NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SERGIO ROMERO PACHECO, Plaintiff/Appellant,

v.

KATHRYN COFFMAN, Defendant/Appellee.

No. 1 CA-CV 23-0107

Appeal from the Superior Court in Maricopa County

No. CV2020-006263

The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

The Law Office of Christos Agra, PLC, Phoenix

By Christos Agra

Counsel for Plaintiff/Appellant

Resnick & Louis, PC, Scottsdale

By Ellen S. Levy, Derek J. Warner

Counsel for Defendant/Appellee

FILED 11-16-2023
PACHECO v. COFFMAN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, 

in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.

W E I N Z W E I G, Judge:

¶1 Sergio Romero Pacheco appeals the superior court’s entry of 

summary judgment for Kathryn Coffman (“Aunt”) on his claim for 

negligent selection of a contractor.

FACTS AND PROCEDURAL BACKGROUND

¶2 Aunt wanted to renovate her cabin in Munds Park. Among 

her plans, Aunt wanted to demolish the fireplace, and she discussed the 

idea with her nephew Jeffrey Simbric (“Nephew”). Nephew volunteered 

to help Aunt at no charge. Aunt accepted his offer. There was no written 

contract. Aunt assumed she would reimburse Nephew for his expenses

and Nephew would hire outside help.

¶3 Aunt had no knowledge about or experience with fireplace

demolition, and she maintained no control over the method of doing the 

work. She knew that Nephew did not possess a contractor’s license, and 

she knew he had once been sanctioned for contracting without a license.

¶4 Nephew brought three men to the cabin in June 2018, 

including Pacheco, to demolish the fireplace. Aunt was not present. She 

never met Pacheco or spoke to him. It’s unclear what relationship, if any, 

existed between Pacheco and Nephew before the Munds Park renovation, 

but Pacheco knew that Nephew had no contractor’s license and knew he

had once been sanctioned for contracting without a license.

¶5 At the outset, Pacheco used a sledgehammer to strike the 

bottom of the fireplace, which collapsed on his head. He needed almost 

three dozen stitches and later developed vision issues.

¶6 The parties disagree about the facts that led to this accident. 

Nephew insists he and a second crew member warned Pacheco that a

fireplace must be demolished from the top down, but Pacheco insisted on 

starting at the bottom. Pacheco contends that Nephew directed him to start 

at the bottom.
PACHECO v. COFFMAN

Decision of the Court

3

¶7 Pacheco sued Aunt and Nephew for negligence, and sued 

Aunt for negligent selection of a contractor. Aunt and Pacheco filed dueling 

motions for summary judgment. The superior court granted summary 

judgment to Aunt on all claims and dismissed the case against her with 

prejudice. Pacheco timely appeals. We have jurisdiction. See A.R.S. § 12-

2101(A)(1).1

DISCUSSION

¶8 We review de novo the entry of summary judgment. Andrews 

v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). Summary judgment is generally not 

appropriate in negligence actions, Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 

518 (1982), but will be granted when the record shows “no genuine dispute 

as to any material fact and the moving party is entitled to judgment as a 

matter of law.” Ariz. R. Civ. P. 56(a).

¶9 Pacheco raises two arguments on appeal. He first argues that 

Aunt is directly liable to him because she negligently selected a contractor

(who then hired Pacheco) to demolish the fireplace. He next contends that 

an agency relationship existed between Aunt and Nephew. We examine 

each argument in turn.

I. Negligent Selection

¶10 A principal is generally not vicariously liable for the 

negligence of an independent contractor. Ft. Lowell-NSS Ltd. P’ship v. Kelly, 

166 Ariz. 96, 101 (1970). Arizona law recognizes an exception to this rule

when a principal negligently selects an independent contractor. Cordova v. 

Parrett, 146 Ariz. 79, 81–82 (App. 1985); Restatement (Second) of Torts § 411 

(1965).

¶11 According to the Restatement (Second) of Torts § 411, a 

principal may be liable for “physical harm to third persons caused by his

failure to exercise reasonable care to employ a competent and careful 

contractor” if the work involves “a risk of physical harm unless it is 

skillfully and carefully done.” Restatement (Second) of Torts § 411 (1965); 

Cordova, 146 Ariz. at 81 (explaining that § 411 “imposes liability upon the 

employer of an independent contractor for failure to exercise reasonable 

care in employing a competent contractor if the work to be performed 

requires skill in order to avoid the risk of harm to others.”). To prevail on 

a negligent selection claim, the plaintiff must prove the defendant knew or 

1 Nephew is not a party to this appeal.
PACHECO v. COFFMAN

Decision of the Court

4

should have known a contractor was not competent to perform the work.

See Restatement (Second) of Torts § 411, cmt. b & illus. 4.

¶12 The superior court did not err when it dismissed Pacheco’s 

negligent selection claim at summary judgment. For starters, Pacheco 

contends he was Nephew’s employee. If true, then Pacheco’s remedy for 

work-related injuries is through the workers’ compensation statute. A.R.S. 

