Castellanos v. Tommy John, LLC

• Decision Date: 27 February 2014
• Docket Number: No. 20120599–CA.,20120599–CA.
• Citation: 755 Utah Adv. Rep. 16,321 P.3d 218
• Court: Utah Court of Appeals
• Parties: Josue CASTELLANOS, Plaintiff and Appellant, v. TOMMY JOHN, LLC, Defendant and Appellee.

321 P.3d 218

755 Utah Adv. Rep. 16

Josue CASTELLANOS, Plaintiff and Appellant,

v.TOMMY JOHN, LLC, Defendant and Appellee.

No. 20120599–CA.

Court of Appeals of Utah.

Feb. 27, 2014.

Jacob S. Gunter, Provo, Attorney for Appellant.

Michael G. Brady, Attorney for Appellee.

Judge CAROLYN B. McHUGH authored this Opinion, in which Judges STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

McHUGH, Judge:

¶ 1 Plaintiff Josue Castellanos appeals from the district court's grant of summary judgment in favor of defendant Tommy John, LLC (Tommy John) on Castellanos's claims for negligent hiring and for vicarious liability based on intentional torts committed by a security company's employees. We affirm.

BACKGROUND ¹

¶ 2 On August 14, 2009, Castellanos was involved in a physical altercation with security guards at a bar and restaurant owned and operated by Tommy John (the establishment). The security guards were employees of Thor Staffing, a company that had contracted with Tommy John to provide security services at the establishment. Tommy John and Thor Staffing had entered into an Independent Contractor and Work for Hire Agreement (the Agreement), which identified Thor Staffing as an independent contractor with the responsibility to determine the best methods and procedures necessary to perform its services.² The parties agree that Tommy John did not provide any guidance or training to, or impose any rules or regulations controlling the actions of, Thor Staffing's security guards.

¶ 3 In 2010, Castellanos filed suit against Tommy John, alleging that he suffered physical and emotional injuries as a result of being forcibly removed from the establishment by the security guards.³ Based on the theory of respondeat superior, Castellanos alleged that Tommy John was liable for the security guards' intentional torts, including assault, battery, and false imprisonment. Castellanos also alleged that Tommy John was liable for its own negligence in the hiring, supervision, and retention of the individual security guards. But Castellanos did not allege that Tommy John was negligent in its hiring, supervision, and retention of Thor Staffing. Tommy John later filed a motion for summary judgment, arguing that it could not be held liable for the intentional torts of the security guards, because they were employees of an independent contractor, Thor Staffing. Tommy John also claimed that it was not liable for the acts of Thor Staffing, because it did not retain control over the manner of Thor Staffing's performance and because Tommy John did not participate in Thor Staffing's expulsion of Castellanos from the establishment. Finally, Tommy John asserted that it was not negligent in hiring, supervising, and retaining the individual security guards, because, as the employer of an independent contractor, it had no responsibility to exercise supervisory control over Thor Staffing or its hiring practices.

¶ 4 In opposition to the motion for summary judgment, Castellanos argued that, as a business owner, Tommy John had a nondelegable duty to keep its premises safe and, therefore, Tommy John was liable for Thor Staffing's breach of that duty. Castellanos also asserted that Tommy John could be vicariously liable for work done by Thor Staffing because security guard work is inherently dangerous. Finally, Castellanos argued that disputed material facts precluded summary judgment on his negligent hiring, supervision, and retention claim.

¶ 5 The district court granted summary judgment to Tommy John on all claims and certified the judgment as final ⁴ The district court ruled that “under these circumstances, where Thor Staffing maintained an independent contractor status and Tommy John was not involved and did not retain control over how Thor Staffing performed its security services, Tommy John cannot be held vicariously liable for the acts of Thor Staffing or its security guards.” Castellanos timely appeals.

ISSUES AND STANDARD OF REVIEW

¶ 6 Castellanos challenges the district court's grant of summary judgment on two grounds. First, Castellanos contends that Tommy John is vicariously liable for the acts of Thor Staffing's employees under an exception to the general rule that an employer of an independent contractor is not liable for the harmful acts of its contractor. Second, Castellanos contends that the district court erred when it held as a matter of law that Tommy John was not directly negligent in hiring, supervising, and retaining the security guards.

