McKenzie v. Charlton

• Decision Date: 20 November 2018
• Docket Number: No. COA18-82,COA18-82
• Citation: 262 N.C.App. 410,822 S.E.2d 159
• Court: North Carolina Court of Appeals
• Parties: Kevin MCKENZIE, Adminstrator of the Estate of Yvonne Lewis, Plaintiff, v. Richard CHARLTON, individually, Richard Charlton, dba NY Homes II, APAC-Atlantic, Inc., d/b/a Harrison Construction and Reach for Independence, Inc., Defendants.

262 N.C.App. 410

822 S.E.2d 159

Kevin MCKENZIE, Adminstrator of the Estate of Yvonne Lewis, Plaintiff,

v.Richard CHARLTON, individually, Richard Charlton, dba NY Homes II, APAC-Atlantic, Inc., d/b/a Harrison Construction and Reach for Independence, Inc., Defendants.

No. COA18-82

Court of Appeals of North Carolina.

Filed: November 20, 2018

White & Stradley, PLLC, by J. David Stradley, Raleigh, and Lakota R. Denton, P.A., Asheville, for the Plaintiff-Appellant.

Davis and Hamrick, L.L.P., Winston Salem, by Ann C. Rowe, for Defendant-Appellee Reach for Independence, Inc.

Ball Barden & Cury P.A., Asheville, by Ervin L. Ball, Jr., for Defendant-Appellee Richard Charlton, individually, and dba NY Homes II.

DILLON, Judge.

This matter stems from a traffic accident in which Yvonne Lewis was struck and killed by an automobile being driven by Defendant Richard Charlton as Ms. Lewis was walking across a public street.

Plaintiff Kevin McKenzie, in his capacity as the administrator for Ms. Lewis' estate, filed this action against Mr. Charlton and against Defendant Reach for Independence, Inc. ("Defendant RFI"), whom Plaintiff alleges Mr. Charlton was working for at the time of the accident.

This present appeal is brought by Plaintiff from an interlocutory order in which the trial court granted partial summary judgment to Defendant RFI, concluding that Mr. Charlton was acting as an independent contractor and not as an employee of Defendant RFI at the time of the accident. After careful review of the record, we conclude that there was a genuine issue of material fact as to whether Defendant RFI is liable for Ms. Lewis' death under the doctrine of respondeat superior . We, therefore, reverse the order of the trial court and remand for further proceedings.

I. Background

Defendant RFI is a government-regulated provider of Medicaid-funded services to disabled individuals. Defendant RFI contracts with paraprofessional caregivers to provide these services. In late 2014, Defendant RFI entered into a contract with Mr. Charlton to serve as a paraprofessional caregiver for disabled patients.

In January 2015, Mr. Charlton's contractual obligations with Defendant RFI involved spending approximately forty (40) hours per week, providing one-on-one supervision of a certain disabled individual, hereinafter referred to as Mr. Smith¹ . At the time of the accident, Mr. Charlton was not providing caregiving services to or for anyone else either on behalf of Defendant RFI or otherwise.

On 8 January 2015, while Mr. Smith was a passenger in Mr. Charlton's car, Mr. Charlton struck Ms. Lewis as she was crossing a public street. Ms. Lewis later died as a result of the accident.

Plaintiff filed a wrongful death action against both Defendant RFI and Mr. Charlton, alleging negligence in the death of Ms. Lewis. Defendant RFI moved for summary judgment. After a hearing on the matter, the trial court granted the motion with respect to Plaintiff's wrongful death claim,² holding that Mr. Charlton was an independent contractor of Defendant RFI and, therefore, Defendant RFI was not liable under respondeat superior .

Plaintiff appeals.

II. Appellate Jurisdiction

Plaintiff is appealing from an interlocutory order which does not contain a Rule 54(b) certification. Therefore, Plaintiff's appeal is premature unless the order affects a substantial right. See Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291-92, 420 S.E.2d 426, 428 (1992). Following the reasoning of our Supreme Court in Bernick v. Jurden , we conclude that the order, indeed, does affect a substantial right: "[W]e hold that because of the possibility of inconsistent verdicts in separate trials, the order allowing summary judgment for fewer than all the defendants in the case before us affects a substantial right." Bernick v. Jurden , 306 N.C. 435, 439, 293 S.E.2d 405, 409 (1982).

III. Analysis

Plaintiff challenges the trial court's decision granting summary judgment in favor of Defendant RFI, in which the trial court held that Defendant RFI was not vicariously liable under respondeat superior . We review the trial court's summary judgment decision de novo , to determine whether, in the light most favorable to the non-moving party, the full record shows a genuine issue as to any material fact. Forbis v. Neal , 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007). Specifically, we consider (1) whether the agency relationship between Mr. Charlton and Defendant RFI was sufficiently akin to an employer-employee relationship such that respondeat superior would apply and (2) if so, whether Mr. Charlton was acting within the scope of that relationship at the time of the accident.

