1998 -NMCA- 92, Madsen v. Scott
| Decision Date | 13 May 1998 |
| Docket Number | No. 17211,17211 |
| Citation | 125 N.M. 475,1998 NMCA 92,963 P.2d 552 |
| Parties | , 1998 -NMCA- 92 Ronald Dale MADSEN and Terrisa Ruth Madsen, individually and as Personal Representatives of the Estate of Jason Madsen, Deceased, Plaintiffs-Appellants, v. Shawn D. SCOTT, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
¶1 This case requires us to consider under what circumstances a housesitting arrangement will create an employer-employee relationship such that a homeowner may be held vicariously liable for the negligent acts of the housesitter. As a related issue, we consider whether an employee's failure to act can be an omission occurring within the scope of employment.
¶2 Plaintiffs brought suit seeking damages for the injury and wrongful death of their son, Jason Madsen, as the result of a shooting at Shawn Scott's home. The trial court entered summary judgment on Scott's motion, finding that Scott's housesitting arrangement with two brothers did not create an agency relationship such that Scott could be held vicariously liable for their negligence. On appeal, Plaintiffs present two issues: (1) whether the housesitting arrangement in this case could create an employer-employee relationship; and (2) whether Scott's instruction to his housesitter not to let anyone touch his guns, and the housesitter's failure to carry out that instruction, could constitute negligence for failure to act. We answer both questions in the affirmative and reverse.
¶3 In January 1992, Shawn Scott (Homeowner) planned to take an out-of-town trip. Homeowner engaged Melvin Franklin (Melvin) to take care of his home. Homeowner and Melvin were good friends and worked together at a doughnut shop. Prior to leaving on his trip, Homeowner took Melvin to his home and instructed him to stay at the house, water the plants, not to have any wild parties, and not to let anyone, other than Melvin, touch his guns. Both Homeowner and Melvin had an interest in guns. Homeowner collected guns as a hobby and would take them shooting. Melvin also owned guns and would use them for hunting and shooting. At the time Homeowner was out of town, he left behind five rifles in an unlocked gun case. On top of the gun case was a .22 pistol. However, the guns were unloaded and no ammunition was left in the house. Homeowner told Melvin that if he wanted to take the guns out shooting he would have to bring his own ammunition.
¶4 A few days after Homeowner left, he called to check on his house. Melvin's deposition equivocated as to whether Homeowner asked Melvin if anyone was touching his guns. Melvin testified that Homeowner "may" have asked such a question. When asked, "What did [Homeowner] say," Melvin responded, "He just wanted to know if the guns--." Melvin then rephrased the answer to, "he probably would have just asked" if anyone touched the guns. At the time of that conversation, Melvin asked Homeowner whether Melvin's brother Richard Franklin (Richard) could also stay at the house. Homeowner gave his permission for Richard to stay at his home. Homeowner knew Richard, as he worked at the doughnut shop with Homeowner and Melvin. Homeowner also knew that Richard had an interest in guns. Richard had previously sold a gun to Homeowner and on one occasion, Richard had taken a gun he had purchased to the doughnut shop to show Homeowner.
¶5 On January 26, 1992, while the brothers were staying at the house, they invited Jason Madsen (Jason) and two female friends over to watch the Super Bowl. Prior to the party, Richard and Jason had gone shooting with Richard's gun. During the party, Richard and Jason continued to play with guns, and guns were at various locations in the living room. Richard left his .38 pistol on the TV, and Homeowner's Daisy Pistol was on the coffee table along with ammunition. Richard also took Homeowner's .22 from the gun rack in the living room.
¶6 During the time that Richard and Jason were playing with the guns, Melvin was also in the living room. Richard was sitting on a sofa a few feet from where Melvin was lying with his head resting on the sofa, watching TV. During the Super Bowl game, Richard and Jason decided to play "quick draw." Jason had Homeowner's gun and Richard had his own gun. Jason told Richard that he wanted to draw first. Jason reached for his gun, and then Richard drew his gun and pulled the trigger, the gun fired, and Jason was shot and killed.
