Fisher v. Townsends, Inc., No. 308

CourtUnited States State Supreme Court of Delaware
Writing for the CourtBefore VEASEY; HOLLAND
Citation695 A.2d 53
Parties12 IER Cases 1818 John FISHER, Plaintiff Below, Appellant, v. TOWNSENDS, INC., Defendant Below, Appellee. . Submitted:
Docket NumberNo. 308,1996
Decision Date15 April 1997

Page 53

695 A.2d 53
12 IER Cases 1818
John FISHER, Plaintiff Below, Appellant,
v.
TOWNSENDS, INC., Defendant Below, Appellee.
No. 308, 1996.
Supreme Court of Delaware.
Submitted: April 15, 1997.
Decided: June 11, 1997.

Page 55

Upon appeal from the superior Court. REVERSED.

Court Below--Superior Court of the State of Delaware, in and for Sussex County, C.A. No. 94C-08-002.

Harold Schmittinger, William D. Fletcher, Jr. (argued), and Jeffrey J. Clark, of Schmittinger & Rodriguez, P.A., Dover, for appellant.

Mark L. Reardon and William F. Taylor, Jr. (argued), of Elzufon & Austin, P.A., Wilmington, for appellee.

Before VEASEY, C.J., HOLLAND and HARTNETT, JJ.

HOLLAND, Justice:

This appeal arises out of a motor vehicle accident in which the plaintiff-appellant, John Fisher ("Fisher"), was seriously injured. At the time of the accident, Fisher was a passenger in a pickup truck being driven by Percy Reid ("Reid"). Fisher's complaint alleged that the defendant-appellee, Townsends, Inc. ("Townsends"), was vicariously liable for Reid's negligent conduct while driving the truck. 1 Fisher also alleged that Townsends was independently negligent for hiring Reid.

This is Fisher's direct appeal. Fisher contends that the Superior Court erred by granting Townsends' summary judgment motion on the allegation of vicarious liability. According to Fisher, the facts of the record, when viewed in the light most favorable to Fisher, precluded the Superior Court from granting summary judgment.

This Court has concluded that the record reflects a material dispute of facts about whether Reid was Townsends' agent. That factual dispute should have been submitted to the jury. Accordingly, the summary judgment entered by the Superior Court in favor of Townsends on the issue of vicarious liability must be reversed.

Procedural Facts

Townsends made a pre-trial motion for summary judgment. First, Townsends argued that Reid was an independent contractor, thereby rendering the doctrine of respondeat superior inapplicable. Second, Townsends argued that, as a matter of law, it was not negligent for hiring Reid.

The Superior Court granted Townsends' motion on the issue of vicarious liability. It concluded that Reid was an independent contractor and, consequently, as a matter of law, could not have his negligence imputed to Townsends. The Superior Court denied Townsends' motion for summary judgment with regard to Fisher's allegation of its negligence in hiring Reid.

At trial, the Superior Court granted a directed verdict in favor of Fisher on the issue of Reid's liability. The factual issue of Townsends' negligence in hiring Reid, however, was submitted to the jury. The jury found that Townsends was not negligent in hiring Reid. The jury awarded Fisher damages against Reid in the amount of seven million dollars.

Townsends and Reid

Facts of Relationship

Townsends operates a chicken processing business. Townsends' Delaware plant processes approximately 1,350,000 chickens per week. Consequently, each day an average of more than 250,000 chickens are caught and delivered to Townsends for processing. Townsends operates two shifts each day to accomplish these results.

Townsends hired seven weighmasters to assemble chicken catching crews. Those crews remove live birds from chicken houses on farms operated by Townsends' growers.

Page 56

The catchers load the chickens into cages for transportation to Townsends' processing plant in Millsboro, Delaware.

Townsends hired Reid as a weighmaster. Reid performed his services as a weighmaster for Townsends exclusively, for at least five years prior to the time of Reid's accident involving Fisher. 2 The relationship between Townsends and Reid continued pursuant to oral understandings until the summer of 1992.

In July 1992, Townsends presented Reid with a written Catching Crew Agreement. The parties disagree about whether the Catching Crew Agreement was executed prior to Reid's accident. 3 There is a consensus, however, that the written agreement was not intended to change or alter the nature of the longstanding relationship between Reid and Townsends.

