|A different type of control|
Kuligoski v. Rapoza, 2018 VT 14
By Andy Delaney
This version is based on a respondeat superior theory. For those of you not indoctrinated in legalese, that’s a claim that an employer is liable for the negligence of his or her employee. This most often arises when an employee is driving a company vehicle and gets in a wreck or when a hospital employee commits medical malpractice. Sometimes, it’s a little more nuanced like, say, here.
Grandparents own a rental property. Grandson had been diagnosed with schizophreniform disorder. Grandson was at the rental property, with grandson’s father, helping father paint an apartment. Grandson attacked the furnace repair man, Mr. Kuligoski, nearly killing him. Mr. Kuligoski’s family sued the grandparents (and grandson and the parents) for failing to take reasonable steps to make the property safe for visitors and also for failing to supervise father, who created an unreasonable risk by bringing grandson to the property.
Grandparents moved for summary judgment. They argued: (1) the attack was unforeseeable because they didn’t know about grandson’s mental health issues; (2) father was an independent contractor; and (3) father wasn’t even on notice from grandson’s mental health providers that grandson posed a danger. The trial court granted the motion, concluding that grandparents didn’t know about grandson’s mental-health issues and the attack was not foreseeable, even assuming father was grandparents’ employee.
Plaintiffs appeal, arguing that the trial court screwed up in three ways: (1) in finding as a matter of law that grandson’s attack on Mr. Kuligoski was not foreseeable; (2) in refusing to apply the doctrine of respondeat superior; and (3) in rejecting their claim that grandson’s parents undertook and breached a duty to monitor grandson’s treatment after his release from the Brattleboro Retreat, thereby making grandson’s assault on Mr. Kuligoski more likely.
Say it with me boys and girls: “Summary judgment is appropriate if the moving party shows that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.”
The majority starts off by getting rid of a largely technical argument. Grandparents argue that plaintiffs didn’t appeal a summary judgment order in favor of parents, so it’s game over. “Not so fast,” says the majority. That wasn’t a final order, so we move on to the substantive issues.
Because the majority concludes that the alleged employee-employer relationship between grandparents and father is determinative, it starts with that.
The majority begins the analysis by noting that the mere fact that the assault happened on grandparents’ property doesn’t necessarily make the grandparents liable under the respondeat superior doctrine.
The majority explains that to prevail on their remaining claim against the grandparents, plaintiffs must not only prove that father was negligent, but there was also an employer-employee relationship between father and grandparents. SCOV notes that in the tort context, it has relied on the common law “right to control” test to distinguish between employees and independent contractors.
If the employer is in charge of the result and the means and methods by which the worker achieves that result, then under the right-to-control test, the worker is an employee. If that doesn’t clearly answer the question, then there are Restatement factors to throw in the mix (specifically § 220 of the Restatement (Second) of Agency for you citation nerds).
With this in mind, the majority looks at the relationship between grandparents and father with respect to father’s work at grandparents’ rental property. In 2007, the grandparents, who are retired and live in Rhode Island, bought a rental property near their son’s (father’s) home. Father acted as the property manager and would have done it for free, but grandparents insisted on paying him $100 a month. Father did mowing and plowing, dealt with local vendors, and handled relations with the tenants.
Father did some renovations. He generally used his own tools or tools that were at the rental. Though grandparents might make selections for carpet, tiles, paint, and bathroom fixtures, they didn’t supervise father. Father would make a suggestion for a repair or renovation and if grandparents said go ahead, then father would buy the materials, do the job, and grandparents would reimburse him and pay him what he asked for. Father was in charge of who worked at the rental and when.
So, grandparents argue that they’re entitled to summary judgment because there’s no employee-employer relationship under the right-to-control test. “Hold up,” say plaintiffs. “It’s ambiguous enough that a jury should decide.”
“Yeah, sometimes,” says the majority. “But here the facts demonstrate a lack of such a relationship, so it’s up to the court,” The majority explains:
Here, few if any facts support finding an employer-employee relationship between grandparents and father under our primary right-to-control test. The undisputed facts show that father managed the out-of-state grandparents’ building and did renovation work that he recommended without any control, or expectation of control, by grandparents over the means or methods of his work. Although grandparents, as the ones paying for the work, gave final approval for any major renovation work father recommended, father chose the means and methods to do the work without oversight. Essentially, grandparents left the management and renovation of the building to father to do as he saw fit. The fact that grandparents might choose what carpets, tiles, or fixtures would be used does not indicate that they controlled the means or methods of father’s work.
Because the right-to-control test is not even close for the majority, it doesn’t need to get into the Restatement factors. The majority does note, however, that if it did get into it, the supplemental factors would go in favor of father not being an employee.
Chief Justice Reiber dissents because even though the grandparents didn’t exercise their right to control father’s work, they certainly had it. And the test is whether they had the right to control, not whether they used it. At minimum, Chief Justice Reiber believes it’s a jury question.
The dissent notes that the historical reasons for the right-to-control test are that in the traditional master-servant relationship, the servant was a member of the family or of the mercantile household” and the close relationship is the reason for imposing liability.
The dissent also notes that even though the majority dutifully states the law, it doesn’t appear to follow it: “Indeed, in my view, the majority is applying inferences against plaintiffs in finding no employer-employee relationship as a matter of law.”
The dissent also would reverse the trial court’s not-foreseeable finding though we don’t get too deep into that rabbit hole.
Because the parties “submitted conflicting facts with multiple possible inferences regarding the foreseeability of the harm,” the dissent reasons that this case should have gone to a jury and summary judgment was inappropriate.