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Buitrago v. Rohr, 672 So. 2d 646 |
Fla. Dist. Ct. App. |
1996 |
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Chapter |
13 |
Title |
Vicarious Liability |
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Page |
538 |
Topic |
Employer-Employee Relationship |
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Quick Notes |
10 Rules for determining an independent contractor |
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Issue |
o Whether an employer is liable for the acts of an independent contractor? No. |
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Procedure |
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Trial |
o Trial court granted Donovans motion for summary judgment, because Rohr was an independent contractor. o Plaintiff appeals |
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Appellant |
o Affirmed in favor of the Df - because he was an independent contractor. |
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Facts |
Reason |
Rules |
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o Pl - Buitrago o Df - Rohr What happened? o Chuck Rohr hired by Blockbuster to put up hot air balloon. o He takes it down, drives home, and crashes into causes 1 death and 2 severe injuries. o Pl - named Donovan Entertainment as a Df on the theory that Rohr was acting as Donovans agent at the time of accident. o Trial court granted Donovans motion for summary judgment, because Rohr was an independent contractor. o Plaintiff appeals |
Employee Status and the Restatement of Agency
General Rule o The principal who retains the independent contractor is not generally liable for the acts of the independent contractor as they are with an employee. o The principal that pays the independent contractor would not be liable for the tortious activities of an independent contractor.
Rule: 10 factor test for deter whether employ or independent contractor 1. The extent of control which, by agree, the master may exercise over the details of the work (MOST SIGNIFICANT!!!) o The ability of control. Does the principal retain the right to control. 2. Whether the one employed is engaged in a distinct occupation or business 3. The kind of occupation, with reference to whether, in this locality, the work is usually done under the direction of the employer or by a specialist w/o supervision. 4. The skill required in the particular occupation 5. Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work 6. The length of time for which the person is employed 7. The method of payment, whether it is by time or job o Time would be an hourly wage. o Job paid by the job. 8. Whether the work is part of regular business of employer 9. Whether the parties believe they are creating the relation of master and servant o See if there is an employment contract. 10. Whether the principal is or is not in business o If the principal is in business, then the person is more likely an employee.
The Pl does not have to satisfy all the requirements. If reasonable people disagree then it will go to the jury.
First Factor o Donovan only told Rohr were the balloons should be displayed.
Second Factor o Rohr was incorporated and had numerous other clients. o Rohr was engaged in an entirely different business that Donovan.
Movant of Summary Judgment o Has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. o Saves Donovan the expense of going through a trial.
Affirmed |
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Class Notes |
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General Rule o The principal who retains the independent contractor is not generally liable for the acts of the independent contractor as they are with an employee. o The principal that pays the independent contractor would not be liable for the tortious activities of an independent contractor.
The Control theory does not apply, because Blockbuster does not tell Rohr how to do the work.
Servant vs. Independent Contractor Consideration o (a) the extent of control which, by the agreement, the master may exercise over the details of the work;
o (b) whether or not the one employed is engaged in a distinct occupation or business;
o (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
o (d) the skill required in the particular occupation;
o (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
o (f) the length of time for which the person is employed;
o (g) the method of payment, whether by the time or by the job;
o (h) whether or not the work is a part of the regular business of the employer;
o (i) whether or not the parties believe they are creating the relation of master and servant; and
o (j) whether the principal is or is not in business.
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