Cruz v. Lopez , 301 Neb. 531 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/16/2018 12:10 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
CRUZ v. LOPEZ
Cite as 301 Neb. 531
Edgar Cruz, as father and next friend of
H azel N. Cruz, a minor child, appellant,
v. Carlos J. Lopez et al., appellees.
___ N.W.2d ___
Filed November 9, 2018. No. S-17-1240.
1. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted, giv-
ing that party the benefit of all reasonable inferences deducible from
the evidence.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Negligence: Proof. In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.
4. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particular
situation.
5. Summary Judgment. The mere existence of some alleged factual dis-
pute between the parties will not defeat an otherwise properly supported
motion for summary judgment; only disputes over facts that under the
governing law might affect the outcome of the suit will properly pre-
clude the entry of summary judgment.
6. Employer and Employee: Negligence: Liability. Under the doctrine
of respondeat superior, an employer is held vicariously liable to third
persons for the employee’s negligence in the course of the employer’s
business.
7. Negligence: Liability: Contractors and Subcontractors. One who
employs an independent contractor is generally not liable for physical
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
harm caused to another by the acts or omissions of the contractor or
its servants.
8. Employer and Employee: Independent Contractor: Master and
Servant. Ordinarily, a party’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.
9. Negligence: Liability: Contractors and Subcontractors. An
employer of an independent contractor can be liable for physical harm
caused to another if (1) the employer retains control over the contrac-
tor’s work, (2) the employer is in possession and control of premises
where the injury occurred, (3) a statute or rule imposes a specific duty
on the employer, or (4) the contractor’s work involves special risks
or dangers.
10. Negligence: Liability: Contractors and Subcontractors: Words and
Phrases. A nondelegable duty means that an employer of an indepen-
dent contractor, by assigning work consequent to a duty, is not relieved
from liability arising from the delegated duties negligently performed.
11. Contractors and Subcontractors: Employer and Employee: Liability.
To fall within the control exception to the general rule of nonliability,
the general contractor’s involvement in overseeing the work must be
substantial. Furthermore, that control must directly relate to the work
that caused the injury.
12. ____: ____: ____. To impose liability on a property owner or general
contractor for injury to an independent contractor’s employee based
upon the owner’s retained control over the work, the owner or general
contractor must have (1) supervised the work that caused the injury, (2)
actual or constructive knowledge of the danger that ultimately caused
the injury, and (3) the opportunity to prevent the injury.
13. Contractors and Subcontractors: Independent Contractor. In exam-
ining the right of control in an employment relationship with that of an
independent contractor, it is important to distinguish control over the
means and methods of the assignment from control over the end product
of the work to be performed. Control over the work sufficient to impose
liability on a general contractor or owner must manifest in an ability to
dictate the way the work is performed, and not merely include powers
such as a general right to start and stop work, inspect progress, or make
suggestions that need not be followed.
14. Contracts: Contractors and Subcontractors. In examining whether an
owner or a general contractor exercises control over the work, both the
language of any applicable contract and the actual practice of the parties
should be examined.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
CRUZ v. LOPEZ
Cite as 301 Neb. 531
15. Contracts: Liability. As a rule, in a contract, general language requir-
ing compliance with government regulations does not establish vicari-
ous liability.
16. Negligence: Words and Phrases. A special risk is one that is differ-
ent from the common risks to which persons in general are commonly
subjected by the ordinary forms of negligence which are usual in the
community.
17. Negligence: Independent Contractor: Contractors and
Subcontractors: Motor Vehicles: Presumptions. The risks attendant to
the operation of a vehicle are precisely the risks that the employer of an
independent contractor is justified in presuming that the contractor will
act to avoid.
18. Employer and Employee: Contractors and Subcontractors: Motor
Carriers. Under the plain language of “employee” and “employer,” a
registered motor carrier that is also an employer of the drivers of its
commercial motor vehicles cannot at the same time be the statutory
employee of another motor carrier acting as a general contractor for a
particular job.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C.,
for appellant.
Robert S. Keith and Alexis M. Wright, of Engles, Ketcham,
Olson & Keith, P.C., for appellee Werner Construction, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
The employee of a registered motor carrier caused an acci-
dent while returning the motor carrier’s truck after delivering
the last load of the day under a contract between the motor
carrier and a general contractor, also a registered motor carrier,
to haul away construction debris. The injured party’s repre-
sentative sued the driver, the motor carrier who employed the
driver, and the general contractor. The court granted summary
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
judgment for the general contractor. At issue is whether, view-
ing the evidence in a light most favorable to the plaintiff, our
statutory scheme regulating intrastate motor carriers imputes an
employer-employee relationship between the general contractor
and the subcontracting motor carrier’s employee for purposes
of vicarious liability under respondeat superior. Also at issue
is whether the general contractor could be held liable under
one of the recognized common-law exceptions to a general
contractor’s nonliability for the acts or omissions of an inde-
pendent contractor.
II. BACKGROUND
On June 7, 2012, Hazel N. Cruz, a minor child, was injured
in an automobile accident caused by Lyle J. Carman. Carman
was an employee of Lopez Trucking and, at the time of the
accident, was driving a dump truck owned by Carlos J. Lopez,
doing business as Lopez Trucking. Testing conducted following
the accident revealed that Carman was operating his vehicle
under the influence of the controlled substances amphetamine
and methamphetamine.
Edgar Cruz, as father and next friend of Hazel, sued Carman
for negligence, seeking recovery of medical expenses. Cruz
joined Lopez, as the sole owner of Lopez Trucking, on the
theory of imputed liability as Carman’s employer, alleging that
“[a]t all times relevant hereto, Carman was driving the . . .
dump truck on June 7, 2012, in the course of his employment
and with the permission of Lopez.”
Cruz also joined Werner Construction, Inc. (Werner), the
general contractor for a project that Lopez Trucking had been
contracted to do hauling work for. On the day of the accident,
Carman had been hauling debris away from the construction
site pursuant to Lopez Trucking’s oral agreement with Werner,
but he had delivered his last load for the day and was returning
the truck to where Lopez directed him to park it for the night.
