate because Hough had passed away.
In May 2021, the district court announced its ruling from the bench. The district
court began by reciting the legal standard for regarding motions for summary judgment
before finding that no genuine issues of material fact existed. The district court then
summarized the uncontroverted facts of the case. The district court found that Taylor had
more than 30 years of experience working with horses prior to her injury, including
vaccinating and deworming them. Based on that experience, Taylor knew horses could be
unpredictable, and she had experience dealing with horses that had gotten scared or
otherwise acted abnormally when they were being vaccinated.
The district court also found that Taylor and her husband agreed to go to Hough's
residence to vaccinate and deworm the horses. The court concluded that Taylor did not
go to Hough's residence in her capacity as Hough's veterinary assistant and deemed
Taylor's subjective belief she would be fired if she did not go to Hough's residence to be
immaterial.
Taylor also noticed the second group of horses were wilder than the first after
observing them. After recognizing this, nothing prevented Taylor from refusing to do the
work or leaving Hough's property. Instead, Taylor chose to stay and follow the method
her husband formulated for vaccinating and deworming the horses, and he had used this
method previously on multiple occasions. Hough never exercised control over the method
by which Taylor and her husband administered the medicines; Hough only prepared the
medication and handed it to Taylor or her husband.
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The district court concluded the injury occurred after Taylor stuck a needle in one
of the horse's necks and lost her footing after the horse hit the side of the trailer. The
trailer did not cause the injury because it was in good condition and the fenders were not
slippery. Taylor also understood the inherent risk in working with horses, especially ones
that had not been handled much. Similarly, Taylor understood the risk of working on the
trailer's fenders but made the choice to do so.
The district court then summarized some of the disputed facts it found to be
immaterial. These facts include Taylor having no advance knowledge about the horses'
demeanors, and Taylor not knowing how many horses needed to be vaccinated and
dewormed. The district court also found Taylor's allegations concerning the used pipes,
bent wires, gates dragging on the ground, and things not being sufficiently welded on
Hough's property to be immaterial because Taylor did not allege any of those conditions
caused her injury. Finally, the district court found Taylor's statement that she would not
have gone to Hough's property if she had known the horses were wild to be immaterial
because Taylor observed the wild nature of the horses prior to working with them.
Next, the district court moved to Taylor's two claims of negligence against Hough.
The district court rejected Taylor's claim that Hough failed to exercise reasonable care
under all the circumstances by failing to maintain a safe and secure facility or method
used to vaccinate and deworm the horses because Taylor engaged in an activity with
obvious dangers, and the alleged defects on Hough's property did not contribute to her
fall from the trailer. The district court also deemed Taylor an independent contractor
under the circumstances and concluded Hough had no duty to provide a safe working
environment.
The district court also rejected Taylor's second negligence claim regarding
Hough's alleged failure to warn her about the wild nature of the second batch of horses.
The district court found that Taylor had previous experience dealing with wild horses and
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observed the apparent wild nature of the second batch of horses. As such, she knew of the
wild nature of those horses before voluntarily engaging in the activity that led to her
injury. The district court also found that the trailer had no defects, and Taylor knew of the
dangers of climbing on the trailer. Additionally, the district court found that nothing
prevented Taylor from leaving Hough's property. Based on these findings, the district
court concluded that Hough had no duty to warn Taylor of a known and obvious danger.
Separately, the district court also concluded that Taylor's claims against Hough
were barred by the Domestic Animal Activity Doctrine because she assumed the risks
associated with vaccinating and deworming the horses and none of the exceptions to the
doctrine applied to her case. For these reasons, the district court granted Hough's motion
for summary judgment.
Taylor has timely appealed from the district court's decision.
ANALYSIS
On appeal, Taylor contends the district court erred by granting Hough's motion for
summary judgment. The standards for deciding summary judgment motions are well
known:
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genuine issue
exists as to any material fact and the moving party is entitled to judgment as a matter of
law. The district court must resolve all facts and reasonable inferences drawn from the
evidence in favor of the party against whom the ruling is sought. When opposing
summary judgment, a party must produce evidence to establish a dispute as to a material
fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issue in the case. Appellate courts apply the same rules and,
where they find reasonable minds could differ as to the conclusions drawn from the
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evidence, summary judgment is inappropriate. Appellate review of the legal effect of
undisputed facts is de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310
Kan. 976, 981-82, 453 P.3d 304 (2019).
