Buckel v. Nunn
883 P.2d 878, 1994 Ore. App. LEXIS 1554, 131 Or. App. 121 (1994)
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Rule of Law:
When evidence regarding the right to control is ambiguous or conflicting, the determination of whether a party is an employee or an independent contractor is a question of fact for the jury. A business may be held vicariously liable for the torts of a hired party if the business's actions and involvement demonstrate a sufficient right of control over the manner and means of the work.
Facts:
- Ron Nunn, owner of the Town & Country Market, authorized his manager, Dennis Nunn, to hire a security firm to investigate suspected employee theft.
- Dennis Nunn signed a contract with S&S Security, run by Steven Rodrigues, to perform various security functions.
- On December 20, 1989, an S&S Security employee, Richard Rowe, confronted plaintiff, a grocery clerk, in the parking lot as she left work.
- Dennis Nunn was present in the parking lot and, when plaintiff looked to him, he shrugged his shoulders, which plaintiff interpreted as an order to comply.
- Rowe led plaintiff to a back room in the market and interrogated her for approximately three hours, accusing her of theft.
- During the interrogation, Dennis Nunn remained nearby, conferred with Rowe about allegedly missing items, and provided cost totals for merchandise plaintiff admitted to taking.
- Following each conference with Dennis, Rowe would return to plaintiff and state there was more she was not admitting.
- At the conclusion of the interrogation, plaintiff signed a promissory note for $9,000.
Procedural Posture:
- Plaintiff filed an action in a state trial court against security agents Rowe and Rodrigues, and against the market owners, Ron and Dennis Nunn, for false imprisonment and intentional infliction of emotional distress.
- A jury returned a verdict in favor of the plaintiff against Rowe and Rodrigues.
- At the close of evidence, defendants Ron and Dennis Nunn moved for a directed verdict, arguing they were not vicariously liable because the security agents were independent contractors.
- The trial court granted the defendants' motion for a directed verdict.
- Plaintiff, as appellant, appealed the trial court's grant of the directed verdict to the Court of Appeals of Oregon, the state's intermediate appellate court.
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Issue:
Is there sufficient evidence for a jury to find that a security firm and its agents were employees of a market, rather than independent contractors, where the market's manager was present during and assisted with an interrogation conducted on the market's premises?
Opinions:
Majority - Leeson, J.
Yes. There is sufficient evidence for a jury to find that the security agents were employees of the market. The general rule is that an employer is not liable for the torts of an independent contractor. The decisive factor in determining whether a party is an employee or an independent contractor is the 'right to exercise control.' Here, the written contract between the market and S&S Security was ambiguous regarding the right to control, method of payment, furnishing of equipment, and the right to fire. Because the contract is not determinative, the court must look to the parties' actions. The evidence showed that Dennis Nunn, the store manager, permitted the interrogation on store premises, provided a room, was present and aware of the interrogation, and actively assisted by calculating the value of allegedly stolen items. This conduct, along with his shrug in the parking lot, could lead a reasonable jury to conclude that the market retained the right to control the security agents' actions. Therefore, the question of their employment status should have been submitted to the jury.
Analysis:
This decision underscores that a written agreement labeling a party as an 'independent contractor' is not dispositive of their legal status. Courts will look beyond the contract to the 'economic realities' and the actual conduct of the parties, focusing on the right of control. This case serves as a caution to businesses that hiring specialists does not automatically insulate them from liability. Active participation, supervision, or providing the instrumentalities for the contractor's work can create a triable issue of fact regarding an employment relationship, thereby exposing the business to vicarious liability for the contractor's torts.