Cruz sued Werner on the theories that Werner was in complete
and exclusive control over the vehicle Carman was driving or
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
that Carman was Werner’s “‘statutory employee’” pursuant to
Neb. Rev. Stat. § 75-363 (Cum. Supp. 2012). Cruz alleged that
Werner was negligent in failing to follow safety rules to deter-
mine Carman’s qualifications and whether he was drug free,
in compliance with Werner’s drug-free workforce policy and
federal regulations, as well as in failing to ensure that Lopez
Trucking had Carman submit to a preemployment drug test.
Cruz did not allege that the accident occurred on premises over
which Werner had control.
Werner denied liability for the accident and moved for
summary judgment. The evidence presented at the summary
judgment hearing was largely undisputed. When the accident
occurred, Carman was driving a dump truck categorized as a
commercial motor vehicle owned by Lopez, doing business as
Lopez Trucking. Lopez Trucking possessed and was operating
under a U.S. Department of Transportation (DOT) motor car-
rier identification number. The Federal Motor Carrier Safety
Administration found Lopez Trucking to be in violation of 49
C.F.R. § 382.305 (2011) of the Federal Motor Carrier Safety
Regulations, which requires employers to implement a random
controlled substances and alcohol testing program for their
employees. Lopez Trucking was fined for the violation.
As alleged in Cruz’ complaint and admitted by Werner,
Carman was an employee of Lopez Trucking. He was paid an
hourly wage by Lopez Trucking, which withheld taxes and pro-
vided Carman with workers’ compensation insurance.
Lopez Trucking had been hired by Werner to haul debris
from a construction site located on Interstate 80, for what was
referred to as the “I-80 Air Park West Junction US-77 Project”
(Air Park project). Lopez, Carman, and another driver who
worked for Lopez Trucking drove Lopez Trucking dump trucks
for the hauling job at the Air Park project.
Werner is also a registered commercial motor carrier with a
DOT number. The Federal Motor Carrier Safety Administration
did not conduct an investigation of Werner in relation to
the accident.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
CRUZ v. LOPEZ
Cite as 301 Neb. 531
1. Unsigned Lease Agreement
Cruz entered into evidence a lease agreement which listed
Werner as lessor and Lopez as lessee, but the agreement was
dated approximately 1 year before Lopez Trucking worked on
the Air Park project. Further, it was signed only by Werner’s
president, not by Lopez. Lopez testified that he had never seen
the agreement.
The agreement stated that Werner was leasing a dump truck
for hauling on its construction projects. It specified the hourly
rate, that Lopez would not be allowed to purchase fuel at the
asphalt plant, that he would be required to fully fill out one
“Lease Driver Report” per day, that Lopez must have at least
$1 million in liability insurance, that Lopez would use and
possess the equipment in compliance with all applicable laws,
that Lopez would permit the equipment to be operated only by
persons experienced in the use and operation thereof, and that
he would not permit any insignia, lettering, safety warnings,
or instructions on the equipment to be removed or defaced.
An indemnification provision in the agreement provided that
Lopez would assume the entire responsibility and liability for
damages or injury to all persons and property connected with
the use or care of the leased equipment.
2. Testimony of Lopez
Lopez testified that he had an oral agreement with Werner
for work at the Air Park project and that it was not a
lease agreement. He admitted, however, that the unsigned
lease agreement accurately reflected their oral agreement with
respect to the hourly rate and the requirement that Lopez
Trucking obtain a liability policy of not less than $1 million.
Lopez explained that this hourly rate compensated him for the
maintenance and fuel for his dump trucks, which were entirely
the responsibility of Lopez Trucking.
Lopez elaborated that the job at the Air Park project
involved hauling millings from the construction site to a plant
in Milford, Nebraska. Lopez testified that at the end of each
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
day, Werner’s foreman for the Air Park project would let him
know how many trucks to deliver to the jobsite the next day.
Werner’s supervisor at the milling machine would also tell
Lopez each day when Lopez’ trucks were no longer needed.
No one directed Lopez as to the specific route he must take
in driving between the construction site and the Milford plant.
Furthermore, Lopez explained that he was under no obliga-
tion to haul for Werner on any given day, or to haul a minimum
number of loads, and Lopez was free to dictate his own sched-
ule and that of his employees. Each day Lopez told Carman
what to do, where to go, and when to do it. At no time was
Carman, Lopez, or Lopez Trucking authorized by Werner to
operate under Werner’s DOT number.
3. Testimony of Werner’s Project
M anager, Julie Budnick
Julie Budnick, Werner’s project manager, described that usu-
ally when Werner contracted with Lopez Trucking or similar
contracts, it needed the trucks to supplement Werner’s fleet
only for short periods of time. There were no written agree-
ments in such situations. Budnick testified that Werner would
call and tell the trucking company that Werner “need[s] a
couple of trucks” and that “then they are free to do whatever
they want to do.”
She explained that “these trucks have no obligation to work
for us.” Such trucks do not “want to necessarily commit”;
“they want to go anywhere they want to go for the highest pay
they can get.” Lopez had worked for Werner in this capacity
on other jobs in the past.
Budnick testified that on jobs like the Air Park project where
they call in a few extra trucks, Werner does not need to tell
the drivers what to do when they arrive. “They all just get in
line, back up to the mill . . . get a load, drive it out, dump it,
drive back, get a second load. Take a circle, drive, dump those
millings, come back.” She said, “They don’t have to be told
anything, but that, you know, when they get to the end, they’re
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
done, go home or — or leave, we don’t need you anymore
for today.”
At one point, Budnick was handed a copy of the unsigned
lease agreement and answered in the affirmative that it was
the lease agreement that Werner had with Lopez. But she later
explained that she did not believe the lease agreement applied
to Lopez, because it was authored for situations where drivers
are using Werner’s equipment. Budnick indicated that the lease
agreement was used only when other truckers were pulling
Werner trailers. She said that the lease agreement presented
to her “doesn’t even apply because we’re not ren- — we’re
not controlling, we’re not using his equipment at all, he’s not
using our equipment.” Budnick testified that Lopez “controls
his own equipment, he maintains it, he fuels it, insures it. He
can just come and go as he pleases.”
