Vicarious Liability & Negligent Undertaking

Personal Injury Lawyer Austin Texas

Mar 7, 2013 — by Jeff Mundy
Tags: Personal Injury


Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002). But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The right of control is the "supreme test" for determining whether a master-servant relationship exists. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996). In determining whether a worker is an employee or independent contractor, the focus is on who had the right to control the details of the work. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.BFort Worth 2009, pet. denied).

We may consider several factors in determining the extent of the right of control: (1) the independent nature of the person's business; (2) the person's obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control progress of the work, except as to final results; (4) the time for which the person is employed; and (5) the method of payment, whether by time or by the job. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584-85 (Tex. 2005). However, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely v. Gen. Motors Corp., 927 S.W.2d 774, 778 (Tex. App.BTexarkana 1996, writ denied). A contract expressly providing that a person is an independent contractor is determinative of the relationship absent evidence that the contract is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. See Bell v. VPSI, Inc., 205 S.W.3d 706, 713 (Tex. App.BFort Worth 2006, no pet.); Id. (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 588-90 (Tex. 1964)). Evidence that the parties did not intend for an independent contractor relationship can come from the contract itself or from extrinsic evidence. See Farlow, 284 S.W.3d at 911. The right to control is ordinarily a question of fact, but whether a contract gives a right to control is generally a question of law. See id. at 912.

As we have already noted, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778.

Whether such a duty exists is a question of law for the court to decide based on the facts surrounding the occurrence in question. See Abdel-Fattah v. Pepsico, Inc., 948 S.W.2d 381, 383 (Tex. App.BHouston [14th Dist.] 1997, no pet.). Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995). However, one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby. See Fort Bend County Drainage Dist. v. Sbrush, 818 S.W.2d 392, 395-96 (Tex. 1991) (citing Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976)).

An employer has a duty to adequately hire, train, and supervise employees. See Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.BDallas 2005, pet. denied).

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