IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GIOACCHINA RANDAZZO, : C.A. No. K16C

- 07

- 024 JJC

:
v. :
: JAMES S. COCHRAN, and AIR : BASE CARPET MART, INC. : d/b/a Carpet & Tile Mart, :
: Defendants. :

ORDER Submitted: February 12 , 2018 Decided: February 22 , 2018

On this 22 nd day of February 2018, having considered Defendant Air Base Carpet Mart, Inc’s (hereinafter “Air Base’s”) motion for summary judgment, and
Plaintiff G ioacchina Randazzo’s (hereinafter “Ms. Randazzo’s”) response in opposition, it appears that:
1. The matter involves an August 12, 2014 automobile accident. Ms.
Randazzo alleges that Defendant James S. Cochran (hereinafter “Mr. Cochran”) negligently caused her significant injury. At the time of the collision, Mr. Cochran was in route from Air Base’s business location to install carpet at an Air Base
customer’s home. Ms. Randazzo alleges, inter alia , that Mr. Cochran was rushing to deliver carpet because rain was approaching and because the carpet did not fit in
his van and extended from the rear of the vehicle

.
2. Air Base, the company supplying the carpet and contractin g with the2

homeowner for its installation, seeks summary judgment arguing that Mr. Cochran was an independent contractor and that no available exception makes Air Base
vica riously liable for his alleged negligence. Ms. Randazzo counters that there are

su fficient issues of fact as to both threshold status and as to multiple exceptions to the general rule against independent contractor vicarious liability.
3. In support of Air Base’s motion, both Mr. Cochran and Air Base submitted affidavits stating tha t they considered Mr. Cochran to be an independent contractor. Air Base also points, inter alia , to the following facts of record in support of its argument : (1) Mr. Cochran entered into a written independent contractor agreement to perform carpet installations for Air Base; (2) Mr. Cochran supplied his own tools and equipment, and the van involved in the accident; (3) he was paid by the job and
receives an IR S F orm 1099 for the income he earned from Air Base; and (4) twenty percent of his work came from sources other than Air Base. 4. Facts of record relied upon by Ms. Randazzo in opposing the motion include: (1) eighty percent of Mr. Cochran’s work came fr om one company, Air Base and he has performed work for Air Base for ten years; (2) Air Base sold the carpet to customers and had Mr. Cochran deliver and install it; (3) Air Base gave Mr. Cochran a window of time within which the carpet was to be installed; and (4) pursuant to Mr. Cochran’s written contract with Air Base, he was responsible for collecting the money for the carpet and returning it to Air Base.
5. Summary judgment may only be granted if the record shows that there is no genuine issue of mat erial fact and the movant is entitled to judgment as a matter
of law. 1 The Court must view the evidence in the light most favorable to the non

moving party. 2 The burden of proof is initially on the moving party. 3 However,

1 Super. Ct. Civ. R. 56(c); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979). 2 Brozaka v. Olson , 668 A.2d 1355, 1364 (Del. 1995). 3 Super. Ct. Civ. R. 56(e); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).3

if the movant meets his o r her initial burden, then the burden shifts to the non

- moving party to demonstrate the existence of material issues of fact. 4 The non

- movant’s evidence of material facts in dispute must be sufficient to withstand a motion for judgment as a matter of law and must be sufficient to support the verdict of a rational jury. 5
6. The threshold issue here is Mr. Cochran’s status. If Mr. Cochran was a servant of Air Base, then Air Base will be vicariously liable for any harm caused by his negligent actions pu rsuant to the doctrine of respondeat superior . If he was an independent contractor, as a general rule (but subject to several exceptions) Air Base is not liable for his negligent actions. Depending upon the right of control capable of being exercised by the principal, those performing contractual services for another are characterized as either servants or independent contractors. 6 If the principal assumes the right to control the time, manner and method of executing the work, as distinguished from the r ight merely to require certain definite results in conformity with the contract, a master/servant type of agency relationship exists. 7

7. In determining whether one acting for another is a servant or an independent contractor, the Delaware Supreme Court recognized Section 220 of the Restatement (Second) of Agency (hereinafter “Section 22 0 ”) as an authoritative source for guidance. 8 The factors to be considered in deciding whether a tortfeasor is a servant or an independent contractor are: (a) the extent of control, which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the lo cality, the work is usually done under the direction of the employer or by a specialist

4 Id . at 681 (citing Hurtt v. Goleburn , 380 A.2d 134 (Del. 1974)). 5 Lum v. Anderson , 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004)

. 6 Fisher v. Townsends, Inc. , 695 A.2d 53, 59 (Del. 1997). 7 Id . ( citing Gooden v. Mitchell , 21 A.2d 197, 200

– 01 (Del. Super. 1941)). 8 Id

.4

without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place o f work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the princip al is or is not in business. 9

8

. In determining whether a person is a servant or independent contractor, the Delaware Supreme Court recognized that no si ngle rule exists to determine whether a given relationship is that of a servant or an independent contractor. 10 Each case depends on its own facts and the determination is ordinarily made by the
factfinder. 11 Here, both contracting parties attest that they intended for Mr. Cochran
to be an independent contractor. That is certainly a factor weighing in favor of his independent contractor status. However, the “label by which parties to a relationship designate themselves is not controlling.” 12

