dissenting:
I cannot agree that Hayden, simply a delivery person, was Kroger’s statutory employee. Burroughs is directly on point. The Burroughs court, contrary to the majority’s assertion, did not merely hold that “a delivery person is not engaged in the construction business”; it held that persons who “function solely as suppliers and deliverers of goods” are never barred from bringing a tort action against the purchasers of those goods. Burroughs, 168 S.E.2d at 108-09.
The deliveryman in Burroughs not only had to deliver sheetrock to various homes at the subdivision construction site, but was also required to enter the individual homes and place specified amounts of sheetrock in designated rooms. Nevertheless, the Burroughs court held that the acts required to be performed by the deliveryman did not “transcend” delivery. The deliveryman’s conformance to the contractor’s delivery specifications was but “the final act of delivery, not an act of construction,” and therefore the deliveryman was not engaged in the contractor’s “trade, business or occupation.” Id.
The clear lesson of Burroughs, ignored by the majority, is that a delivery person’s conformance to a purchaser’s rigid delivery specifications does not transform the deliverer into the purchaser’s employee, so long as the deliverer does not transcend the final act of delivery. Hayden merely unloaded his truck and made a delivery; he did nothing that could arguably be construed as transcending that delivery.
Conlin does not support the majority’s position. The plaintiff in Conlin was a Ford *78employee who was injured while she was loading the defendant’s truck with parts and machinery to be transported to another Ford plant. Based on those unique facts, the Con-lin court held such transportation to be an “essential element” of Ford’s trade, business or occupation. Conlin, 331 S.E.2d at 453. In fact, the court in Conlin was careful to distinguish Burroughs on the basis that Burroughs involved a “mere delivery.” Id. at 455-56.
We face nothing more than a mere delivery in this case. The majority cannot credibly argue that Hayden’s delivery — or all deliveries — are “essential elements” of Kroger’s business inasmuch as the Supreme Court of Virginia has already decided the issue in the negative. “The gathering of material is of course essential to the construction of a building. So in a sense each supplier of material is engaged in the general contractor’s trade, business or occupation. But a line must be drawn-” Burroughs, 168 S.E.2d at 108. The Supreme Court of Virginia has drawn that line, and it does not favor Kroger. Kroger’s business is not the delivery of goods, but the selling of them.
I respectfully dissent.