Wednesday, January 16, 2019
An important issue for many farmers and ranchers concerns potential liability for injury or damage caused by persons that work on behalf of the farming or ranching business. This is a real concern because of the many potentially dangerous situations that farming or ranching can present with respect to, for example, machinery and equipment, livestock, and a work environment that is subject to weather conditions that can often be less than favorable.
Farm/ranch businesses and liability for the acts of workers – that’s the topic of today’s post.
Employee or Independent Contractor?
In certain situations, one person may be held liable for the tortious acts of another person based on a special relationship between the two even without having personally committed the act that caused liability. This is known as “vicarious liability,” and it can mean that an employer can be liable for the acts of an employee. But, for the employer to be jointly liable with the employee, the employee must have committed the act leading to liability while acting in the “scope of employment.” This rule is often described as the doctrine of “respondeat superior,” which means “let the person higher up answer.” It’s the control by the employer over an employee that justifies joint liability.
Factors for making the distinction. The control issue is a key point. Vicarious liability generally does not apply to conduct of independent contractors. How is that determination made? While no single factor is dispositive in all cases, an employee is generally one who works subject to the control of the employer. See, e.g., Coates v. Anderson, 84 P.3d 953 (Wyo. 2004). This usually requires control both with respect to the manner and means of performing the particular job task. In these situations, the employer is responsible for the acts of the employee committed in the scope of the employee's employment. The “control” required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work. It is not enough that the employer exercise control over the general manner in which the work is carried out, there must be control over the physical details of the work in order for an employer-employee relationship to be established. Therefore, if the employer retains control over the manner of performance by specifying how the work is to be accomplished, the time the individual will start working, the lunch break and other breaks, the employer is retaining control over the manner of performance. Likewise, the employer retains control over the means of performance if the employer provides the tools and equipment necessary to complete the job. An employer may also be directly liable to a customer for breaching a duty of care owed to the customer to supervise its employees involved in service for hire or to supply its employees with safe and proper equipment. See, e.g., Eischen, et al. v. Crystal Valley Cooperative, 835 N.W.2d 629 (Minn. Ct. App. 2013). An independent contractor, on the other hand, although hired to produce a certain result, is not subject to the control of the employer while the work is performed.
In any given situation, there may not be any control over the manner of performance, but there may be control over the means of performance. Thus, individuals hiring other persons to accomplish certain tasks should clearly specify whether an employer-employee relationship is to result. This clarity is often lacking in ag settings.
If the subordinate is free to execute the work without being subject to the direction of the principal as to details, that person is usually an independent contractor. A person engaging an independent contractor is generally not liable to third persons for the independent contractor's acts. However, if the work is such that, unless special precautions are taken, there will be a high degree of danger to others, the person hiring the independent contractor will be liable. This is an exception for “inherently dangerous”activities. This rule first applied principally to work which was highly dangerous even if every possible precaution was taken such as might occur with the use of dynamite. More recently, employer liability has been applied where the work to be done by the independent contractor is not “ultra-hazardous” if it is performed without adequate precautions. In this situation, if the independent contractor omits the precautions, the independent contractor's negligence is attributed to the employer. An example could be aerial crop spraying in some states.
“Scope of employment.” A difficult question in the area of respondeat superior is whether, in a particular case, the employee was acting “within the scope of his employment” when the tort occurred. In general, the tort is within the scope of employment if the individual acted with the intent to further the employer's business, even if the means chosen were indirect, unwise, and perhaps even forbidden. Most courts hold that an employee will be deemed to be within the scope of employment even though the employee's intent to serve the employer is coupled with a separate personal purpose.
Most courts hold that if an accident occurs when the employee is traveling from home to work, the employee is not acting within the scope of employment. This seems correct because the employer usually has no “control” over the employee at that time. The result should be the same even if the employer pays the employee a mileage allowance for the trip, and also agrees to pay the employee's hotel expenses for an overnight stay. Likewise, where the employee is returning home after the day's business activities, most courts do not hold an employer liable if the employee commits a negligent act. In one case, the defendant was not liable for the plaintiff's injuries sustained in an auto accident with the defendant's farm tenant while the tenant traveling from the farm to the defendant's home to help mow the defendant's law. The tenant not acting within scope of his job duties as a farm tenant at the time of accident and no evidence was presented that the defendant was in partnership or acting in a joint enterprise with the tenant. Granillo, et al. v. McKinzie, No. 11-07-00241-CV, 2009 Tex. App. LEXIS 728 (Tex. Ct. App. Feb. 5, 2009).
Interesting cases arise in situations involving an employee on a business trip who makes a short “side trip”, or “detour”, for the employee's own purposes. The traditional view has been that while the employee is on the first leg of a side trip, the employee is engaging in what is often called a “frolic and detour” and is thus not within the scope of employment. But, as soon as the employee begins to return towards the path of the original business trip, the employee is once again within the scope of employment, no matter how far afield the employee may be at that point. The recent trend, however, has been to take a less “mechanical” view of the “frolic and detour” problem. Most courts today hold that the employee is within the scope of business if the deviation is “reasonably foreseeable”. Under this approach, the employee might be within the scope of employment even while heading toward the object of a personal errand, if the deviation was slight in terms of distance. But, if the deviation was large and unforeseeable, in terms of miles, then the employee is not within the scope of business even while heading back towards the business goal, at least until returning reasonably near to the original route the employee was supposed to take.
Recent case. In Moreno v. Visser Ranch, Inc., No. F075822, 2018 Cal. App. LEXIS 1194 (Cal. Ct. App. Dec. 20, 2018), the defendant dairy employed a worker to be on call around the clock to repair equipment on the defendant’s various farms as needed. The worker was in his work vehicle when he was involved in a single vehicle accident. The plaintiff was riding with the worker at the time of the accident. The plaintiff was employed by a third party to perform various services at the dairy and other local farms. On the night of the accident, the worker and third party attended a family function (they were related) not located on farm property. On the way home after the function, the vehicle they were in left the road and rolled over. The plaintiff was not wearing a seat belt and was seriously injured. The plaintiff sued the driver, dairy farm and the auto manufacturer for negligence. The plaintiff also sued the State and the County based on the dangerous condition of the road where the accident occurred (the road was under construction). The dairy moved for summary judgment on the plaintiff’s respondeat superior claim on the basis that the driver was not acting within the scope of employment when the accident occurred. The trial court granted the motion. The trial court also granted summary judgment for the dairy on the issue of liability arising from ownership of the vehicle. The plaintiff was, however, able to recover statutory damages from the driver. On appeal, the appellate court determined that fact issues remained on the respondeat superior claim. Though the worker and the plaintiff were returning from a family function, the driver was on call 24/7 to respond to issues at the dairy farm. In addition, the appellate court determined that a fact issue remained as to whether the worker, was acting within the scope of his employment and benefiting the dairy farm at the time of the accident. The appellate court remanded the case.
The potential liability of a farm or ranch business for the conduct of persons working for it is an important issue. Liability often turns on how much control the business exercises over the job tasks. The liability issue and the ways it can occur for any particular farm or ranch business is a good conversation to have with legal counsel.