Luedtke v. Arizona Family Restaurants of Tucson, Inc., 2

• Citation: 763 P.2d 262,158 Ariz. 442
• Decision Date: 31 May 1988
• Docket Number: No. 2,CA-CV,2
• Parties: Patricia Dawn LUEDTKE, Plaintiff/Appellant, v. ARIZONA FAMILY RESTAURANTS OF TUCSON, INC., dba The Ice Cream Man, an Arizona corporation; and Vernon Lee Leighton, an unmarried man, Defendants/Appellees. 87-0298.
• Court: Court of Appeals of Arizona

Page 262

763 P.2d 262

158 Ariz. 442

Patricia Dawn LUEDTKE, Plaintiff/Appellant, v. ARIZONA FAMILY RESTAURANTS OF TUCSON, INC., dba The Ice Cream Man, an Arizona corporation; and Vernon Lee Leighton, an unmarried man, Defendants/Appellees.

No. 2 CA-CV 87-0298.

Court of Appeals of Arizona Division 2, Department A.

May 31, 1988.

Review Granted on Issues Nos. 1 and 4, and Denied on Remaining Issues Nov. 8, 1988.

Alpert, Fein & Hameroff, P.C. by James A. Fein, Tucson, for plaintiff/appellant.

Jones, Skelton & Hochuli by Edward G. Hochuli and William J. Schrank, Phoenix, for defendants/appellees.

OPINION

HOWARD, Presiding Judge.

This is an appeal from a defense verdict in a wrongful death action. The plaintiff is the mother of the deceased, Dwayne Luedtke, Jr., who was six years old at the time of his death. The suit was brought against the appellees Arizona Family Restaurants, dba The Ice Cream Man, and Vernon Leighton, the lessee and operator of the ice cream truck which was owned by Arizona Family Restaurants.

On the day of the accident, Vernon Leighton was driving the ice cream truck in a neighborhood in which the Luedtkes resided. He was hailed by the little boy who was across the street standing with his mother. Leighton parked his ice cream truck approximately two and one-half feet from the curb and turned on the left hand signal. The little boy went across the street to the ice cream truck by himself while his mother stood on the other side watching. The child purchased a popsicle from Leighton, walked in front of the vehicle, appeared to look in both directions, and then walked out into the street. He was struck and killed by a car driven by Margaret Crickett.

Leighton testified that he did not work for The Ice Cream Man, but rather that he was self-employed and that he was his own boss. Leighton leased a truck from The Ice Cream Man for $16.60 per day or $100 per week. The van was equipped with a music box used to attract the attention of potential customers. Leighton was responsible for purchasing his own ice cream and his gasoline. An individual vendor, such as Leighton, was required under the lease agreement to keep his truck clean and to purchase all ice cream from The Ice Cream Man. Leighton had no supervisor. He was given a suggested route but he was not required to adhere to that route and could have gone anywhere in Tucson. The Ice Cream Man did not share in any of Leighton's profits or have the right to control the manner or method in which the ice cream products were sold.

The trial court directed a verdict in favor of Arizona Family Restaurants, and the case was submitted to the jury only against the defendant Leighton. Further facts will be set forth as they relate to the issues under discussion.

Plaintiff contends the trial court erred in the following ways: (1) directing a verdict in favor of Arizona Family Restaurants on the issue of respondeat superior; (2) directing a verdict in favor of Arizona Family Restaurants on the issue of independent liability; (3) refusing to direct a verdict in favor of the plaintiff on the issue of contributory negligence; (4) failing to admit evidence of insurance; (5) failing to give an attractive nuisance instruction; (6) giving an instruction regarding an open and obvious danger; (7) failing to give an instruction regarding negligence per se; (8) disclosing to the jury that defendant Leighton was deceased; and (9) denying plaintiff's motion for a new trial.

RESPONDEAT SUPERIOR

Plaintiff contends that the trial court erred in directing a verdict in favor of Arizona Family Restaurants on the issue of its liability under the doctrine of respondeat superior. She points to the following evidence to show that there was a jury issue as to Arizona Family Restaurants' liability for Leighton's acts: that the Arizona Family Restaurants assigned its drivers a route; required them to keep their vehicles clean; required them to purchase all supplies from the company; carried insurance on the vehicles; installed music boxes; placed decorative markings on the trucks; and performed all maintenance and repairs.