Under the bid proposal for the Air Park project, Werner
had agreed to comply with all applicable federal, state, and
local laws governing safety, health, and sanitation; provide
all safeguards, safety devices, and protective equipment; and
take any other needed actions that Werner or the state high-
way administration’s contracting officer may determine to be
reasonably necessary in connection with the performance of
work covered by the contract to protect property, the life and
health of employees on the job, and the safety of the public.
Budnick testified that Werner had a drug testing policy, but
that such policy would not have been applicable to Carman,
because he was not Werner’s employee.
4. Testimony of Carman
Carman testified that at the beginning of each day, he
received instructions from Lopez regarding the work to be per-
formed. Beginning on May 29, 2012, and continuing until the
day of the accident, Carman had been directed to haul debris
from the Air Park project.
Carmen would pick up Lopez Trucking’s truck at a truck-
stop, go to the construction site, and then travel between the
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301 Nebraska R eports
CRUZ v. LOPEZ
Cite as 301 Neb. 531
construction site and the Milford plant until he was done for
the day. Carman would then return the truck to the truckstop.
Carman also fueled the truck at the truckstop under Lopez
Trucking’s account.
Carmen testified that while working on the Air Park project,
he continued to receive his instructions from Lopez. He could
not recall any representatives from Werner telling him what
to do.
Carman kept track of the hours he worked for Lopez
Trucking in a calendar that he kept in the truck. Additionally,
during his final load at the end of each day, or sometimes the
following morning, Carman would give a Werner employee
his “unload sheet.” The sheets are found in the record and are
entitled “Werner Construction Lease Driver Report[s].”
The forms appear to require the date, name of the trucking
company, beginning time, ending time, truck number, trailer
number, load time, unload time, starting location, ending loca-
tion, material hauled, load or ticket number, delays encoun-
tered, Werner fuel added, Werner oil added, other Werner-
owned purchases, the driver’s signature, and the signature of
the foreman or plant manager. However, Carman filled out
only the date, “Carlos Lopez” as the trucking company, the
truck number, the beginning and ending time, the starting and
ending location, and the material hauled. These were signed by
Carman and Werner’s plant manager.
The ending location listed in the driver reports was always
the Milford plant. At the time of the accident, the truck Carman
was driving had already made its last run to the Milford plant
to unload the millings. Carlos was driving the empty truck
back to the truckstop to park it for the evening.
5. Order of Summary Judgment
The court granted Werner’s motion for summary judgment
on the ground that it had not breached any duty in relation to
the accident.
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CRUZ v. LOPEZ
Cite as 301 Neb. 531
The court found the evidence undisputed that Lopez
Trucking had an independent contractor agreement with Werner
to provide trucking services but did not lease its dump truck to
Werner. The court considered the 10 factors distinguishing an
employment relationship from that of an independent contrac-
tor1 and concluded that “while a couple of the factors may
auger in favor of [Cruz’] claim given the standard of review,
the facts overwhelming[ly] establish support [for] the finding
[of] an independent contractor status in this case.”
The court concluded, further, that under the Federal Motor
Carrier Safety Regulations adopted by § 75-363, there was no
material issue of fact that Lopez Trucking, rather than Werner,
was operating as the motor carrier with respect to Carman
and that Lopez Trucking, not Werner, was the employer of
Carman.
Finally, viewing the evidence in a light most favorable
to Cruz, the court found no evidence that would support
the conclusion that Werner had exercised substantial control
over Lopez Trucking’s work or that the accident involved the
breach of any nondelegable duty. Thus, Cruz had failed to
demonstrate a genuine issue that Werner was vicariously liable
for Carman’s negligence under exceptions to the general rule
that a general contractor is not liable for the negligence of an
independent contractor.
Cruz’ complaint as to Werner was dismissed. Subsequently,
Cruz moved for summary judgment against Lopez and Carman,
which the court granted, noting that there were no further
issues remaining before the court. On appeal from the judg-
ment, Cruz appeals the order of summary judgment in favor
of Werner.
III. ASSIGNMENTS OF ERROR
Cruz assigns, consolidated and restated, that the district
court erred in granting summary judgment in favor of Werner
1
See, e.g., Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
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CRUZ v. LOPEZ
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on the ground that there was no material issue of fact that (1)
Carman was not a “common law employee” of Werner, (2)
Carman was not a statutory employee of Werner pursuant to
the Federal Motor Carrier Safety Regulations, and (3) Werner
did not breach a nondelegable duty to Cruz.
IV. STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, giving that party
the benefit of all reasonable inferences deducible from the
evidence.2
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.3
V. ANALYSIS
[3] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages.4 Cruz alleged
in his complaint and asserts on appeal that Werner was neg-
ligent in failing to ensure that Carman was subjected to pre-
employment drug testing consistent with 49 C.F.R. § 382.301
(2011). Summary judgment was granted in favor of Werner
on the ground that Werner did not have a duty to ensure that
Lopez Trucking’s employees were drug free.
[4,5] We agree that there was no material issue of fact pre-
venting summary judgment in favor of Werner on the ground
that Werner did not breach any duty relating to Carman’s
negligence that caused the accident. The question whether
a legal duty exists for actionable negligence is a question
2
Christensen v. Gale, ante p. 19, 917 N.W.2d 145 (2018).
3
Id.
4
Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
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of law dependent on the facts in a particular situation.5 The
mere existence of some alleged factual dispute between the
parties, however, will not defeat an otherwise properly sup-
ported motion for summary judgment6; only disputes over
facts that under the governing law might affect the outcome
of the suit will properly preclude the entry of summary
judgment.7
[6,7] Under the doctrine of respondeat superior, an employer
is held vicariously liable to third persons for the employ-
ee’s negligence in the course of the employer’s business.8
Conversely, one who employs an independent contractor is
generally not liable for physical harm caused to another by
the acts or omissions of the contractor or its servants.9 This
is because an employer of an independent contractor gener-
ally has no control over the manner in which the work is
to be done by the contractor, so the contractor, rather than
the employer, is the proper party to be charged with the
responsibility of preventing the risk and bearing and distribut-
ing it.10
Cruz argues, albeit somewhat vaguely, that Carman had an
employee relationship with Werner rather than the relationship
of an independent contractor. Cruz relies more on an argument
that one of the exceptions to a general contractor’s nonli-
ability for the acts or omissions of an independent contractor
applies. Alternatively, Cruz argues that our statutory scheme
5
Id.