¶ 7 “[S]ummary judgment is appropriate only when ‘there is no genuine issue as to any material fact ... and the moving party is entitled to a judgment as a matter of law.’ ” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 8, 301 P.3d 984 (omission in original) (quoting Utah R. Civ. P. 56(c)). “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted). And “because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, summary judgment is appropriate in negligence cases only in the clearest instances.” Price v. Smith's Food & Drug Ctrs., Inc., 2011 UT App 66, ¶ 7, 252 P.3d 365 (citation and internal quotation marks omitted).

ANALYSIS

I. Exceptions to the Nonliability Rule

¶ 8 In Utah, “the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” Magana v. Dave Roth Constr., 2009 UT 45, ¶ 22, 215 P.3d 143 (citation and internal quotation marks omitted). The rationale for this rule is that “where the principal employer does not control the means of accomplishing the contracted work, the contractor is the proper party to be charged with the responsibility for preventing the risk [arising out of the work], and administering and distributing it.” Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322 (alteration in original) (citation and internal quotation marks omitted). This general rule is subject to exceptions, including (1) where the employer of the independent contractor retains control over the work directly resulting in the injury, id. ¶¶ 14, 18; (2) where the work is inherently dangerous, id. ¶¶ 14, 29; and (3) where the injury is the result of a nondelegable duty owed by the employer to the injured person, see Price, 2011 UT App 66, ¶ 26, 252 P.3d 365. Castellanos claims that an exception to the general nonliability rule is present here and, therefore, that the district court improperly granted summary judgment in favor of Tommy John. For the reasons discussed below, we agree with the district court that none of these exceptions precluded summary judgment in this case.

A. Retained Control

¶ 9 In granting summary judgment, the district court held as a matter of law that Tommy John is not vicariously liable for Thor Staffing's intentional torts under a theory of retained control. Pursuant to the retained control doctrine, the employer of an independent contractor “remains liable for the contractor's actions when the employer participate[s] in or control[s] the manner in which the contractor's work is performed, and therefore owes [a] duty of care concerning the safety of the manner or method of performance implemented.” Magana, 2009 UT 45, ¶ 23, 215 P.3d 143 (alterations in original) (citation and internal quotation marks omitted). To determine whether an employer is liable under the retained control doctrine, Utah courts apply the active participation standard. Id. ¶ 24. “Under that standard, an employer has a duty to ensure the safety of its contractor's work where the employer ‘actively participates' in the contractor's work.” Id. (quoting Thompson, 1999 UT 22, ¶ 19, 979 P.2d 322). The employer “actively participates” in the contractor's work if the employer “directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.” Id. (citation and internal quotation marks omitted). An employer that merely exercises control over the desired result of the contractor's work will not be held to have actively participated. Thompson, 1999 UT 22, ¶ 24, 979 P.2d 322. Furthermore, active participation is insufficient unless it relates to “the injury-causing aspect of the work.” Magana, 2009 UT 45, ¶ 27, 215 P.3d 143 (emphasis, citation, and internal quotation marks omitted).

¶ 10 In this case, the district court ruled that the retained control exception is inapplicable because “Tommy John was not involved and did not retain control over how Thor Staffing performed its security services.” The undisputed facts support the district court's conclusion.

¶ 11 Castellanos argued that summary judgment was inappropriate because there is a factual dispute as to the extent Tommy John controlled the hours the security guards were requested to work and the locations within the establishment where the security guards were supposed to work. Castellanos also provided deposition testimony from a friend (Friend) who was expelled from the establishment with Castellanos, stating that after the security guards had removed them the owner pointed at Castellanos's friend, identifying him for the police who had arrived at the scene. Friend further indicated that the owner later walked over to him, took his picture, and told him never to return to the establishment. According to Castellanos, this evidence establishes that the owner had retained some control over security activities at the establishment. However, such facts are insufficient to establish retained control because they do not relate to the injury-causing aspects of the work, i.e., the means and methods by which the security...