Each chicken catching crew consisted of seven members and a foreman. Each crew was transported to and from work sites in vehicles that Reid owned. The catchers were generally picked up at their homes by a foreman in the vehicles assigned to each crew by Reid.

At each farm, the catchers physically removed the birds from the chicken houses and placed them into cages that Townsends provided. A Townsends' employee forklift operator was responsible for placing the empty cages on stools in the chicken houses and returning the full cages to the trucks for hauling. Townsends' employees transported the chickens on its tractor trailers from the farms to its processing plant. Townsends also hired a Live Haul Manager, who would visit its growers' farms periodically, to see if the weighmasters, forklift operators or truck drivers were experiencing problems.

Townsends coordinated its operations with a daily work order known as a Flock Movement Sheet. These sheets were distributed each day throughout its system. The sheet identified the various farm locations that the weighmasters, forklift drivers and chicken cage truck drivers would report to for each day's work.

Everyone involved in the collection and transportation of Townsends' chickens to its plant was required to comply with the Flock Movement Sheet. Townsends' Live Haul Manager oversaw the entire chicken catching, loading, and hauling process, including the weighmasters' actions. The Live Haul Manager would normally deal directly with the weighmasters. These communications included requesting the weighmasters to correct the chicken catchers conduct. If a weighmaster failed to take corrective action, Townsends could direct the weighmaster to discharge the chicken catchers, or terminate the weighmaster himself.

Townsends supplied Reid with a Flock Movement Sheet everyday. Each sheet identified: the farm where the day's work was to be done; the total number of birds to be removed; which of Reid's crews was assigned to the job; the time that the crew was to report; and the number of birds to be placed in each cage, to keep the birds from overheating and dying. In addition, Townsends supplied the cages for the chicken catching crews to use. Townsends also provided the chicken catchers with paper masks and disposable gloves.

Page 57

Townsends required its weighmasters to keep two way radios in the vehicles they used to transport their crews. In fact, Townsends supplied Reid with radios for both of his transport vehicles. These radios permitted Townsends to advise Reid and its other weighmasters of changes in work sites or daily orders. Similarly, the radios enabled the weighmasters to communicate with Townsends about any work-related problems.

Pursuant to Reid's oral agreement with Townsends, Reid assembled two chicken catching crews. They were denominated, for identification purposes, as Crew 1 and Crew 2. Fisher was a member of Crew 2.

Charles Pitts ("Pitts") was the foreman of Crew 2. The vehicle assigned to Crew 2 was a 1980 Ford van. 4 As the foreman, Pitts picked up the members of Crew 2 in the 1980 van and drove them to each day's work sites.

Fisher's Injury

Facts of Accident

On July 31, 1992, all members of Crew 2 had been picked up by Pitts as usual. The members of Crew 2 completed a job on the Dukes' farm at approximately one o'clock in the afternoon. The crew could not leave the site, however, because of a malfunction in the 1980 Ford van's transmission. Pitts called Reid for alternate transportation.

Reid arrived in a 1979 Chevrolet pickup truck between 4:30 and 5:00 p.m. The bed of the 1979 truck was similar to the 1985 truck that was regularly used to transport the members of Crew 1. It was covered with a pick-up top and contained bus seats that did not have seatbelts.

Reid drove and Pitts sat in the cab with him. Fisher and six other employees sat in the back bed of the pickup truck. Reid proceeded southbound on State Route 5 in Sussex County, Delaware.

As part of his weighmaster's job, Reid was required to go to Townsends' processing plant in Millsboro at the end of each day to receive a Flock Movement Sheet for the next day's work. Reid was on his way to obtain such a work order when the accident occurred that injured Fisher. It took place approximately .3 miles south of Harbeson, Delaware.

Reid approached the back of a vehicle driven by Cheryl Tucker ("Tucker"). Tucker testified that she saw Reid's truck through her rearview mirror. According to Tucker, Reid's vehicle appeared to be traveling extremely fast and she believed the Reid truck was going to strike her. Tucker moved to the shoulder of the road. Tucker observed Reid's truck swerve into the northbound lane and strike a telephone pole.

As a result of the accident, Fisher suffered serious injuries. He was hospitalized for more than four months. He is now a "C-5 quadriplegic."

