Opinion
69012.
Decided June 19, 2006.
Brian E. O'Connell, Jr., Esq., Olean, New York, for the plaintiff.
V. Christopher Potenza, Esq., Buffalo, New York, for the defendant Shields and Rubek.
Richard Saraf, Esq., Buffalo, New York, for the defendant Town of Franklinville.
Defendant Don Shields is a truck driver who has his own business, defendant Don Shields Trucking. From time to time, Shields is hired by defendant Town of Franklinville. On those occasions he bills the town for his hours and the use of his equipment.
On September 18, 2003, the town's highway superintendent, William Weller, called Shields and asked him to provide two trucks the following day. On the 19th, Wayne Rubek, who occasionally drove a truck for Shields, drove his own car to Shields' home at approximately 7:00 a.m. He picked up a dump truck and headed to the Franklinville town barns for his assignment. As Rubek was driving south on Route 16, he failed to notice that the dump truck box was raised. As he passed through the Town of Machias, the raised box struck a railroad underpass, throwing the truck into the opposite lane of traffic where it struck a Coach USA bus being operated by plaintiff Christopher Ruszkowski, who was seriously injured.
Plaintiff commenced this lawsuit against Shields individually as well as Shields Trucking, Rubeck and the Town of Franklinville. The town has now moved to dismiss all claims against the town and plaintiff has cross moved for summary judgment against all defendants on the issue of liability. For reasons that follow, plaintiff's cross motion for summary judgement against Shields, Shields Trucking and Rubek is granted but is denied as to Franklinville. Franklinville's motion to dismiss the respondeat superior claim against the town is granted.
Driving with the dump truck box raised, striking a railroad overpass, careening into the opposite lane of traffic and colliding with an oncoming vehicle is clearly negligent and the non-municipal defendants raise no serious challenge to plaintiff's summary judgment motion as to them. Accordingly, that motion is granted ( see Clough v. Szymanski, 26 AD3d 894, 809 NYS2d 707 [4th Dept. 2006]; O'Connor v. Lopane, 24 AD3d 426, 805 NYS2d 125 [2nd Dept. 2005]; Matte v. Hall, 20 AD3d 898, 798 NYS2d 829 [4th Dept. 2005]; Wasson v. Szafarski, 6 AD3d 1182, 776 NYS2d 423 [4th Dept. 2004]; Studer v. Whitesell, 302 AD2d 1009, 755 NYS2d 675 [4th Dept. 2003]; Gaden v. Oliva, 294 AD2d 397, 742 NYS2d 122 [2nd Dept. 2002]; Gouchie v. Gill, 198 AD2d 862, 605 NYS2d 709 [4th Dept. 1993]).
The more difficult issues are plaintiff's contentions that Shields and Rubek were employees of the town, rather than independent contractors, and that, at the time of the accident, Rubek was acting within the scope of his employment. Plaintiff must prevail on both contentions in order to impose liability on the town.
We begin with the general rule that a principal is not liable for the negligence of an independent contractor ( see Chainani v. Board of Education of the City of New York, 87 NY2d 370, 639 NYS2d 971). In determining whether someone is an individual contractor or an employee, the primary factual issue is whether the principal controls the methods and means by which the independent contractor performs the work ( see Harjes v. Parisio, 1 AD3d 680, 766 NYS2d 270 [3rd Dept. 2003]; Melbourne v. New York Life Ins. Co., 271 AD2d 296, 707 NYS2d 64 [1st Dept. 2000]). Other factors may include whether the individual supplies his own equipment, how the person is paid and whether social security and taxes are withheld ( Harjes, 1 AD3d 680, 766 NYS2d 270 [3rd Dept. 2003]; Green v. Osterhoudt, 251 AD2d 786, 673 NYS2d 272 [3rd Dept. 1998]). General supervisory power over an independent contractor is insufficient to impose liability on the principal ( Melbourne, 271 AD2d 296, 707 NYS2d 64 [1st Dept. 2000]; Lazo v. Mak's Trading Co., 199 AD2d 165, 605 NYS2d 272 [1st Dept. 1993] affd. 84 NY2d 896, 620 NYS2d 794).