In the negligence context, our Supreme Court has also stated:
"It is also important to remember that '"'summary judgment should not be used to
prevent the necessary examination of conflicting testimony and credibility in the crucible
of a trial.'"' In a negligence action, '"'summary judgment is proper if the only questions
presented are questions of law. To recover for negligence, the plaintiff must prove the
existence of a duty, breach of that duty, injury, and a causal connection between the duty
breached and the injury suffered. Whether a duty exists is a question of law. Whether the
duty has been breached is a question of fact.'"' Although summary judgment is rarely
appropriate in negligence cases, 'it is proper if the plaintiff fails to provide evidence of an
element essential to his case.' [Citations omitted.]" Thomas v. Board of Shawnee County
Comm'rs, 293 Kan. 208, 220-21, 262 P.3d 336 (2011).
As we have noted, Taylor brought two negligence claims against Hough. First, she
claimed Hough failed to provide adequate facilities to vaccinate and deworm the horses.
Second, she claimed Hough failed to warn "of a dangerous condition on the property and
in directing [Taylor] to perform a dangerous activity on her premises." We will address
both of those arguments.
Failure to warn of a dangerous condition on the property
The district court rejected this claim because it found that Taylor had previous
experience dealing with wild horses and observed the apparent wild nature of the second
batch of horses to be vaccinated and dewormed. Thus, she knew of the wild nature of
those horses before voluntarily engaging in the activity that led to her injury.
Additionally, the district court found the trailer had no defects, and Taylor knew of the
dangers of climbing on the trailer. And the district court also found that nothing
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prevented Taylor from leaving Hough's property after she became aware of the dangers.
Under these circumstances, the district court concluded that Hough had no duty to warn
Taylor of a known and obvious danger.
In Kansas, "[a] landowner's duty to both invitees and licensees is one of
reasonable care under all the circumstances." Wrinkle v. Norman, 297 Kan. 420, 422, 301
P.3d 312 (2013) (citing Jones v. Hansen, 254 Kan. 499, Syl. ¶ 2, 867 P.2d 303 [1994]).
"This duty includes a duty to warn of a dangerous condition on the property." Herrell v.
National Beef Packing Co., 292 Kan. 730, 736, 259 P.3d 663 (2011). The duty is also not
limited to physical defects on the land. A landowner can be subject to liability if an
invitee suffers physical harm caused by the landowner's failure to carry on his or her
activities with reasonable care for the invitees' safety "'if, but only if, [the landowner]
should expect that [the invitee] will not discover or realize the danger, or will fail to
protect themselves against it.'" Walters v. St. Francis Hosp. & Med. Center, Inc., 23 Kan.
App. 2d 595, 598, 932 P.2d 1041 (1997) (quoting Restatement [Second] of Torts § 341A
[1964]).
However, a landowner does not have a duty to warn of known and obvious
dangers. Tillotson v. Abbott, 205 Kan. 706, 711, 472 P.2d 240 (1970); see Wellhausen v.
University of Kansas, 40 Kan. App. 2d 102, 105-06, 189 P.3d 1181 (2008). Courts utilize
an objective test when determining whether a danger is known and obvious. Wellhausen,
40 Kan. App. 2d at 106 (citing Restatement [Second] of Torts § 343A, comment b
[1964]).
Taylor argues the wild nature of the second batch of horses constituted the
dangerous condition on Hough's property. In response, Hough contends Taylor's
knowledge or lack thereof concerning the demeanor of the horses is immaterial because
Taylor had the opportunity to observe the demeanor of the horses prior to attempting to
vaccinate and deworm them. Hough also contends the trailer used had no defects and the
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risks of climbing on the trailer and attempting to vaccinate and deworm the horses were
obvious.
Under an objective standard, we concur with the district court that a reasonable
person would know that attempting to administer medication to wild horses constitutes a
known and obvious danger. Also, a reasonable person would understand that standing on
the fenders of a trailer while attempting to do so compounds the obvious dangers
associated with the task.