6
Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170
(1992).
7
Id.
8
See Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 227
(2017).
9
See, Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018);
Gaytan v. Wal-Mart, supra note 4; Eastlick v. Lueder Constr. Co., 274
Neb. 467, 741 N.W.2d 628 (2007).
10
Rodriguez v. Surgical Assocs., supra note 9; Gaytan v. Wal-Mart, supra
note 4.
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regulating intrastate motor carriers11 imputes an employer-
employee relationship between Werner and Carman for pur-
poses of vicarious liability under respondeat superior.
1. Employee Versus
Independent Contractor
We first address whether there was a common-law employ-
ment relationship. Cruz does not clearly argue how, under the
10 factors for determining whether one performs services for
another as an employee or as an independent contractor,12 he
presented a material issue of fact that Carman was Werner’s
employee. Those factors are (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 dis-
tinct occupation or business; (3) the type 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 occupa-
tion; (5) whether the employer or the one employed supplies
the instrumentalities, tools, and the place of work for the per-
son 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 regu-
lar 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.13
[8] Ordinarily, a party’s status as an employee or an inde-
pendent 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.14 We find that under the facts presented,
11
See Neb. Rev. Stat. §§ 75-362 to 75-369.07 (Reissue 2009 & Cum. Supp.
2012).
12
See Mays v. Midnite Dreams, supra note 1.
13
Id.
14
Id.
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the question whether Carman was an employee of Werner was
properly determined as a matter of law.
Cruz points to the district court’s language that “a couple
of the factors may auger in favor of [Cruz’] claim given the
standard of review” and argues that the district court thus indi-
cated it was inappropriately making a factual determination on
summary judgment. Whether the court did so does not affect
the outcome of this appeal, because the question whether he
presented a material issue of fact is a question that we deter-
mine independently of the court below.15 The grant of a motion
for summary judgment may be affirmed on any ground avail-
able to the trial court, even if it is not the same reasoning the
trial court relied upon.16
In any event, though the language used by the district court
was not ideal, it was meant to convey that, viewing the evi-
dence in a light most favorable to Cruz, he demonstrated only
“a couple” of the 10 factors could possibly weigh in favor of
an employer-employee relationship. Even considering those
“couple” of factors, the court concluded that the clear overall
inference was that Carman was not Werner’s employee.
We agree. Most of the factors are simply not a good fit for
an analysis of whether the negligent party, undisputedly an
employee of another employer, was somehow at the same time
an employee of the general contractor. For example, Carman
was paid hourly, but he was paid by Lopez Trucking, not by
Werner. Carman was an employee, but the relevant question is
whether he was Werner’s employee. Cruz did not allege that
Carman was a borrowed servant.17
With this in mind, the factors overwhelmingly demonstrate
the relationship of an independent contractor. Werner did not
supply the instrumentalities for the work, the “job” was for a
limited length of time, and the parties did not believe they were
15
See Farmland Serv. Co-op v. Southern Hills Ranch, 266 Neb. 382, 665
N.W.2d 641 (2003).
16
Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012).
17
See, e.g., Barton v. Hobbs, 181 Neb. 763, 151 N.W.2d 331 (1967).
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creating an agency relationship. The only factor that could
under these circumstances indicate an employer-employee rela-
tionship is control. As will be explained further below, even
viewing the evidence in a light most favorable to Cruz, the
level of control demonstrated by Cruz would be insufficient to
establish vicarious liability.
2. Exceptions to Nonliability for
Independent Contractor’s Negligence
[9,10] Cruz argues that he presented a material issue of fact
concerning the applicability of one of the exceptions to the
general contractor’s nonliability for the negligence of its inde-
pendent contractors. Our case law has recognized four excep-
tions to the general rule that one who employs an independent
contractor is not liable for physical harm caused to another
by the acts or omissions of the contractor or its servants.18
Specifically, we have held that an employer of an independent
contractor can be liable for physical harm caused to another if
(1) the employer retains control over the contractor’s work, (2)
the employer is in possession and control of premises where
the injury occurred, (3) a statute or rule imposes a specific duty
on the employer, or (4) the contractor’s work involves special
risks or dangers.19 We often refer to the latter three excep-
tions as involving “nondelegable” duties.20 A nondelegable
duty means that an employer of an independent contractor, by
assigning work consequent to a duty, is not relieved from liabil-
ity arising from the delegated duties negligently performed.21
(a) Control of Relevant Work
[11,12] Cruz primarily argues that the first exception applies;
i.e., that Werner had control over the relevant work and is
18
Gaytan v. Wal-Mart, supra note 4.
19
See, id.; Didier v. Ash Grove Cement Co., 272 Neb. 28, 718 N.W.2d 484
(2006).
20
Gaytan v. Wal-Mart, supra note 4.
21
Id.
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therefore liable for a failure to exercise reasonable care in the
use of that control.22 To fall within this exception to the gen-
eral rule of nonliability, the general contractor’s involvement
in overseeing the work must be substantial.23 Furthermore,
that control must directly relate to the work that caused the
injury.24 In other words, the key element of control must exist
with respect to the very thing from which the injury arose.25 To
impose liability on a property owner or general contractor for
injury to an independent contractor’s employee based upon the
owner’s retained control over the work, the owner or general
contractor must have (1) supervised the work that caused the
injury, (2) actual or constructive knowledge of the danger that
ultimately caused the injury, and (3) the opportunity to prevent
the injury.26
[13] In examining the right of control in an employment
relationship with that of an independent contractor, it is impor-
tant to distinguish control over the means and methods of the
assignment from control over the end product of the work to
be performed.27 Control over the work sufficient to impose
liability on a general contractor or owner must manifest in
an ability to dictate the way the work is performed, and not
merely include powers such as a general right to start and
stop work, inspect progress, or make suggestions that need not
be followed.28
[14] In examining whether an owner or a general contrac-
tor exercises control over the work, both the language of any
applicable contract and the actual practice of the parties should
22
See Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).