The determination of whether a person is an employee or independent contractor is typically a question of fact ( see Crage v. Kissing Bridge Ski Area, 186 AD2d 987, 588 NYS2d 449 [4th Dept. 1992], lv. denied 81 NY2d 702, 594 NYS2d 716; Harjes v. Parisio, 1 AD3d 680, 766 NYS2d 270 [3rd Dept. 2003]). However, where the proof on this issue presents no conflict about the evidence, the court can make that determination as a matter of law ( Id., see also Melbourne v. New York Life Ins. Co., 271 AD2d 296, 707 NYS2d 64 [1st Dept. 2000]).
Turning to the most important factor, whether the principal controls the method and means by which the individual contractor performs the work, plaintiff relies on the deposition of William Weller, the town's highway superintendent, that he "would explain to him [person at a job site] what I would like done." Weller also said he would direct the work of individual contractors once they were at the site. There might be a question of fact if this accident occurred after Rubek had started the job. However, the court sees no factual demonstration that the town had any control over Shields or Rubek as they drove to work or that the town ever attempted to exercise any such control. Without that direction and control, the town cannot be liable for their negligence before Shields or Rubek started a job ( see Chainani v. Board of Education, 87 NY2d 370, 639 NYS2d 971; Pannone v. Burke, 149 AD2d 673, 540 NYS2d 313 [2nd Dept. 1989]).
The other factors also seem to weigh in the town's favor. The use of one's own equipment on the job is a factor which would appear to weigh on the side of finding that the driver was an independent contractor ( see DeFeo v. Frank Lambic, Inc., 146 AD2d 521, 536 NYS2d 459 [1st Dept. 1989]; Swarts v. Country Log Homes, 135 AD2d 807, 522 NYS2d 911 [2nd Dept. 1987]; Shapiro v. Robinson, 102 AD2d 822, 476 NYS2d 596 [1st Dept. 1984] affd. 63 NYS2d 896, 483 NYS2d 203 [1984]).
The fact that social security and income taxes were not withheld from the town's payments to Shields (who in turn paid Rubek) also weighs on the side of finding that Shields and Rubek were independent contractors ( see Harjes v. Parisio, 1 AD3d 680, 766 NYS2d 270 [3rd Dept. 2003]; Green v. Osterhoudt, 251 AD2d 786, 673 NYS2d 272 [3rd Dept. 1998]; cf. Carrion v. Orbit Messenger, Inc., 82 NY2d 742, 602 NYS2d 325).
Even if Shields and Rubek could be deemed employees of the town, the town would still not be liable for this accident. In Lundberg v. State of New York ( 25 NY2d 467, 306 NYS2d 947), the court noted the general rule that an employee, while driving to and from work, is not acting within the scope of his employment. In Lundberg, the employee was based in Buffalo and was temporarily assigned to Salamanca. Because of the distance involved, he stayed in Salamanca during the week and returned home on weekends. While returning to Salamanca on a Monday morning, he was involved in an accident which killed the other driver. The court held that the employee responsible for the accident was not driving in furtherance of his work at the time of the accident and, therefore, the employer was not liable. That remains the general rule in New York ( see Cicatello v. Sobierajski, 295 AD2d 974, 743 NYS2d 781 [4th Dept. 2002]; Shumway v. Geneva General Hosp., 233 AD2d 868, 649 NYS2d 288 [4th Dept. 1996]; Correa v. Baptiste, 303 AD2d 355, 755 NYS2d 655 [2nd Dept. 2003]).
One of several exceptions to the general rule exists when an employee uses his vehicle in furtherance of his work and is under the employer's control from the time he leaves his home until the time he returns ( Lundberg, 25 NY2d 467, 306 NYS2d 947; see also Virtuoso v. Pepsi-Cola Co., 286 AD2d 868, 730 NYS2d 601 [4th Dept. 2001]). For example, a sales person with no permanent base of employment who uses her vehicle to obtain sales, might fall under this exception ( see McBride v. Schenectady County, 110 AD2d 1000, 488 NYS2d 288 [3rd Dept. 1985]). This case, however, presents nothing more than the usual case of a person driving to her place of employment.
Accordingly, the claim based on the allegation that Shields and Rubek were employees of the town and were acting within the scope of their employment must be dismissed. Because there is no motion to dismiss the negligent hiring cause of action, that claim will remain for trial. Submit order on notice.