9 . Without exhaustively reviewing the factors in this case, the Court acknowledges that Air Base forcefully and correctly emphasizes many factors favoring Mr. Cochran’s independent contractor status. Nevertheless, a lesser extent of Section 220 factors favor fixing his status as a servant. They do so to an extent sufficient to generate a material issue of fact for the jury to consider. For instance, Mr. Cochran testified that the majority of his work is for Air Base; his written contract with Air Base provides that after installing the carpet, he is to collect payment from the customer and deliver the payments to Air Base; he reports to Air Base to receive his assigned installations; and, he has performed work for Air Base

9 Restatement (Second) of Agency § 220 (1958). 10 Fisher , 695 A.2d at 59 (Del. 1997). 11 Id

. 12 Id. at 60 (quoting Singleton v. International Dairy Queen, Inc., 332 A.2d 160, 163 ( Del. Super. 1975) )

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for over ten years. As the Supreme Court h eld in Fisher , under circumstances requiring a balancing of Section 220 factors, the jury will need to decide the question of whether Mr. Cochran was a servant or an independent contractor. 13 In this regard, a genuine issue of material fact exists regardin g whether Mr. Cochran was in a servant or independent contractor relationship with Air Base. Summary judgment for that reasons is inappropriate.
10

. Secondly, in addition to the threshold status issue, there is one exception to the general rule agains t vicarious liability that alternatively generates a triable issue of fact in this case. That is, there is an issue as to whether Mr. Cochran acted as an agent

- independent contractor at the time of the collision. Generally, an employer will not be liable for the torts of an independent contractor which are committed in the performance of the contracted work. 14 The employer's freedom from liability is premised on his lack of control over the manner in which the contractor performed his work. 15 Howev er, the rule can be said to be “general” only in the sense that it is applies when no good reason is found for departing from it. 16

1 1 . Ms. Randazzo cites the Superior Court decision Colon v. Gannett 17 in support of her position. That decision recognizes that th e general rule has been substantially eroded by a number of exceptions. 18 The parties, through their motion and supplemental argument requested by the Court, addressed the issue of whether or not there was an issue of fact regarding Mr. Cochran’s potential status as an agent

independent contractor. Initially, the parties primarily focused their arguments on

13 Id. (holding that the Superior Court should instruct the jury to decide the question of whether the subject was a servant or independent contractor by “specifically considering the non

- exclusive ‘matters of fact’ set forth in Section 220 of the Restatement (Second) of Agenc y .”). 14 Restatement (Second) of Torts § 409 (1965); see also Fisher , 695 A.2d at 58. 15 Chesapea ke and Potomac Tel. Co. of Md. v . Chesapeake Utils. Corp. , 436 A.2d 314, 324 (Del. 1981). 16 Id . (citing Restatement (Second) of Torts § 409 cmt. b). 17 Colon v. Gannett Co., Inc. , 2012 W L 3090916 at *2 (Del. Super. July 26, 2012)

. 18 Id. at *2 ( citing Restatement (Second) of Torts §§ 410

– 429)).6

the first part of the Fisher decision involvi ng the master/servant issue. After oral argument, the Court referred the parties to the second part of th e Fisher decision and invited supplemental written submissions.
12

. Fisher held that although a person cannot be a servant and an independent contractor, a person can be an independent contractor and an agent. 19 Namely, the Delaware Supreme Court held in that decision that a principal can be vicariously liable if the tortfeasor is an “agent

- independent contractor.” 20 If the owner or
contractee’s control or direction dominates the manner or means of the work performed, the non

- agent status of the indepen dent contractor can be destroyed and the independent contractor becomes an agent capable of rendering the principal vicariously liable for the acts of the independent contractor. 21 Moreover, in Fisher
, the Delaware Supreme Court held that “[t]his determina tion is ‘almost entirely one
of fact.” 22

13 . Here, after considering the facts of record, the Court finds that there are also sufficient facts to create a triable issue of fact regarding whether Air Base dominated the manner or means of the work perform ed to a sufficient degree to impose vicarious liability upon Air Base. Facts of record that support Mr. Cochran’s agent

- independent contractor status include that he picked up Air Base’s supplied carpet, delivered it within an installation window set by A ir Base, installed it, and then collected money for it and returned that money to Air Base. An accident occurring within such a window of activi ti es, given the Delaware Supreme Court’s clear direction that this issue is “almost entirely one of fact,” must also be evaluated

19 Fisher , 695 A.2d at 61; see also Rest atement (S econd) of A gency § 14 N (1958)(providing that

“ [o]ne who contracts to act on behalf of another and subject to the other’s control except with

r espect to his physical conduct is a n agent and also an independent contractor.”). 20 Id

. 21 Id

. 22 Id

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by the jury if the jury first determines that Mr. Cochran was an independent

contractor. 23 14. Finally, t he evidence highlighted through the motion and response
demonstrates no material issues of fact regarding any other exception. For instance,
Ms. Randazzo advocates the applicability of the exception providing vicarious liability when independent contractors engage in work creating an unreasonable risk of bodily harm to others

. 24 After considering the facts of record, the Court do es not find that Mr. Cochran’s deliver y of carpet creates a genuine issue of material fact under the inherently dangerous work exception

. WHEREFORE, for the aforementioned reasons, Defendant Air Base’s Motion for Summary Judgment is DENIED on the issue of whether Mr. Cochran is a servant or an independent contractor and whether, if he was an independent contractor, he was Air Base’s agent at the time of the accident nevertheless

. IT IS SO ORDERED

/s/Jeffrey J Clark Judge

23 Id. 24 See Restatement (Second) of Torts § 427 (providing that “ one employee is an independent contractor when the employer knows the work is inherently dangerous is subject to liability for physical harm caused by the contractor’s failure to be reasonably precautious.”).