Additionally, Taylor knew of these dangers personally. In her deposition, she
acknowledged the dangers associated with horses, generally, and vaccinating and
deworming them, specifically. Even in the first batch of horses, which she contends were
less wild, she said they appeared nervous, and one of the horses climbed out of the pen
where they were contained. When she observed the second batch of horses, she knew
immediately they appeared to be wilder than the first batch. These observations were
made before she attempted to administer the vaccines and deworming medicine to the
second batch. And she, like a reasonable person would, knew that horses which had not
been handled much presented an even greater danger.
Failure to provide adequate facilities
Taylor also claimed Hough failed to provide adequate facilities to vaccinate the
horses. The district court rejected this claim of negligence for two reasons: (1) Hough
owed Taylor no duty to provide a safe working environment because no duty is owed to
an independent contractor; and (2) Taylor did not allege the defects on Hough's property
contributed to her fall from the trailer.
In Brillhart v. Scheier, 243 Kan. 591, 593-94, 758 P.2d 219 (1988), our Supreme
Court explained that, if an employer/employee relationship exists between two people,
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landowners can be held liable under the doctrine of respondeat superior for the
negligence of the person working on their land, but landowners generally are not liable to
independent contractors who sustain injuries caused by negligence. The difference in
liability can largely be explained by the degree of control exerted over the worker. In the
respondeat superior context, the employer is liable for the actions of an employee because
the employer exerts control over—and maintains responsibility for—the actions of the
employee. 243 Kan. at 593. But an independent contractor "represents the will of his
employer only in the result, and not as to the means in which it is accomplished. Thus,
one who hires such an individual is not liable for that party's negligence. [Citations
omitted.]" 243 Kan. at 594.
Typically, the determination of whether a worker is an independent contractor or
an employee is a factual question to be determined by the jury or trier of facts. But a
court can decide the issue, as a question of law, where the evidence is only susceptible to
a single conclusion or the facts are undisputed. McCubbin v. Walker, 256 Kan. 276, 281,
886 P.2d 790 (1994) (quoting Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 [1991]). In
McCubbin, our Supreme Court recognized that there is no precise definition of an
independent contractor that can be applied in all situations, and each case must be
determined based on its own facts. 256 Kan. at 280-81. But, in general terms, our
Supreme Court has defined an independent contractor as "'one who, in exercising an
independent employment, contracts to do certain work according to his own methods,
without being subject to the control of his employer, except as to the results or product of
his work.'" 256 Kan. at 280 (quoting Falls, 249 Kan. at 64). Put differently:
"'The primary test used by the courts in determining whether the employer-
employee relationship exists is whether the employer has the right of control and
supervision over the work of the alleged employee, and the right to direct the manner in
which the work is to be performed, as well as the result which is to be accomplished. It is
not the actual interference or exercise of the control by the employer, but the existence of
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the right or authority to interfere or control, which renders one a servant rather than an
independent contractor. [Citation omitted.]'" 256 Kan. at 281.
Additionally, our Supreme Court in McCubbin stated that "[t]he single most
important factor in determining a worker's status as an employee or independent
contractor is whether the employer controls, or has the right to control, the manner and
methods of the worker in doing the particular task." 256 Kan. at 281.
Here, Taylor's husband, not Hough, devised the method by which he and Taylor
would vaccinate and deworm the horses. During his deposition, Taylor's husband testified
that, after telling Hough how he planned to vaccinate and deworm the horses, she
responded by telling him, "'You do whatever you think you need to do.'" Additionally,
Taylor specifically stated she did not go to Hough's residence the day she got hurt in her
capacity as Hough's assistant at the veterinary clinic, and both her and her husband
acknowledged they could have left Hough's property at any time.
Taylor does not dispute that her husband devised the method they used to
vaccinate and deworm the horses. In fact, she does not dispute the district court's
conclusion that she met the definition of an independent contractor. Instead, she seems to
concede the point but argue that her status as an independent contractor does not preclude
recovery. As such, we could normally conclude she has waived any argument to the
contrary. See In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018)
(issues not briefed are deemed waived or abandoned).