Whether considered separately or together, these facts do not raise an issue as to the vicarious liability of Arizona Family Restaurants. The ultimate test of whether one is acting for another as a servant or independent contractor is whether he is subject to the other's control or right to control the manner in which he reaches the desired result. Consolidated Motors v. Ketcham, 49 Ariz. 295, 66 P.2d 246 (1937). An independent contractor exercises control over the means and methods of work. Maxey v. Johnson, 29 Ariz. 452, 242 P. 866 (1926). There is no evidence in this case that Arizona Family Restaurants had any control over the details of Leighton's work. He could work whatever hours he wanted and, even though he had a designated area, he could have gone anywhere in Tucson. He was free to employ any means that he desired in selling his ice cream. The fact that he had to buy the ice cream from Arizona Family Restaurants shows no right of control over the details of Leighton's work. The fact that the vehicle is owned and maintained by American Family Restaurants does not show any right of control over the details of Leighton's work. That Arizona Family Restaurants carries liability insurance on the vehicle does not show any right to control. As owner of the vehicle, Arizona Family Restaurants was required by Arizona's Financial Responsibility Act to carry a policy of liability insurance. See A.R.S. § 28-1233. ¹

INDEPENDENT LIABILITY

Plaintiff contends that the trial court erred in granting a motion for directed verdict in favor of Arizona Family Restaurants on the issue of independent liability. Plaintiff relies on the case of Wilson v. Good Humor Corporation, 757 F.2d 1293 (D.C.Cir.1985). In that case the court held that an ice cream company could be liable under the "peculiar risk" exception to the general rule regarding torts of independent contractors. This doctrine is found in Restatement (Second) of Torts § 413 (1965) which states:

"One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."

We do not find the Wilson case to be on point. In Wilson the evidence was that Good Humor had, until 1980, maintained a traditional employer-employee relationship with its sales personnel. It owned and maintained its ice cream trucks and employed drivers to sell its products. During this period Good Humor recognized that curbside sales of ice cream created special hazards for its customers, especially children. Accordingly, the company conducted a vast safety program including on-site safety training, safety bulletins, periodic slide shows, and the circulation of a general safety manual. The Good Humor employees were admonished to refrain from selling in locations that required customers to cross busy roads and, in any event, to assist children in crossing the street. The evidence also established shortly before the subject action Good Humor had changed its structure so as to employ independent contractors to sell ice cream and it dropped its safety programs and bulletins. However, Good Humor neither warned its independent contractors of the known peculiar risk nor took any safety precautions whatsoever. In holding Good Humor liable, the court expressly and emphatically stated that its holding was based on Good Humor's specific knowledge as evidenced by its prior safety practices and the peculiar facts of that case. The holding in Wilson was predicated upon the unusual circumstances surrounding Good Humor's recent conversion to an independent contractor operation, its detailed knowledge of the special risk to children involved in curbside ice cream vending and its refusal to take any steps aimed at showing that special precautions had been taken to guard against those risks.

The trial court did not err in directing a verdict on the issue of independent liability in this case.

CONTRIBUTORY NEGLIGENCE

The trial court instructed the jury on the effect of the contributory negligence, if any, of both the plaintiff and the deceased. The plaintiff contends the trial court erred in allowing the jury to consider evidence and in denying her motion for a directed verdict on the issue of contributory negligence. We do not agree.

As far as the deceased is concerned, there is evidence that he looked both ways prior to going out in the street. The fact remains that there was an automobile to be seen if he had exercised a proper lookout. The fact that the deceased was only six years old at the time of the accident does not, as a matter of law, foreclose the possibility that he was contributorily negligent. The decedent's young age only means that his conduct is to be judged according to that of a reasonable child of similar age, intelligence and experience under the circumstances. See First National Bank of Arizona v. Dupree, 136 Ariz. 296, 665 P.2d 1018 (App.1983); Ruiz v. Faulkner, 12 Ariz.App. 352, 470 P.2d 500 (1970). The negligent conduct of the child can be used by the trier of fact to offset or reduce the damages being claimed by the wrongful death statutory beneficiaries. Spillios v. Green, 137 Ariz. 443, 671 P.2d 421 (App.1983).

As for the plaintiff, there remained a jury question as to her negligence. In particular, that question was whether she should have permitted her son to cross the street by himself, while fully aware of the fact that cars travel too fast on the street. Furthermore, it...