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 22nd day of February 2018, having considered Defendant Air Base 

Carpet Mart, Inc’s (hereinafter “Air Base’s”) motion for summary judgment, and 

Plaintiff Gioacchina 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 contracting with the 
2

homeowner for its installation, seeks summary judgment arguing that Mr. Cochran 

was an independent contractor and that no available exception makes Air Base 

vicariously liable for his alleged negligence. Ms. Randazzo counters that there are 

sufficient 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 that 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 IRS Form 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 from 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 material 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 nonmoving 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 or 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 pursuant 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 right 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 220”) 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 locality, 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 of 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 principal 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 single 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 held 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 regarding 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 against 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 However, 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 

11. Ms. Randazzo cites the Superior Court decision Colon v. Gannett17 in 

support of her position. That decision recognizes that the 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 agentindependent 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 Agency.”). 

14 Restatement (Second) of Torts § 409 (1965); see also Fisher, 695 A.2d at 58.

15 Chesapeake 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 WL 3090916 at *2 (Del. Super. July 26, 2012).

18 Id. at *2 (citing Restatement (Second) of Torts §§ 410–429)).
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the first part of the Fisher decision involving the master/servant issue. After oral 

argument, the Court referred the parties to the second part of the 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 independent 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 determination 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 performed 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 Air Base, installed it, and 

then collected money for it and returned that money to Air Base. An accident 

occurring within such a window of activities, 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 Restatement (Second) of Agency § 14 N (1958)(providing that 

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

respect to his physical conduct is an 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, the 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 does not 

find that Mr. Cochran’s delivery 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.”).