A. Nature of Agency Relationship

Under the doctrine of respondeat superior , a principal may be held vicariously liable for the torts of his agent. Our Supreme Court has held as a general rule that respondeat superior applies if the agent's relationship with his principal is akin to an employee rather than that of an independent contractor. See Cooper v. Asheville Citizen-Times Pub. Co. , 258 N.C. 578, 586-87, 129 S.E.2d 107, 113-14 (1963). Our task, here, is not to determine whether Defendant RFI should be treated as Mr. Charlton's employer for payroll tax purposes or in determining the applicability of the Workers Compensation Act. Rather, our task is to determine whether Defendant RFI should be treated as Mr. Charlton's employer for purposes of holding Defendant RFI vicariously liable for the torts committed by Mr. Charlton.

Our Supreme Court instructs that whether an agent is akin to an employee or is akin to an independent contractor "depends on the degree of control retained by the principal over the details of the work as it is being performed [by the agent]." Vaughn v. N.C. Dep't of Human Res. , 296 N.C. 683, 686, 252 S.E.2d 792, 795 (1979) (emphasis added); see also Gammons v. N.C. Dep't of Human Res. , 344 N.C. 51, 56-7, 472 S.E.2d 722, 725-26 (1996). One acts as an independent contractor where he is not accountable to his employer as to the manner in which he performs his work, but is only accountable "as to the result of his work." Cooper , 258 N.C. at 588, 129 S.E.2d at 114 (emphasis added).

Our Supreme Court instructs that the "vital test" in classifying whether a worker acts as an employee does not depend on whether his principal actually controls his work but whether his principal "has retained the right of control or superintendence over the contractor or employee as to details" of the performance of his work. Hayes v. Bd. of Trs. of Elon Coll. , 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944) (emphasis added). "[I]t is immaterial whether [the principal] actually exercises [his right of control]," so long as he has retained the right to do so. Cooper , 258 N.C. at 587, 129 S.E.2d at 113 ; see also Gammons , 344 N.C. at 57, 472 S.E.2d at 726 ("The controlling principal is that vicarious liability arises from the right of supervision and control." (emphasis added)).

And our Supreme Court instructs that an independent contractor may still be deemed an employee, for purposes of respondent superior , as to some of the work performed by him, if that principal exercises a sufficient degree of control as to that portion of the work .³

In conclusion, our Supreme Court's jurisprudence suggests that we are to determine the extent that Defendant RFI had the right to control Mr. Charlton's work with respect to Mr. Charlton's care of Mr. Smith.

Whether vicarious liability applies in a given agency relationship is "a mixed question of fact and law." Beach v. McLean , 219 N.C. 521, 525, 14 S.E.2d 515, 518 (1941). But where the facts are essentially established, then the issue is purely a question of law. Id. As we have held:

Where the facts are undisputed or the evidence is susceptible of only a single inference and a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor, but it is only where a single inference can reasonably be drawn from the evidence that the question of whether one is an employee or an independent contractor becomes one of law for the court.

Little v. Poole , 11 N.C. App. 597, 600, 182 S.E.2d 206, 208 (1971).

We have reviewed the contract between Mr. Charlton and Defendant RFI (the "Contract") and the other evidence in the record. For the reasons stated below, we conclude that Mr. Charlton was an "employee" of Defendant RFI in his care of Mr. Smith for purposes of respondeat superior .⁴ In reviewing the evidence that was before the trial court at summary judgment, we are guided by the cases cited above and by the eight factors considered by our Supreme Court in Hayes v. Board of Trustees of Elon College in determining whether one acts as an employee or as an independent contractor; namely, whether:

[t]he person employed

(a) is engaged in an independent business, calling, or occupation;

(b) is to have the independent use of his special skill, knowledge, or training in the execution of the work;

(c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis;

(d) is not subject to discharge because he adopts one method of doing the work rather than another;

(e) is not in the regular employ of the other contracting party;

(f) is free to use such assistants as he may think proper;

(g) has full control over such assistants; and

(h) selects his own time.

Hayes , 224 N.C. at 16, 29 S.E.2d at 140.

We are further guided by our Court's opinion in Rhoney v. Fele , in which we analyzed whether a registered nurse was an employee of a nurse staffing agency at the time the nurse was involved in a fatal car accident. Rhoney v. Fele , 134 N.C. App. 614, 518 S.E.2d 536 (1999). In Rhoney , the staffing agency recruited nurses to work at medical facilities short-term. Rhoney , 134 N.C. App. at 615, 518 S.E.2d at 538. If a facility needed a nurse for a particular shift, it would call the agency who would provide a nurse from the agency's pool. Id. On...