23
See Gaytan v. Wal-Mart, supra note 4.
24
See id.
25
Cutlip v. Lucky Stores, 22 Md. App. 673, 325 A.2d 432 (1974).
26
See Gaytan v. Wal-Mart, supra note 4.
27
See, Harris v. Velichkov, 860 F. Supp. 2d 970 (D. Neb. 2012); Gaytan v.
Walmart, supra note 4.
28
Gaytan v. Wal-Mart, supra note 4.
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be examined.29 Cruz points to the provisions of the lease agree-
ment whereby (1) Werner agreed to pay Lopez by the hour, (2)
Lopez was prohibited from purchasing fuel at the asphalt plant,
(3) Lopez’ drivers were required to turn in one “Lease Driver
Report” per day, (4) Werner agreed to use and possess the truck
in compliance with all applicable laws, and (5) Werner was to
return the truck to Lopez at the end of the lease. Further, Cruz
relies on the acts of Werner agents in (1) determining what
days Lopez’ trucks were to report to work, (2) directing that
the trucks were to report to work at the milling machine site,
(3) directing the trucks to haul the milling to the asphalt plant,
and (4) requiring a “Lease Driver Report” to be turned in for
each day of hauling.
Even viewing the evidence in a light most favorable to
Cruz and assuming that the lease agreement, unsigned by
Lopez, evidences some of the terms of the parties’ oral
agreement, the control in their agreement and the parties’
actual practice is insufficient as a matter of law to establish
the requisite substantial control over Lopez Trucking and
Carman’s work. It was undisputed that Werner never had
possession of Lopez Trucking’s dump truck that was driven
by Carman. Furthermore, the evidence was undisputed that
Lopez Trucking and its employees were under no obligation
to haul on any given day or to haul a specific number of
loads. Lopez Trucking and Carman were not told by Werner
to haul at a specific time other than to inform them when
they were no longer needed for the day. The process of pick-
ing up loads and dumping them was largely self-explanatory.
Werner’s control concerned the end product of hauling debris
from the construction site to the Milford plant. Werner did
not otherwise control Lopez Trucking’s drivers’ means and
methods. Werner did not tell Lopez Trucking or its drivers
what route to take in reaching the construction site or the
Milford plant.
29
Id.
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[15] Furthermore, the evidence presented failed to create
an issue of fact that any control by Werner extended to the
very thing from which the injury arose.30 The evidence was
undisputed that Werner did not participate in the decision to
hire Carman and did not control whether Lopez Trucking’s
drivers were tested for drugs. Cruz presented no evidence
that Werner’s employees should have observed Carman’s
impaired driving. The only indication of any control perti-
nent to the accident is the provision of the unsigned lease
that Lopez Trucking would use and possess the equipment in
compliance with all applicable laws. Leaving aside that this
referred to Werner’s equipment and not Lopez Trucking’s,
as a rule, such general language requiring compliance
with government regulations does not establish vicarious
liability.31
Viewing the evidence in the light most favorable to Cruz
and giving him the benefit of all reasonable inferences deduc-
ible from the evidence, Cruz did not demonstrate substantial
control over the work that caused the injury. Thus, as a mat-
ter of law, Werner was not liable for the negligence of Lopez
Trucking or Carman under the control-over-the-work excep-
tion to the general rule that an employer of an independent
contractor can be vicariously liable for physical harm caused
to another.
(b) Nondelegable Duty
Cruz also asserts that Werner had a “nondelegable contrac-
tual duty pursuant to the awarded contract” to conduct a drug
test on Carman.32 Cruz does not argue under the nondelegable
duties heretofore recognized by this court that (1) Werner
30
Cutlip v. Lucky Stores, supra note 25.
31
See, e.g., North American Van Lines, Inc. v. N.L.R.B., 869 F.2d 596 (D.C.
Cir. 1989); Howarton v. Minnesota Mining and Mfg., Inc., 133 S.W.3d 820
(Tex. App. 2004); Vega v. Griffiths Const., Inc., 172 Ariz. 46, 833 P.2d 717
(Ariz. App. 1992).
32
Brief for appellant at 11.
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was in possession and control of premises where the injury
occurred, (2) Werner breached a specific duty imposed by a
statute or rule, or (3) Carman’s work involved special risks
or dangers.33
Instead, Cruz again points out that Werner agreed in its bid
proposal for the Air Park project that Werner would comply
with all applicable federal, state, and local laws governing
safety, health, and sanitation; provide all safeguards, safety
devices, and protective equipment; and take any other needed
actions reasonably necessary to protect the life and health of
employees on the job and the safety of the public in connection
with the performance of the work covered by the project. Cruz
does not cite to any law establishing that contractual obliga-
tions somehow create nondelegable duties as to all the things
agreed to in the contract. We can find no support for such a
proposition and find it to be without merit.
Cruz relies on Parrish v. Omaha Pub. Power Dist,34 appar-
ently as part of the contract argument. However, the facts
of that case are inapposite. Parrish involved the death of a
subcontractor’s employee after a fall from the building where
the construction work was being performed. We held that if
the owner of the premises maintained possession and control
of the construction site and the general contractor assumed a
contractual duty for the safety of workers at that construction
site, then both the owner and the general contractor had a
nondelegable duty to use reasonable care to keep the premises
in a safe condition for the subcontractor’s employees or other
invitees to work while the contract is in the course of per­
formance.35 Cruz did not allege in his complaint, nor did he
present sufficient evidence to establish, an issue of fact that
33
See Gaytan v. Wal-Mart, supra note 4.
34
Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902
(1993), disapproved, Gaytan v. Wal-Mart, supra note 4.
35
See id. See, also, Simon v. Omaha P. P. Dist., 189 Neb. 183, 202 N.W.2d
157 (1972).
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the accident occurred on premises over which Werner main-
tained possession and control.
[16] Finally, Cruz suggests that the empty dump truck
being driven by Carman at the time of the accident presented
a special risk or danger. We find no merit to that suggestion.
