Peterson v. Pittman

• Decision Date: 23 July 1986
• Docket Number: No. 84-1733,84-1733
• Citation: 391 N.W.2d 235
• Parties: Alan PETERSON, Appellee, v. Virtus PITTMAN, Appellant.
• Court: Iowa Supreme Court

Page 235

391 N.W.2d 235

Alan PETERSON, Appellee, v. Virtus PITTMAN, Appellant.

No. 84-1733.

Supreme Court of Iowa.

July 23, 1986.

David L. Phipps, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellant.

Thomas L. McCullough, of McCullough Law Firm, Sac City, for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, SCHULTZ, and WOLLE, JJ.

HARRIS, Justice.

Plaintiff, a county employee, was working at a bridge site when he was severely injured as a result of actions by defendant, a dragline operator, who was also working on the project. The critical question is whether defendant was an agent or employee of Sac County at the time of the accident or whether he was an independent contractor. The trial court determined defendant was an independent contractor. Other issues involve various procedural and evidentiary rulings. The court of appeals affirmed the trial court and, although we do not entirely subscribe to its rationale, we do too.

Defendant Pittman was engaged by Sac County to furnish a dragline he owned and to operate it in connection with the repair of a bridge. At the time of the accident it was necessary to lift a bridge cap which had been incorrectly positioned due to a mistake by county personnel. Plaintiff and another worker had attached chains to the cap and the other worker left the scaffolding on which they had been working. Defendant mistakenly assumed plaintiff had also left.

The county foreman in charge of the project then signaled defendant to activate the dragline to lift the cap. When this was done the cap came loose at one end but at first remained stuck at the other end. As the second end broke free, it jerked upward and then came down. As a result plaintiff's hand was crushed between the cap and the piling.

Plaintiff brought this action against Pittman only; he did not sue the county or the supervising foreman. A jury found the accident resulted forty percent from plaintiff's negligence and sixty percent from defendant's negligence. It fixed plaintiff's damages at $150,000. A judgment was accordingly entered against defendant for $90,000 plus interest.

I. By an amended answer defendant alleged he was Sac County's employee or agent, a claim which, if established, might add two decisive arrows to defendant's quiver. First, under Iowa Code section 85.20 (1985) the rights of an injured employee (except for gross negligence) to sue for the negligence of a co-employee are limited to those prescribed by the worker's compensation law. Secondly, Iowa Code section 613A.5 provides a special limitation of actions for suits against local governmental bodies, including counties. The action is lost unless a written notice of the claim is furnished within sixty days of the injury. There is no claim such a notice was given here.

The trial court refused to submit for the jury's consideration the defendant's claim that he was an employee of the county. The court incorrectly determined that the notice requirements of section 613A.5 were inappropriate in tort suits, such as this one, brought only against individual governmental employees. This determination may have been prompted by our holding to that effect in Flynn v. Lucas County Memorial Hospital, 203 N.W.2d 613, 615 (Iowa 1973). But our holding in Flynn was overturned by a legislative amendment to the statute. 1974 Iowa Acts ch. 1263, § 5. Following the amendment the notice requirements of section 613A.5 apply in suits brought against municipal employees acting as such, without regard to whether the municipality is a party to the suit. Farnum v. G.D. Searle & Co., 339 N.W.2d 392, 395 (Iowa 1983).

Neither do we subscribe to a characterization of the ruling which refused to submit defendant's two statutory defenses. The court first correctly observed that neither the failure of the notice requirements under section 613A.5 nor the exclusivity provisions of section 85.20 would be implemented unless defendant was a county employee. The trial court's extensive explanation of its ruling included the following comment:

This court finds as a matter of law that [defendant] was not a co-employee in the sense ... used in [section 85.20 (where gross negligence is the standard for recovery) ].

The remark should neither be overread nor taken out of context. At the time it was made the court was confronted with a legal question: whether the defendant had made out a jury case on his factual claim (i.e., he was a county employee) which formed the basis for his two affirmative defenses.

The burden was on defendant to make such a factual showing. See Iowa R.App. P. 14(f)(5). We think the trial court's refusal to submit the two defenses was correct because the evidence simply would not support a finding that defendant was a county employee rather than an independent contractor.

The test for determining whether a person is an independent contractor or an employee is dependent upon many factors. Beatty v. Halpin, 267 F.2d 561, 564 (8th Cir.1959). The first inquiry is "who has the right of control." Miller v. Component Homes, Inc., 356 N.W.2d 213, 216-17 (Iowa 1984); see also Greenwell v. Meredith Corp., 189 N.W.2d 901, 904-05 (Iowa 1971) (court looks to "who has the right to control the physical conduct of the service"; if control "is vested in the person giving [the] service, he is an independent contractor; if it is vested in the employer, then the person rendering the service is an employee"); 41 Am.Jur.2d Independent Contractors § 6 (1968) ("[T]he most important test in determining whether a person employed to do certain work is an independent contractor or a mere servant or employee is the control over the work which is reserved by the employer.").

Control is however not conclusive. Although it is the primary consideration, other factors are also relevant. See Gabrielson v. State, 342 N.W.2d 867, 869 (Iowa 1984) ("[R]esponsibility for payment of wages is ... one of the factors to be considered in determining whether the relationship of employer-employee exists."); Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 505 (Iowa 1981); Restatement (Second) of Agency § 220 (1958) (intention of parties is one consideration in determining existence of employer-employee relationship); 41 Am.Jur.2d Independent Contractors § 22 (1968) (employer's withholding of federal income taxes and deduction of social security "are circumstances to be considered along with all others in looking at the relationship").

There is no dispute about the underlying facts upon which defendant urges his claim to have been a county employee. He is not on the county payroll; he is a part-time farmer who owns and operates a line of earth-moving equipment. He stated he owned two...