RIGHT OF CONTROL FOR PURPOSE OF RESPONDEAT SUPERIOR LIABILITY
Under the doctrine of respondeat
superior, an employer may be vicariously liable for the negligence of its agent
or employee who was acting within the scope of employment even though the
employer did not personally commit a wrong. See St. Joseph Hosp. v. Wolff, 94
S.W.3d 513, 541-42 (Tex. 2002).
But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The right of control is the "supreme test" for determining whether a master-servant relationship exists. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996).
In determining whether a worker is an employee or independent contractor, the focus is on who had the right to control the details of the work. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.-Fort Worth 2009, pet. denied).
But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The right of control is the "supreme test" for determining whether a master-servant relationship exists. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996).
In determining whether a worker is an employee or independent contractor, the focus is on who had the right to control the details of the work. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.-Fort Worth 2009, pet. denied).
We may consider several factors in
determining the extent of the right of control: (1) the independent nature of
the person's business; (2) the person's obligation to furnish necessary tools,
supplies, and material to perform the job; (3) the right to control progress of
the work, except as to final results; (4) the time for which the person is
employed; and (5) the method of payment, whether by time or by the job. See
Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584-85 (Tex. 2005). However, to
trigger vicarious liability, the right to control must extend to the specific
activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284
S.W.3d at 911-12; Ely v. Gen. Motors Corp., 927 S.W.2d 774, 778 (Tex.
App.-Texarkana 1996, writ denied).
A contract expressly providing that a
person is an independent contractor is determinative of the relationship absent
evidence that the contract is a mere sham or subterfuge designed to conceal the
true legal status of the parties or that the contract has been modified by a subsequent
agreement between the parties. See Bell v. VPSI, Inc., 205 S.W.3d 706, 713
(Tex. App.-Fort Worth 2006, no pet.); Id. (citing Newspapers, Inc. v. Love, 380
S.W.2d 582, 588-90 (Tex. 1964)). Evidence that the parties did not intend for
an independent contractor relationship can come from the contract itself or
from extrinsic evidence. See Farlow, 284 S.W.3d at 911.
The right to control is ordinarily a
question of fact, but whether a contract gives a right to control is generally
a question of law. See id. at 912
SOURCE: DALLAS COURT OF APPEALS -
05-10-00724-CV – 2/21/2013
Here, like in the Ely decision, the
"activity" causing appellants' injuries was the test drive. See Ely,
927 S.W.2d at 778-79. See also Victoria Electric Cooperative, Inc. v. Williams,
100 S.W.3d 323, 327 (Tex. App.-San Antonio 2002, pet. denied). As we have
already noted, to trigger vicarious liability, the right to control must extend
to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23;
Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. The referenced sections
of the Center Agreement, however, provide no evidence of BMW NA's control of
the test drive. Having determined the Center Agreement did not provide an
agency relationship, we turn to appellants' argument that extrinsic evidence
demonstrates BMW NA's agency relationship with Classic BMW and Homer. See
Farlow, 284 S.W.3d at 911 (evidence parties did not intend an independent
contractor relationship can come from extrinsic evidence).
In their brief, appellants assert that
"[i]t is undisputed that [BMW NA] required salesmen like Homer to submit
to its training and that it controlled how many of [Classic BMW's] salesmen
were trained in particular areas or subjects." However, merely making
recommendations is no evidence of a right of control. See Shell Oil Co. v.
Khan, 138 S.W.3d 288, 294 (Tex. 2004). Furthermore, although BMW NA required
Classic BMW to train its salespeople, the evidence, similar to that in the Ely
case, establishes BMW NA was not responsible for hiring, training, and
supervising Homer. See Ely, 927 S.W.2d at 778. Rather, Classic BMW's management
team was responsible. In addition, the evidence before us shows BMW NA was not
involved in the test drive, the injury-producing event. See Victoria Electric
Co., 100 S.W.3d at 327.
Still, in an effort to demonstrate BMW
NA's control, appellants refer us to evidence that BMW NA representatives would
visit Classic BMW, select a topic for the visits, and then require Classic
BMW's employees to sit down with him and evaluate its performance with relation
to that topic. Our review of the record shows Smerek testified that examples of
such topics included: customer satisfaction, sales, market share, service,
service sales, warranty, warranty indexes, parts sales, and wholesale parts
sales. Appellants also argue control was asserted through these visits when the
representative reviewed Classic BMW's records to ensure it was in compliance
with BMW NA's requirements under the Center Agreement. However, again, the
evidence cited by appellants fails to establish BMW NA's control related to the
injury-producing activity itself. See id.
Rather, the evidence shows that: (1)
Classic BMW is an independently owned dealership that is not and has never been
owned by BMW NA and (2) BMW NA did not play any role in the hiring of Homer, in
training Homer on how to conduct test drives, or in supervising Homer's
activities at Classic BMW. Thus, appellants have provided no summary judgment
evidence that BMW NA had the right to control Homer or Classic BMW during the act
resulting in appellants' injuries, namely the test drive. See Exxon, 867 S.W.2d
at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. Because BMW NA has
established the absence of an essential element of appellants' vicarious
liability cause of action based on an agency relationship, BMW NA was entitled
to summary judgment. See Ely, 927 S.W.2d at 779. We overrule appellants' second
issue.
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