A special risk is one that is different from the common risks
to which persons in general are commonly subjected by the
ordinary forms of negligence which are usual in the commu-
nity.36 It must involve some special hazard resulting from the
nature of the work done.37 We have long held that operating
motor vehicles is not an inherently dangerous activity.38 And, in
Kime v. Hobbs,39 we held that the transportation of cattle in a
tractor-livestock trailer was not an inherently dangerous activ-
ity such that it imposes a nondelegable duty on the employer of
an independent contractor. In doing so, we observed that only
in special circumstances have courts held that the operation of
a “loaded truck” presented a peculiar risk so as to impose a
nondelegable duty.40
[17] The dump truck Carman was driving was empty. The
truck driven by Carman thus presented even less of a special
hazard than the loaded trailer at issue in Kime. It is not dis-
tinguishable in a way that could lead this court to a different
conclusion as to whether it presented a peculiar risk. Without
diminishing the gravity of the underlying negligence, the
risk that a driver could be impaired is, in a legal sense, an
“ordinary” risk attendant to the operation of a motor vehicle.
As we stated in Kime, the risks attendant to the operation
of a vehicle are precisely the “risks that the employer of an
36
See Kime v. Hobbs, supra note 22.
37
See id.
38
See, Bridgeford v. U-Haul Co., 195 Neb. 308, 238 N.W.2d 443 (1976);
Christensen v. Rogers, 172 Neb. 31, 108 N.W.2d 389 (1961).
39
See Kime v. Hobbs, supra note 22.
40
See id. at 417, 562 N.W.2d at 713, citing, e.g., Ek v. Herrington, 939 F.2d
839 (9th Cir. 1991) (holding that transportation of logs did not generally
pose peculiar risk of harm).
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independent contractor is justified in presuming that the con-
tractor will act to avoid.”41 We conclude that the evidence
failed to pre­sent a material issue of fact concerning a breach
of a nondelegable duty.
3. Statutory Employee Under Federal
Motor Carrier Safety R egulations
Finally, we turn to Cruz’ argument that Carman was a statu-
tory employee under the regulatory scheme governing intra-
state commerce. Through § 75-363, the Nebraska Legislature
adopted several parts of the Federal Motor Carrier Safety
Regulations as Nebraska law, making them applicable to car-
riers, drivers, and vehicles to which the federal regulations
apply, as well as to certain vehicles of intrastate motor carriers.
The purpose of extending the regulations to certain vehicles of
intrastate motor carriers was to ensure that motor carriers not
falling under federal jurisdiction were nonetheless subject to
regulation under state law.42 The statutory scheme governing
intrastate motor carriers was designed to
promote uniformity of regulation, to prevent motor vehi-
cle accidents, deaths, and injuries, to protect the pub-
lic safety, to reduce redundant regulation, to promote
financial responsibility on the part of all motor carriers
operating in and through the state, and to foster the devel-
opment, coordination, and preservation of a safe, sound,
adequate, and productive motor carrier system which is
vital to the economy of the state.43
For purposes of §§ 75-362 to 75-369.07, the definition of
“[e]mployee” is:
[A]ny individual, other than an employer, who is employed
by an employer and who in the course of his or her
employment directly affects commercial motor vehicle
41
Kime v. Hobbs, supra note 22, 252 Neb. at 418, 562 N.W.2d at 713.
42
See Caspers Constr. Co. v. Nebraska State Patrol, 270 Neb. 205, 700
N.W.2d 587 (2005).
43
Neb. Rev. Stat. § 75-301(1) (Reissue 2009).
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safety. Such term includes a driver of a commercial motor
vehicle, including an independent contractor while in
the course of operating a commercial motor vehicle, a
mechanic, and a freight handler.44
An “[e]mployer” is defined as “any person engaged in a busi-
ness affecting commerce who owns or leases a commercial
motor vehicle in connection with that business or assigns
employees to operate it.”45 “Motor carrier” is defined as
a for-hire motor carrier or a private motor carrier. The
term includes a motor carrier’s agents, officers, and rep-
resentatives as well as employees responsible for hiring,
supervising, training, assigning, or dispatching of drivers
and employees concerned with the installation, inspec-
tion, and maintenance of motor vehicle equipment or
accessories. This definition includes the terms employer
and exempt motor carrier.46
These definitions are identical to the definitions found in the
Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5
(2011).
For certain motor carriers operating in intrastate com-
merce, § 75-363 at the time of the accident, adopted parts
382, 385 through 387, 390 through 393, and 395 through 398
of title 49 of the Code of Federal Regulations in existence
as of January 1, 2012.47 There is no dispute that the truck
involved in the accident here at issue was operated by a motor
carrier governed by these sections. Both Werner and Lopez
Trucking are motor carriers operating each under their own
DOT numbers.
The Federal Motor Carrier Safety Regulations gener-
ally require that a commercial motor carrier operate only if
registered, and such registration requires proof of financial
44
§ 75-362(11) (now found at § 75-362(12) (Cum. Supp. 2016)).
45
§ 75-362(12) (now found at § 75-362(13) (Cum. Supp. 2016)).
46
§ 75-362(29) (now found at § 75-362(31) (Cum. Supp. 2016)).
47
See § 75-363(1) and (3)(a) through (l).
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responsibility in order to ensure collectability of a judgment
against the motor carrier.48 Several provisions of the regula-
tions were specifically designed to prevent regulated motor car-
riers from evading the requirements of the regulatory scheme
through lease agreements nominally designating as indepen-
dent contractors owners/drivers who were underinsured and
unregulated.49 These regulations protect the public and provide
financial responsibility for motor carrier accidents by creating
a legal right and duty to control leased vehicles operated for
the regulated motor carrier’s benefit as if they were the owners
of such vehicles.50
But most of these provisions preventing evasion of the
regulatory scheme through use of independent contractors
are found in 49 C.F.R. § 376 (2011), which the Legislature
did not adopt. Specifically, 49 C.F.R. § 376.11 (2011) of the
unadopted regulations states that “the authorized carrier may
perform authorized transportation in equipment it does not
own only under” several conditions, including that “[t]here
shall be a written lease granting the use of the equipment and
meeting the requirements contained in § 376.12.”51 And, 49
C.F.R. § 376.12(c)(1) (2011), in turn, requires that the lease
shall be signed and provide that the authorized carrier lessee
shall have exclusive possession, control, and use of the equip-
ment, and responsibility for its operation for the duration of
the lease.
