Dennis G. Ek Cheryl A. Ek Dennis C. Ek v. Stanley Dean Herrington, and David Hill Dick Woodbury

The heirs of Marjorie A. Ek appeal the district court’s entry of summary judgment against them in their wrongful death action against the alleged tortfeasor’s employer. 738 F.Supp. 357 . The alleged tortfeasor was an independent contractor. The district court had diversity jurisdiction, 28 U.S.C. § 1332 , and the timely appeal is taken from a final order, 28 U.S.C. § 1291 . Idaho law controls. We affirm.

BACKGROUND

Defendant David Hill, who owns a logging operation in Idaho, hired Herrington as an independent contractor to haul logs from a place of logging to two mills. While en route to one of the mills in May 1988, carrying a load that was at least 10,000 pounds overweight, Herrington’s truck drifted across the centerline as it gained speed at the bottom of a hill. The logs broke loose from the truck and landed on the Ek’s vehicle, resulting in Mrs. Ek’s death. All of Herrington’s brakes were out of adjustment at the time.

The district court granted summary judgment in favor of Hill, holding that Ek was not in the class of persons (employees) protected by the Idaho Minimum Safety Standards and Practices for Logging (“Standards”) promulgated by the Idaho Industrial Commission,…