§ 23-1022. Because Nephew was uninsured, Pacheco was able to sue 

Nephew in civil court, Haralson v. Rhea, 76 Ariz. 74, 76 (1953), which he did.

¶13 Nor does Pacheco have a claim against Aunt under § 411 

because she selected a contractor who does not possess workers’ 

compensation insurance. Cordova, 146 Ariz. at 81 (citing Restatement 

(Second) of Torts § 411, cmt. g) (a hirer is not liable to the employee of a 

“financially irresponsible” independent contractor); see also Robinson v. Jiffy 

Exec. Limousine Co., 4 F.3d 237 (3rd Cir. 1993) (one who hires an uninsured

independent contractor is not liable in tort for contractor’s negligence);

Thorp v. Home Health Agency-Arizona, Inc., 941 F.Supp.2d 1138, 1143 (D. Ariz. 

2013) (employee cannot bring a negligent selection claim if the appropriate 

remedy is the workers’ compensation statute).

¶14 The negligent selection claim fails for at least two more 

reasons. First, Pacheco contends that Aunt is liable because she knew 

Nephew possessed no contractor’s license and knew Nephew had 

previously been sanctioned for contracting without a license. If so, 

however, Aunt may be liable only for harm caused by the absence of a

contractor’s license—not harm caused by Nephew’s inattention or 

negligence. Restatement (Second) of Torts § 411, cmt. b (to impose liability 

on the hirer, the harm must “result from some quality in the contractor 

which made it negligent for the employer to entrust the work to him.”). She 

can be liable under § 411 only if an investigation would have shown 

Nephew had a reputation for inattention and careless work. Id. at cmt. b & 

illus. 4.

¶15 Second, § 411 states that “[t]he amount of care which should 

be exercised in selecting an independent contractor is that which a 

reasonable [person] would exercise under the circumstances, and therefore 

varies as the circumstances vary.” Id. at cmt. c. Comment c later adds:

The extent of the employer’s knowledge and experience in the 

field of the work to be done is to be taken into account; and 

an inexperienced widow employing a contractor to build a 

house is not to be expected to have the same information 
PACHECO v. COFFMAN

Decision of the Court

5

concerning the competence and carefulness of building 

contractors in the community, or to exercise the same 

judgment, as would a bank seeking to build the same house.

Id.

¶16 Aunt was “not in the business of” demolishing fireplaces and

had “no expertise or experience” in the area. Cordova, 146 Ariz. at 82. In 

that way, Aunt is like the “inexperienced widow” described in the 

Restatement who hired “a contractor to build a house,” and was not 

expected to have the same information on the contractor’s competence “as 

would a bank seeking to build the same house.” Id. We affirm the entry of 

summary judgment on Pacheco’s negligent selection claim.

II. Agency

¶17 Pacheco also contends that Aunt is liable for Nephew’s 

negligence under an agency theory. The relevant facts are uncontested on 

this issue. “The question of whether an agency relationship exists is a 

question of law for the court when the material facts from which it is to be 

inferred are not in dispute.” Cote v. A.J. Bayless Mkts, Inc., 128 Ariz. 438, 444 

(App. 1981).

¶18 “Agency is the fiduciary relationship that arises when one 

person (a ‘principal’) manifests assent to another person (an ‘agent’) that 

the agent shall act on the principal’s behalf and subject to the principal’s 

control, and the agent manifests assent or otherwise consents to so act.” 

Ruesga v. Kindred Nursing Ctr., LLC, 215 Ariz. 589, 597, ¶ 28 (App. 2007) 

(citing Restatement (Third) of Agency § 1.01 (2006)). Whether an agency 

relationship exists depends on the intent of the parties. Salt River Valley 

Water Users’ Ass’n v. Giglio, 113 Ariz. 190, 195 (1976). An agent can “only 

bind a principal within the scope of [the agent’s] authority, actual or 

apparent.” Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 510–

11, ¶ 26 (App. 2011).

¶19 Pacheco argues that Nephew had actual authority to act as 

Aunt’s agent. Actual authority “may be proved by direct evidence of 

express contract of agency between the principal and agent—express actual 

authority—or by proof of facts implying such contract or the ratification 

thereof—implied actual authority.” Heaphy v. Willow Canyon Healthcare, 

Inc., 251 Ariz. 358, 361, ¶ 7 (App. 2021) (quotation omitted).

¶20 Pacheco has not offered enough “available, competent 

evidence” to justify a trial on the issue of actual authority. See Ulibarri v. 
PACHECO v. COFFMAN

Decision of the Court

6

Gerstenberger, 178 Ariz. 151, 156 (App. 1993). Pacheco points only to a 

conversation in which Nephew agreed to help Aunt with her remodel. 

Aunt and Nephew entered no written contract, and Aunt retained no 

control over the demolition project. She was not present when it happened 

and offered no direction to Nephew on how it should be accomplished. Nor 

does a conversation in which Nephew agreed to help Aunt prove an 

implied contract. Id.

CONCLUSION

¶21 We affirm. As the successful party on appeal, we grant Aunt

her reasonable costs on appeal, but that award is contingent on compliance 

with ARCAP 21.