¶7 Jason's parents brought this suit against Richard, who fired the fatal shot, and Homeowner. Melvin, the person responsible for housesitting, was not sued. Plaintiffs' complaint alleged that Richard was negligent and that Homeowner was also negligent for his acts and omissions, particularly in leaving the guns unsecured. Plaintiffs also filed an amended complaint stating that: (1) Richard and Melvin were the employees/agents of Homeowner, (2) Melvin was negligent in failing to control and supervise the use and misuse of Homeowner's weapons, and (3) Homeowner was vicariously liable for the negligence of Melvin and Richard. Homeowner answered the complaint and moved for summary judgment on the basis that under these circumstances, he owed no duty to Jason because he could not have reasonably anticipated the shooting. The trial court granted Plaintiffs' motion to amend the complaint and granted Homeowner's motion for summary judgment. In its ruling, the trial court stated that "a[ ] principal agent relationship did not exist between Shawn Scott and Melvin Franklin with respect to any of the circumstances contributing to the death of Jason Madsen."
¶8 An award of summary judgment will be upheld if no genuine issues of material fact exist or the moving party is entitled to judgment as a matter of law. See Sarracino v. Martinez, 117 N.M. 193, 194, 870 P.2d 155, 156 (Ct.App.1994). We consider the facts relating to each of the issues raised on appeal in the light most "favorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists." Ruiz v. Garcia, 115 N.M. 269, 271, 850 P.2d 972, 974 (1993). In reviewing the grant of summary judgment, "we take note of any evidence in the record which puts a material fact in issue." Gillin v. Carrows Restaurants, Inc., 118 N.M. 120, 122, 879 P.2d 121, 123 (Ct.App.1994).
¶9 The principal question before us is whether the trial court erred as a matter of law when it granted summary judgment. The trial court granted the motion for summary judgment based upon its determination that Homeowner owed no duty to Jason because Homeowner did not have an employer-employee relationship with Melvin or Richard. Because the trial court determined that there was an absence of any relationship which would create a duty in Homeowner toward Jason, our first inquiry focuses upon the correctness of this conclusion.
¶10 Homeowner contends that the housesitting arrangement with Melvin did not create an employer-employee relationship. Plaintiffs argue that an employer-employee relationship was created or, alternatively, that there are genuine material facts in dispute that would preclude summary judgment.
¶11 If one or both of the brothers was an employee of Homeowner then, under the doctrine of respondeat superior, Homeowner may be held liable for the tortious acts of his employees which are done in the scope of their employment. See Reynolds v. Swigert, 102 N.M. 504, 507-08, 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254, 784 P.2d 992, 997 (1989) ()
¶12 In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to be done, even though the right of control may not be exercised." UJI 13-403 NMRA 1998; see also Restatement (Second) of Agency § 220(1) (1958) (). The fact that an employee does not receive any wages is not controlling. See California First Bank v. State, 111 N.M. 64, 70, 801 P.2d 646, 652 (1990) (); Restatement, supra § 225 cmt. a ("Consideration is not necessary to create the relation of ... master and servant.").
¶13 It is undisputed that Homeowner engaged Melvin to housesit. Homeowner asked Melvin to keep an eye on the house, to water the plants, and not to let anyone touch Homeowner's guns. Thus, Melvin was performing a service for Homeowner.
¶14 However, the issue in contention is whether Homeowner had the right to control the manner in which the details of the work were to be performed. Homeowner contends that he did not have the right to control the manner in which the housesitting arrangement was carried out. Homeowner argues that the instructions he gave to Melvin to watch the house, to water the plants, and not to let anyone touch the guns were not specific or detailed enough to provide him with the right to control Melvin's performance of those duties. In support of his argument, Homeowner refers our attention to the Hawaii case of Lai v. St. Peter, 10 Haw.App. 298, 869 P.2d 1352 (1994).
¶15 In Lai, the court considered whether a housesitting arrangement created an employer-employee relationship...
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