Principal and Agent

Vicarious Liability Doctrine

Fisher alleges that he was personally injured by the tortious physical conduct of Reid. Fisher further asserts that Reid is an agent of Townsends. Accordingly, Fisher seeks redress against Townsends, as the alleged principal of Reid, on the basis of vicarious liability--respondeat superior. Townsends' defense is that Reid was not its agent.

When a third-party plaintiff's legal theory is based upon vicarious liability, several types of relationships must be identified and distinguished: principal/agent; master/servant; employer/employee; agent-independent contractor and non-agent independent contractor. These distinctions are important in evaluating a defendant's liability to third parties who are harmed by the tortious physical act of another. In fact, the distinctions are often outcome determinative.

The principal/agent relationship is generic. "An agency relationship is created when one party...

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83 practice notes
  • Berman v. City of N.Y., 09-CV-3017 (ENV) (CLP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2012
    ...as either the debt buyer's agent (or "servant," under Delaware terminology) or as an independent contractor, Fisher v. Townsends, Inc., 695 A.2d 53, 57-60 (Del. 1997) (discussing difference between "servants" and "independent contractors" under Delaware law). The same is true under New York......
  • Eric M. Berman, P.C. v. City of N.Y., No. 09–CV–3017 (ENV)(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2012
    ...as either the debt buyer's agent (or “servant,” under Delaware terminology) or as an independent contractor, Fisher v. Townsends, Inc., 695 A.2d 53, 57–60 (Del.1997) (discussing difference between “servants” and “independent contractors” under Delaware law). The same is true under New York ......
  • BankUnited Fin. Corp. v. Fed. Deposit Ins. Corp. (In re BankUnited Fin. Corp.)
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • November 23, 2011
    ...consents to have another act on its behalf, with the principal controlling and directing the acts of the agent.” Fisher v. Townsends, 695 A.2d 53, 57–8 (Del.1997). 41. Based on this ruling I do not need to reach the Atherton issue raised by the Plaintiffs in their...
  • Williams v. Dann Marine Towing, LC, C.A. No. K18C-05-039 JJC
    • United States
    • Superior Court of Delaware
    • August 6, 2020
    ...F.2d at 1196 (citing Reed v. S. S. Yaka , 373 U.S. 410, 412–13, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) ).77 See Fisher v. Townsends, Inc. , 695 A.2d 53, 59 (Del. 1997) (explaining, in the agency context, that control is a factor to be considered almost universally by the trier of fact on a ca......
  • Request a trial to view additional results
83 cases
  • Berman v. City of N.Y., 09-CV-3017 (ENV) (CLP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2012
    ...as either the debt buyer's agent (or "servant," under Delaware terminology) or as an independent contractor, Fisher v. Townsends, Inc., 695 A.2d 53, 57-60 (Del. 1997) (discussing difference between "servants" and "independent contractors" under Delaware law). The same is true under New York......
  • Eric M. Berman, P.C. v. City of N.Y., No. 09–CV–3017 (ENV)(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2012
    ...as either the debt buyer's agent (or “servant,” under Delaware terminology) or as an independent contractor, Fisher v. Townsends, Inc., 695 A.2d 53, 57–60 (Del.1997) (discussing difference between “servants” and “independent contractors” under Delaware law). The same is true under New York ......
  • BankUnited Fin. Corp. v. Fed. Deposit Ins. Corp. (In re BankUnited Fin. Corp.)
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • November 23, 2011
    ...consents to have another act on its behalf, with the principal controlling and directing the acts of the agent.” Fisher v. Townsends, 695 A.2d 53, 57–8 (Del.1997). 41. Based on this ruling I do not need to reach the Atherton issue raised by the Plaintiffs in their...
  • Williams v. Dann Marine Towing, LC, C.A. No. K18C-05-039 JJC
    • United States
    • Superior Court of Delaware
    • August 6, 2020
    ...F.2d at 1196 (citing Reed v. S. S. Yaka , 373 U.S. 410, 412–13, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) ).77 See Fisher v. Townsends, Inc. , 695 A.2d 53, 59 (Del. 1997) (explaining, in the agency context, that control is a factor to be considered almost universally by the trier of fact on a ca......
  • Request a trial to view additional results

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