But under our caselaw there are other factors to consider. In McCubbin, our
Supreme Court stated there are other "well-recognized and fairly typical indicia of the
status of an independent contractor," including:
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"'the existence of a contract for the performance by a person of a certain piece or kind of
work at a fixed price, the independent nature of his business or his distinct calling, his
employment of assistants with the right to supervise their activities, his obligation to
furnish necessary tools, supplies, and materials, his right to control the progress of the
work except as to final results, the time for which the workman is employed, the method
of payment, whether by time or by job, and whether the work is part of the regular
business of the employer.' [Citation omitted.]" 256 Kan. at 281.
Here, there did not seem to be much discussion concerning payment for
completing the work. Taylor said that Hough had paid her husband when he completed
work in the past, but Hough did not pay him the day she got injured. Taylor's husband
expected to be paid, but he said he had not discussed how much he would be paid. Hough
said she had paid some of the people who vaccinated and dewormed the horses, but she
also said some people volunteered to do the work and did not ask to be paid. She had
previously given one of the workers who did not want to be paid free horse medicine in
exchange for performing the work. But regarding Taylor and her husband the day Taylor
injured her leg, Hough said, "'I'm sure he knew that I would pay them. But no fee was
scheduled or talked about.'"
Moreover, Hough provided the vaccinations and deworming medicine
administered to the horses. She also owned the trailer. But Taylor's husband provided the
halter used on the first batch of horses. It is not clear who owned the rope used on the
second batch of horses, and it does not appear any other tools or materials were used that
day.
Taylor focuses her argument on this issue on the district court's second reason for
rejecting her claim—that she did not allege the defects on Hough's property contributed
to her fall from the trailer. But even if she did make those allegations, the district court
was correct when it concluded the alleged defects did not cause Hough to fall and injure
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her leg. And we agree with the district court that the alleged factual disputes regarding
the condition of the fences and gates on Hough's property are not material to the issue.
At most, the alleged defects on Hough's property contributed to the decision to use
Hough's trailer to vaccinate and deworm the horses. But the decision to use the trailer
came after Taylor had the opportunity to observe and assess the demeanor of the second
batch of horses. Taylor's argument that she did not feel like she could stop doing the work
is also unconvincing because she acknowledged that she did not go to Hough's property
in the capacity of Hough's assistant, and both she and her husband acknowledged they
could have left Hough's property at any time.
In sum, we agree with the district court's analysis that Hough had no duty to warn
Taylor of what were objectively open and obvious dangers in the task of vaccinating and
deworming wild horses. Given Taylor's own knowledge of horses in general and her
husband's extensive past experience with horses of all types, it is reasonable to conclude
that she assumed the inherent risk of assisting in vaccinating and deworming the horses.
This is particularly true given the impromptu use of Hough's trailer in the manner devised
by Taylor's husband, which likely heightened the risk of Taylor being injured. This latter
fact also lends credence to the district court's conclusion that Taylor's role on the date of
the accident was more akin to that of an independent contractor than an employee of
Hough, since Taylor was acting completely outside her duties as an assistant at Hough's
veterinary practice. Hough had not dictated the manner in which the vaccinating and
deworming of the wild horses was to be accomplished; instead, Hough acceded to the
task being accomplished in the manner proposed by Taylor's husband.
Likewise, we concur with the district court's conclusion that there was no
condition on the property owned by Hough which supports a claim of negligence leading
to Taylor's injury. The district court properly determined that Taylor had not
demonstrated that any disrepair to fences, gates, and other aspects of the land were
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material factors leading to the injuries she suffered. Likewise, Taylor conceded that there
was no aspect of the horse trailer's condition that posed a hazardous aspect in carrying out
the vaccinations and deworming.
The district court did not err in granting summary judgment against Taylor on
Hough's first theory of defense. In light of our conclusion on this issue, we find it
unnecessary to reach Taylor's appeal of the district court's grant of summary judgment on
Hough's second contention, that Taylor's claims are barred by the Domestic Animal
Activity Doctrine.
Affirmed.
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