SKOGLUND, J. This is the second case arising from the near-fatal assault of Michael Kuligoski by Evan Rapoza, who had previously been diagnosed with schizophreniform disorder. In this case, plaintiffs—members of the Kuligoski family—brought suit against Evan’s grandparents, claiming that they were liable for Evan’s assault of Mr. Kuligoski while Mr. Kuligoski was repairing the furnace at their rental property. Plaintiffs claim, among other things, that the grandparents are vicariously liable for Evan’s father’s negligent hiring or supervision of Evan, who was there to help his father repaint an apartment. On appeal, plaintiffs seek reversal of the trial court’s order granting grandparents summary judgment. Plaintiffs argue that the court erred by determining that grandparents could not be held vicariously liable for the attack because it was not reasonably foreseeable. We affirm, but on a different basis than that relied upon by the trial court.
As a preliminary matter, we reject grandparents’ argument that plaintiffs’ failure to appeal from the trial court’s order granting summary judgment to Evan’s parents estops plaintiffs from pursing their claim imputing negligence to the grandparents. There was no preclusive effect arising from the court’s summary judgment order in favor of the parents, because it was not a final judgment and the final judgment was timely appealed.
To prevail on its claim against grandparents, plaintiffs must demonstrate not only negligence on the part of father, but also an employer-employee relationship between grandfather and father that warrants imposing liability on grandparents for father’s negligence. In tort cases, we have relied upon the common law “right to control” test to determine whether a worker is an employee or an independent contractor. See Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126, 14 A.3d 968; RLI Ins. v. Agency of Transp., 171 Vt. 553, 554, 762 A.2d 475, 477 (2000) (mem.); LeClair v. LeClair, 2017 VT 34, ¶ 38, ___ Vt. ___, 169 A.3d 743 (stating that “essential element” in determining employer-employee relationship “is the right to control” (quotation omitted)); see also Restatement (Third) of Agency § 7.07(3)(a) (stating that, for purposes of that section, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).
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. Because this is not a close case with respect to the primary right-to-control test, we need not look at the supplementary Restatement factors.
REIBER, C.J., dissenting. Grandparents may not have elected to exercise their right to control the means and methods of their son’s work as property manager of their apartment building, but that is not the test. The test is whether they had a right to control his work. The nature of the relationship strongly suggests that they did. At minimum, particularly given the inferences inherent in the relationship suggesting a right to control, it is for the jury, not this Court, to make that determination. A reasonable jury could reasonably infer from the facts that grandparents had the right to control the means and methods of father’s work at their apartment building, so as to make them potentially liable for father’s conduct in hiring and/or supervising grandson on the property. Further, I would adopt the American Law Institute’s view that foreseeability is primarily a consideration in determining whether a duty has been breached or whether the defendant’s conduct proximately caused the harm—both of which are ordinarily factual determinations within the purview of the jury. See Restatement (Third) of Torts: Physical & Emotional Harm § 7 cmt. j (2010) (stating that proper role for foreseeability is not in determining whether duty exists, which is purely legal question regarding whether to impose liability in category of cases, but rather in making factual determination as to whether duty was breached). Because I disagree with the majority’s determination as a matter of law that no employer-employee relationship existed between grandparents and father, and because I would also hold that the trial court erred by not allowing the jury to determine the foreseeability of the nature of the harm resulting from father bringing Evan to the work site, I respectfully dissent.
As a preliminary matter, we reject grandparents’ argument that plaintiffs’ failure to appeal from the trial court’s order granting summary judgment to Evan’s parents estops plaintiffs from pursing their claim imputing negligence to the grandparents. There was no preclusive effect arising from the court’s summary judgment order in favor of the parents, because it was not a final judgment and the final judgment was timely appealed.
To prevail on its claim against grandparents, plaintiffs must demonstrate not only negligence on the part of father, but also an employer-employee relationship between grandfather and father that warrants imposing liability on grandparents for father’s negligence. In tort cases, we have relied upon the common law “right to control” test to determine whether a worker is an employee or an independent contractor. See Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126, 14 A.3d 968; RLI Ins. v. Agency of Transp., 171 Vt. 553, 554, 762 A.2d 475, 477 (2000) (mem.); LeClair v. LeClair, 2017 VT 34, ¶ 38, ___ Vt. ___, 169 A.3d 743 (stating that “essential element” in determining employer-employee relationship “is the right to control” (quotation omitted)); see also Restatement (Third) of Agency § 7.07(3)(a) (stating that, for purposes of that section, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).
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. Because this is not a close case with respect to the primary right-to-control test, we need not look at the supplementary Restatement factors.
REIBER, C.J., dissenting. Grandparents may not have elected to exercise their right to control the means and methods of their son’s work as property manager of their apartment building, but that is not the test. The test is whether they had a right to control his work. The nature of the relationship strongly suggests that they did. At minimum, particularly given the inferences inherent in the relationship suggesting a right to control, it is for the jury, not this Court, to make that determination. A reasonable jury could reasonably infer from the facts that grandparents had the right to control the means and methods of father’s work at their apartment building, so as to make them potentially liable for father’s conduct in hiring and/or supervising grandson on the property. Further, I would adopt the American Law Institute’s view that foreseeability is primarily a consideration in determining whether a duty has been breached or whether the defendant’s conduct proximately caused the harm—both of which are ordinarily factual determinations within the purview of the jury. See Restatement (Third) of Torts: Physical & Emotional Harm § 7 cmt. j (2010) (stating that proper role for foreseeability is not in determining whether duty exists, which is purely legal question regarding whether to impose liability in category of cases, but rather in making factual determination as to whether duty was breached). Because I disagree with the majority’s determination as a matter of law that no employer-employee relationship existed between grandparents and father, and because I would also hold that the trial court erred by not allowing the jury to determine the foreseeability of the nature of the harm resulting from father bringing Evan to the work site, I respectfully dissent.
No comments:
Post a Comment