Lazo v. Mak's Trading Co.
644 N.E.2d 1350, 620 N.Y.S.2d 794, 84 N.Y.2d 896 (1994)
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Rule of Law:
An employer is not vicariously liable for an intentional tort committed by a hired worker where the employer does not exercise sufficient control over the work to establish an employment relationship. Even if an employment relationship exists, an employer is not liable for an assault committed by an employee when the act is not in furtherance of the employer's business and is outside the scope of employment.
Facts:
- Plaintiff, a tractor-trailer operator, delivered a shipment of rice to defendant, a wholesale and retail grocer.
- Defendant engaged three neighborhood men, who were not regular employees, to help unload the trailer.
- During the unloading, one of the three men got into an altercation with the plaintiff, resulting in personal injuries to the plaintiff.
- The men worked at their own convenience, were free to hold other employment, and had performed unloading tasks for the defendant previously on a random, on-inquiry-for-work basis.
- The men were not on the defendant’s payroll, received no fringe benefits, and no taxes were withheld from their payment.
- Defendant paid a single sum of $80 in cash to one of the three workers, leaving it to them to divide the payment.
Procedural Posture:
- Plaintiff sued defendant in the trial court for personal injuries.
- Defendant moved for summary judgment to dismiss the complaint.
- The trial court granted defendant's motion for summary judgment.
- Plaintiff, as appellant, appealed the decision to the Appellate Division, an intermediate appellate court.
- The Appellate Division affirmed the trial court's grant of summary judgment in favor of the defendant, as appellee.
- Plaintiff, as appellant, then appealed to the Court of Appeals, the state's highest court.
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Issue:
Is a business vicariously liable for an assault committed by a day laborer it hired for a single task when the business does not control the manner of the work and the assault is not in furtherance of the business's interests?
Opinions:
Majority - Memorandum
No. A business is not vicariously liable for an assault committed by a day laborer under these circumstances. The defendant did not exercise actual or constructive control over the performance and manner in which the unloaders' work was performed. The record demonstrates that the laborers were independent contractors rather than employees, based on factors such as their freedom to set their own schedule, their ability to hold other employment, and the method of payment—a single, flat cash rate with no payroll, benefits, or tax withholding. Lacking the requisite control for an employer-employee relationship, defendant cannot be held vicariously liable. Furthermore, in these circumstances, there is no duty for an employer to conduct background inquiries when selecting individuals for such an as-needed task.
Concurring - Titone, J.
No. While I agree the defendant is not liable, the majority's focus on the control test is misplaced and unnecessary. There is a strong argument that the workers could be considered employees given they were unskilled laborers following defendant's directions on where to place the goods. The dispositive issue is that even if the assailant was an employee, the assault was not within the scope of his employment. An employer is not vicariously liable for an employee's assaultive acts when the conduct is not in furtherance of the employer’s business, was not authorized, and the use of force is not within the employee's discretionary authority. Here, the assault was a personal act, not connected to the duties of unloading rice, and therefore defendant is not liable regardless of the worker's employment status.
Analysis:
This case illustrates the two primary defenses against vicarious liability for an employee's intentional tort. The majority opinion focuses on the first hurdle: proving the existence of an employer-employee relationship through the 'control test'. The concurring opinion provides a more complete analysis, demonstrating that even if an employment relationship is established, liability is defeated if the tortious act falls outside the 'scope of employment'. The case thus provides a two-part framework for future litigation, requiring plaintiffs to prove both employment status and that the act was in furtherance of the employer's business.
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