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ARIZONA COURT IMPOSES VICARIOUS LIABILITY
ON AN EMPLOYER OF AN INDEPENDENT CONTRACTOR
A recent Arizona appellate case has held that a business may be liable for the tort of its independent contractor under the theory of respondeat superior. The court examined two issues to determine that Safeway was liable for the tortious acts of the security firm: (i) the control exercised by Safeway over the security firm and (ii) the nature of the work being performed by the security firm.
In Simon v. Safeway, 517 Ariz. 300, 173 P.3d 1031 (Ariz. App. 2007), the Safeway grocery store chain and the security firm (the independent contractor) were sued for damages after the Plaintiff was detained on suspicion of shoplifting. The Plaintiff asserted that Safeway was vicariously liable for the tort because a master-servant relationship existed between Safeway and the security firm. The trial court had granted Safeway summary judgment and denied the Plaintiff more time to investigate the nature of the relationship between Safeway and the security firm.
The Court of Appeals reversed and determined that it was possible that a master-servant relationship existed between Safeway and the security firm, even though the security firm was an independent contractor. Arizona case law imposes what is known as a “right to control” test in determining whether a master-servant or independent contractor relationship exists. If the employer has the right to determine how the independent contractor performs the work that the independent contractor is paid to perform, instead of allowing that contractor to use its discretion and materials to perform the work, then a master-servant relationship has likely been formed. See Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138 (1990); compare Currie v. Sechrist, 119 Ariz. 466, 581 P2d 700 (App. 1978). Plaintiff further contended that Safeway had a non-delegable duty to provide safe premises for its business invitees. The Court of Appeals agreed. The Court analyzed Restatements (Second) of Torts § 344 (1965), which states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons… and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or likely to be done.
The Court of Appeals analyzed the Restatement with two cases that hold that the landowner’s duty of care to business invitees encompasses activities on the land and that this is not limited to dangerous conditions. Moreover, when Safeway voluntarily assumed the duty to provide security services within its stores, it assumed that duty within the context of this already heightened duty that it owed to its business invitees. The Court reasoned:
Safeway cannot now disclaim liability merely because the individuals it permitted to interact so closely with its customers had been hired by an independent contractor… Therefore we hold that when, as here, a business owner assumes a duty to provide security services, that duty is nondelegable, and the owner will not be insulated from liability for the tortious acts of security personnel hired as independent contractors.
While this opinion is consistent with conclusions reached by other jurisdictions, it is significant because it challenges commonly held conceptions regarding independent contractors and the theory of respondeat superior. The case also expands the concept of “nondelegable duty” beyond inherently dangerous conditions and streets/streetlighting (the two areas which have been addressed by the courts in Arizona).
While not every independent contractor relationship that one enters into will constitute a master-servant relationship, giving rise to vicarious liability for tortious acts of the independent contractor, one should continue to be cautious over (i) the level of control it exercises over an independent contractor and (ii) the nature of the work being performed by the independent contractor.
THE FOREGOING IS MERELY A PARTIAL
SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL
OPINION.
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