48
See, 49 U.S.C. §§ 13901 and 13906 (2012); Harris v. Velichkov, supra
note 27.
49
See, American Trucking Assns. v. U.S., 344 U.S. 298, 73 S. Ct. 307, 97
L. Ed. 337 (1953); Crocker v. Morales-Santana, 854 N.W.2d 663 (N.D.
2014); Illinois Bulk Carrier, Inc. v. Jackson, 908 N.E.2d 248 (Ind. App.
2009).
50
See, 49 U.S.C. § 14102(a)(4) (2012); Tamez v. Southwestern Motor
Transport, Inc., 155 S.W.3d 564 (Tex. App. 2004); Crocker v. Morales-
Santana, supra note 49.
51
49 C.F.R. § 376.11(a).
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Under these regulations, the holder of a highway permit is
liable for the negligent operation of a motor vehicle leased
from one not authorized to transport passengers or goods over
the public highways, and operated under the former’s per-
mit—even though the owner of the vehicle is an independent
contractor and liable for the driver’s conduct.52 Most federal
courts hold that 49 C.F.R. § 376.12(c)(1) creates a rebuttable
presumption of an agency relationship between the carrier-
lessee and the driver.53
In arguing that under 49 C.F.R. §§ 350 to 399 (2011), a
lessee such as Werner is vicariously liable for the driver of
its “leased” vehicle, Cruz ignores the fact that these provi-
sions are not contained in the sections adopted by § 75-363
into Nebraska law governing intrastate motor carriers. The
only provisions Cruz can possibly rely upon for vicarious
liability under the regulations are the definitions of employee
and employer.
Before addressing those definitions, however, we note that
we have never addressed the applicability of the definitions
found in § 75-362 and the regulations adopted by § 75-363 to
our state tort law. Neither chapter 75 of the Nebraska Revised
Statutes nor the Federal Motor Carrier Safety Regulations
address state tort liability. Indeed, the Interstate Commerce
Commission, the predecessor to the Federal Motor Carrier
Safety Administration,54 has commented that “[t]he Commission
did not intend that its leasing regulations would supersede
52
8 Am. Jur. 2d Automobiles § 714 (2017).
53
See, Delaney v. Rapid Response, Inc., 81 F. Supp. 3d 769 (D.S.D. 2015);
UPS Ground Freight, Inc. v. Farran, 990 F. Supp. 2d 848 (S.D. Ohio 2014);
Thomas v. Johnson Agri-Trucking, 802 F. Supp. 2d 1242 (D. Kan. 2011);
Bays v. Summitt Trucking, LLC, 691 F. Supp. 2d 725 (W.D. Ky. 2010). See,
also, Penn v. Virginia Intern. Terminals, Inc., 819 F. Supp. 514 (E.D. Va.
1993). But see, Huggins v. FedEx Ground Package System, Inc., 592 F.3d
853 (8th Cir. 2010); Zamalloa v. Hart, 31 F.3d 911 (9th Cir. 1994).
54
See, ICC Termination Act of 1995, Pub. L. No. 104-88, § 101, 109 Stat. 803
(abolishing Interstate Commerce Commission); 49 U.S.C. § 113 (2012).
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otherwise applicable principles of State tort, contract, and
agency law and create carrier liability where none would
otherwise exist. Our regulations should have no bearing on
this subject. Application of State law will provide appropriate
results.”55 Nevertheless, some jurisdictions hold that the regu-
lations adopted by the state may create a statutory employee
relationship between owner-lessors and authorized motor car-
rier lessees, which in turn may serve to establish vicarious
liability under applicable state law, when the other elements of
respondeat superior have been met.56
We need not determine in this case whether we should
likewise hold that the regulatory scheme governing intrastate
motor carriers is relevant to common-law concepts of respon-
deat superior liability in a tort action. This is because it
is apparent that even if this were so there is no statutory
employer-employee relationship between Werner and Carman
under the definitions found in § 75-362 and the regulations
adopted by § 75-363.
[18] The regulations contemplated a relationship between
registered motor carriers and private truck owners/drivers who
are not registered motor carriers and who lease their services
to the registered motor carriers.57 They do not impose an
55
Lease and Interchange of Vehicles (Ident. Devices), 3 I.C.C.2d 92, 93
(1986).
56
See, Frederick v. Swift Transp. Co., 616 F.3d 1074 (10th Cir. 2010);
McHale v. Kiswani Trucking, Inc., 2015 IL App (1st) 132625, 39 N.E.3d
595, 396 Ill. Dec. 46 (2015); Crocker v. Morales-Santana, supra note 49;
Tamez v. Southwestern Motor Transport, Inc., supra note 50. See, also,
Beavers v. Victorian, 38 F. Supp. 3d 1260 (W.D. Okla. 2014); Parker
v. Erixon, 123 N.C. App. 383, 473 S.E.2d 421 (1996); Patrick Phillips,
Note, Common Law Respondeat Superior Versus Federal Regulation of
Motor Carrier Leases: Court Interpretation of the Interstate Commerce
Commission Regulations of Motor Carrier Lease Requirements, 24 Okla.
City U.L. Rev. 383 (1999); R. Clay Porter & Elenore Cotter Klingler, The
Mythology of Logo Liability: An Analysis of Competing Paradigms of
Lease Liability for Motor Carriers, 33 Transp. L.J. 1 (2005).
57
See Phillips, supra note 56.
