Subject: Independent contractors Tort liability.
-A car that was driven by employee (who D. claims to be independent contractor), while engaged in duties of employment, collided with a motorcycle driven by P.
-The defendant considered himself to be an employee despite the contractual nomenclature of the agreement.
Servant: A person employed to perform services in the affairs of another and who with respect tot he physical conduct in the performance of the services is subject to the others control or right to control.
-Contract language does not determine the relationship of the parties, rather the “objective nature of the relationship is determined upon an analysis of the totality of the facts and circumstances of each case.”
-The court looks at the following issues in determining whether an employer-employee relationship exists:
1. The extent of control exercised by the master over details of the work.
-Def designated times, area covered, manner in which delivered, a persons who delivery made to.
-Employee did job “as told.”
2. The distinct nature of the worker’s business.
-Employee had no delivery business distinct from his responsibilities to Def.
3. Specialization or skilled occupation.
-Employee’s services not specialized and required no particular training.
4. Materials and place of work.
-Supplied product and designated route.
5. Duration of employment.
-Def. had significant latitude to fire, also provided health insurance to encourage long-term relationship/disability insurance to protect self.
6. Method of payment.
-Not paid by ‘job’ b/c employee’s responsibilities changed without any adjustment to pay/contract.
7. Relation of work done tot he employer’s regular business.
-Delivery is essential.
8. Belief of the parties.
-Def. believed he was an employee.
“It is not determinative that the parties believe or disbelieve that the relation of master and service exists, except insofar as such belief indicates an assumption of control by the one and submission of control by the other.”
-The court states that a jury could conclude that an employer-employee relationship existed between Def. and employee/contractor.
-Summary judgment on vicarious liability claim was inappropriate in this case.
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