Reeder v. State Through Dept. of Social Services

• Decision Date: 29 May 1998
• Docket Number: No. S-96-937,S-96-937
• Citation: 254 Neb. 707,578 N.W.2d 435
• Parties: Randy REEDER, Appellant, v. The STATE of Nebraska THROUGH the DEPARTMENT OF SOCIAL SERVICES, Appellee.
• Court: Nebraska Supreme Court

Page 435

578 N.W.2d 435

254 Neb. 707

Randy REEDER, Appellant, v. The STATE of Nebraska THROUGH the DEPARTMENT OF SOCIAL SERVICES, Appellee.

No. S-96-937.

Supreme Court of Nebraska.

May 29, 1998.

Syllabus by the Court

1. Employer and Employee: Negligence: Liability. Under the doctrine of respondeat superior, an employer is held vicariously liable for the negligent acts of an employee committed while the employee was acting within the scope of the employer's business.

2. Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work 3. Employer and Employee: Independent Contractor: Master and Servant. Ordinarily, a person's status as an employee or an independent contractor is a question of fact. However, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.

subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the methods or means used.

4. Employer and Employee: Independent Contractor. There is no single test for determining whether one performs services for another as an employee or as an independent contractor, and the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. The right of control is the chief factor distinguishing an employment relationship from that of an independent contractor.

5. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

6. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent upon the facts in a particular situation.

7. Negligence. Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk.

8. Negligence. Foreseeability is a factor in establishing a defendant's duty.

Denzel R. Busick and Daniel R. Fridrich, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, for appellant.

Don Stenberg, Attorney General, and Royce N. Harper, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice.

Randy Reeder, a recipient of public assistance for home health care services, brought this action against the State of Nebraska through its Department of Social Services (DSS) pursuant to Nebraska's State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1996). Reeder contends that DSS is vicariously liable for the negligence of a nurse whom it approved to provide services for him. In the alternative, Reeder contends that DSS breached an independent duty to provide adequate nursing services. Reeder appeals from an order of the district court for Hall County entering summary judgment for DSS. We determine that while the district court correctly found as a matter of law that DSS owed no independent duty to provide nursing services to Reeder, it erred in entering summary judgment for DSS because of genuine issues of material fact with respect to Reeder's alternative theory of recovery based upon respondeat superior.

FACTUAL AND PROCEDURAL BACKGROUND

Viewing the evidence in a light most favorable to Reeder, as is required in appellate review of a summary judgment, the facts are as follows: On May 5, 1990, Reeder was in an automobile accident which left him paralyzed below the neck, with limited use of his hands. Reeder was released from the hospital on March 4, 1991, and, due to his disability, required home health care. Reeder learned DSS administers various programs, including the Aged and Disabled Medicaid Waiver program, through which state and federal funds are used to provide home and community-based services to elderly and disabled persons in Nebraska. Under these programs, individuals requiring assistance usually choose their own service providers, but if requested, DSS will furnish a list of potential providers. Before becoming eligible to receive compensation under programs administered by DSS, a service provider is required to complete certain documentation and obtain DSS approval. This process includes an interview with a DSS caseworker, during which the provider is given a manual detailing services covered by the program. In addition, the caseworker usually obtains references and conducts a police check on the provider.

that Sheri Perales, a licensed practical nurse (LPN), was seeking employment and asked her if she would be interested in supplying certain services for him. Perales accepted the job.

After agreeing to accept the position with Reeder, Perales completed the documentation necessary to be approved by DSS as a medicaid service provider in the capacities of personal care aide (PCA) and LPN. No special training was required to be a PCA, but before Perales could begin providing services to Reeder as an LPN, it was necessary for DSS to ensure that her Nebraska license was current. In the "Medical Assistance Provider Agreement[s]" which Perales signed in order to be a provider of services under programs administered by DSS, she agreed to follow DSS policies and procedures. The regulations applicable to LPN's define "[c]overed [s]ervices" as those "ordered by the client's physician based on medical necessity." 471 Neb. Admin. Code, ch. 13, § 002 (1990). The regulations define "[s]killed nursing services" as "those services provided by a registered nurse or a licensed practical nurse which s/he is licensed to perform. Private-duty nursing may be provided in the client's home or current living arrangement." Id. The regulations require DSS local office personnel to obtain the physician's order for private-duty nursing services, "[a]uthorize the number of hours to be worked based on the physician's order and the client's medical need[,]" and submit certain documentation. 471 Neb. Admin. Code, ch. 13, § 005 (1990). The regulations also specify billing and payment procedures.

In March 1991, DSS obtained an order from Reeder's physician which stated that he required the services of an LPN for 1 to 2 hours per day and a PCA for 4 to 5 hours per day. Subsequently, DSS developed a care plan for Reeder detailing the types and frequency of services required. Beyond the terms of the care plan, DSS allowed Reeder and Perales to decide the details of their arrangement, such as the hours Perales would perform her duties.

Perales testified that she believed DSS to be her employer, but she also stated that during the time she was paid by DSS, she was self-employed. Perales also testified that DSS caseworker Dorelle Wilson was her supervisor and that Wilson "assured that ... the care was given and [Reeder] had somebody there for his needs." Perales testified that occasionally Wilson visited Reeder's home to "make sure things were going okay." If Perales had any problems, she would notify Wilson and request assistance. Perales also notified Wilson if she needed to work more hours than were approved under the care plan, because additional hours had to be approved in order to be reimbursed by DSS. Paula Greenfield, a DSS supervisor, testified that Perales was not prohibited from performing additional, noncovered services for Reeder, but that if Perales did so, Reeder was responsible for paying her.

Greenfield testified that DSS is concerned about the safety of its clients. DSS conducts police checks before approving care providers and refuses to use a provider in the future if DSS becomes aware of any improper activity. DSS monitors the activities of care providers by reviewing the timesheets submitted with their bills. The timesheets include a brief statement of what services were performed in the billing period and are signed by both the provider and the client. In the present case, Perales was paid by the hour. No income taxes were withheld from her paychecks, but Social Security and FICA DSS considered medicaid service providers such as Perales to be independent contractors. Providers received no insurance or other benefits and were not paid for overtime, holidays, or sick days. Greenfield testified that DSS was an "agent for monitoring and payment" and for distributing funds under government programs.

taxes were paid by the State for both Perales and Reeder.

In May 1991, while Perales was providing services to Reeder, he developed decubitus ulcers on his heels. Reeder and Perales decided to take Reeder to a podiatrist for treatment of this condition. Perales notified Wilson that Reeder had been seen by the podiatrist regarding the decubitus ulcers. Perales followed the podiatrist's orders in caring for Reeder. The ulcers never healed properly, and an infection developed. Reeder underwent a lengthy period of hospitalization and treatment, and may require amputation of his feet.

On December 30, 1993, Reeder filed suit against DSS...