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agency relationship where the independent contractor is itself
a registered motor carrier and where an employee of that
motor carrier caused the accident. Under the plain language
of “employee” and “employer,” a registered motor carrier that
is also an employer of the drivers of its commercial motor
vehicles cannot at the same time be the statutory employee of
another motor carrier acting as a general contractor for a par-
ticular job.58
Thus, in Illinois Bulk Carrier, Inc. v. Jackson,59 the court
held that the employee of a subcontractor that was a federally
regulated motor carrier was not the statutory employee of the
general contractor that was also a federally regulated motor
carrier. The subcontractor in Illinois Bulk Carrier, Inc. oper-
ated under an oral agreement, and while the subcontractor’s
drivers filled out paperwork each day, they proceeded to their
final destination using the route of their choice. At no time did
the general contractor take possession, control, maintain, or
service the subcontractor’s trucks. Under these facts, the court
concluded that summary judgment in favor of the subcontrac-
tor and against the injured plaintiffs seeking to impose vicari-
ous liability was proper. The court reasoned, first, that there
was no lease, because the general contractor had no right of
control and never took possession of the truck involved in the
accident. Second, the court concluded that under the definition
in 49 C.F.R. § 390.5, an employee is an “individual,” plainly
meaning a human being and not a corporation or other legal
person. Thus, the subcontractor, as a motor carrier, could not
be an “employee” of the general contractor. Furthermore, the
court observed that because the subcontractor was a motor car-
rier with its own DOT authorization and subject to the regula-
tions, the circumstances were not those meant to be addressed
by the statutory employee provision.60
58
Beavers v. Victorian, supra note 56. See, also, e.g., Illinois Bulk Carrier,
Inc. v. Jackson, supra note 49.
59
Illinois Bulk Carrier, Inc. v. Jackson, supra note 49.
60
Id.
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Similarly, in Beavers v. Victorian,61 the court held that a
motor carrier was entitled to summary judgment against the
injured third party who sought to impose vicarious liability
under the regulations for the negligence of the drivers of a sub-
contractor motor carrier operating under its own DOT registra-
tion number. A brokerage agreement between the two carriers
designated the subcontractor as an independent contractor and
required it to furnish all equipment needed to provide the trans-
portation services, to maintain the equipment in good working
order, employ properly licensed and trained personnel, and
comply with all applicable DOT laws and regulations. While
general shipment instructions were given, the subcontractor
was free to determine the route to its destination. The court
held that the motor carrier who brokered the agreement with
the subcontractor was not an “employer,” because it neither
owned nor leased the motor vehicle involved in the accident,
nor assigned an employee to operate it.62 Similarly, the subcon-
tractor could not be the broker’s “employee,” because it was
itself an “employer” of the driver, acting under its own motor
carrier authority.63 Such legal entity did not qualify as an “indi-
vidual” employee.64
The court in Harris v. Velichkov65 also rejected a claim that a
motor carrier acting in that instance as a broker was vicariously
liable for the actions of the employee of a motor carrier that
contracted with it to carry the goods. The court explained that
it was important to “focus on the specific transaction at issue”
and not whether the entity acted as a motor carrier in other
situations.66 Further, it would produce absurd results to inter-
pret the regulations in such a way that the motor carrier acting
61
Beavers v. Victorian, supra note 56.
62
See id.
63
See id.
64
See id.
65
Harris v. Velichkov, supra note 27.
66
Id. at 979.
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in that instance as broker would be responsible for ensuring
the maintenance of driver safety records and testing, when the
driver motor carrier had no relationship with that driver other
than through the independent contractor motor carrier.67 The
driver was an employee of the independent contractor motor
carrier and not of the motor carrier who contracted with that
independent contractor.68
The facts of the current case are similar to the facts held
in Illinois Bulk Carrier, Inc.; Beavers; and Harris to be insuf-
ficient as a matter of law to establish a statutory employ-
ment relationship that could impose vicarious liability. Cruz
wishes to impose liability on Werner for failing to ensure that
random drug testing was conducted on Carman. But under a
plain reading of the relevant terms, Lopez Trucking is not an
“employee” of Werner. Leaving aside whether Lopez Trucking
was even an “individual,” an “employee” is defined as an indi-
vidual “other than an employer.”69 And Lopez Trucking was,
under the plain meaning of the applicable definitions, both an
“employer” and a “motor carrier.”70
The “motor carrier,” with respect to the accident in ques-
tion, was Lopez Trucking and not Werner. Carman, while an
employee, was not Werner’s employee. As such, Werner did
not have the requisite control to ensure such that random drug
testing was conducted on Carman. Werner contracted with
a registered motor carrier, Lopez Trucking, which operated
under its own DOT number and was subject to the regulations.
Werner did not contract directly with Carman as an underin-
sured and unregulated individual owner/operator. We find no
support for Cruz’ suggestion that under the adopted regula-
tions, Carman was Werner’s statutory “employee.”
67
See id.
68
See id.
69
See § 75-362(11) (now found at § 75-362(12) (Cum. Supp. 2016)).
70
See § 75-362(12) and (29) (now found at § 75-362(13) and (31) (Cum.
Supp. 2016)).
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Cruz attempts to rely on interpretive guidance by the Federal
Motor Carrier Safety Administration in which it stated: “The
term ‘employee,’ as defined in § 390.5, specifically includes an
independent contractor employed by a motor carrier. The exis-
tence of operating authority has no bearing upon the issue.”71
Cruz fails to note that this guidance was to clarify who is
responsible for compliance with federal recordkeeping when
the independent contractor is an individual owner/operator
with an operating authority.72 It does not address vicarious
liability in tort, and it does not address the scenario where the
contract is with a motor carrier employer and the driver in
question is, under any other legal principle, an employee of
that motor carrier.73
Viewing the evidence in a light most favorable to Cruz,
we determine he cannot establish that Carman was a statutory
“employee” of Werner.
VI. CONCLUSION
We find no merit to Cruz’ argument that the trial court erred
in granting summary judgment in favor of Werner and in dis-
missing Cruz’ complaint as to Werner. Lopez Trucking was
found liable for Carman’s negligence under the doctrine of
respondeat superior, and neither party disputes that result. For
the foregoing reasons, we affirm the district court’s order of
summary judgment in favor of Werner.
A ffirmed.
71
Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62
Fed. Reg. 16,370, 16,407 (Apr. 4, 1997).
72
See Beavers v. Victorian, supra note 56.
73
See id.