Employer and Employee--negligent hiring--independent contractor
In a negligent hiring case against defendant Regional Acceptance Corporation (RAC)
based on defendant Lancaster's alleged assault of plaintiff in the course of repossessing plaintiff's
automobile, the trial court did not err in granting summary judgment under N.C.G.S. § 1A-1,
Rule 56(e) in favor of defendant RAC because: (1) Lancaster was an independent contractor and
not an employee of RAC since Lancaster alone controlled the method and manner of performing
the tasks for which he was hired; (2) none of the evidence reveals that RAC should have known
of Lancaster's alleged aggressive behavior since Lancaster has never been involved in, or accused
of, aggressive behavior prior to his encounter with plaintiff; and (3) the activity of repossession of
automobiles is not a nondelegable duty which would cause RAC to be responsible for the torts of
an independent contractor.
Appeal by plaintiff from summary judgment entered 10 May
1999 by Judge Henry W. Hight, Jr., in Vance County Superior
Court. Heard in the Court of Appeals 16 May 2000.
Harvey D. Jackson for plaintiff appellant.
Young Moore and Henderson, P.A., by Robert C. Paschal, for
Regional Acceptance Corporation defendant appellee.
HORTON, Judge.
On 21 October 1996, Shirley Davis Jiggetts (now, Yancey)
(plaintiff) filed this action against Michael Lancaster and
Regional Acceptance Corporation (RAC) alleging that defendant
Lancaster assaulted her on 30 September 1993 in the course of
repossessing her automobile; that Lancaster was employed by RAC;
that RAC was negligent in hiring Lancaster to repossess
plaintiff's vehicle; that plaintiff was injured as the result of
the assault; and that Lancaster and RAC are jointly and severally
liable for her damages. Plaintiff never obtained service onMichael Lancaster and he is not a party to this appeal.
Defendant RAC moved for summary judgment, which motion wasallowed. Plaintiff appealed.
RAC argued below that Lancaster was an independent
contractor hired to repossess plaintiff's automobile, and was not
an employee of RAC. In support of its motion, RAC introduced the
affidavit of Lancaster to the effect that he did business as
Interstate Recovery, and was hired "[o]n a fee for service basis
. . . by finance companies to repossess and take lawful custody
of collateral pledged by debtors to secure loans from finance
companies." Lancaster averred that he had never been an employee
of RAC, that he negotiated with RAC with respect to the fees he
charged it, and that he was paid separately for each job.
Lancaster stated that he "alone control[s] the method[] and
manner of performing the tasks for which [he is] hired. Regional
Acceptance Corporation has at no point had control or exercised
the right to control the details of the jobs [he performs] for
them." Finally, Lancaster stated that he had no criminal record,
and had no previous complaints against him based on his actions
in repossessing secured collateral.
A senior vice-president of RAC also submitted an affidavit
confirming the statements in Lancaster's affidavit. His
affidavit further stated that Lancaster had never previously been
charged with assault and neither had a physical encounter with
someone whose car was being repossessed, nor had ever exhibitedaggressive behavior towards any of RAC's debtors.
Plaintiff submitted an affidavit in response to the motion
for summary judgment describing Lancaster's actions when trying
to repossess her automobile, including allegations that he pushed
her to the ground twice and injured her knee. Plaintiff did not
submit any affidavits or other material relating to the questionof Lancaster's status as an independent contractor. As a general
rule, "an employer or contractee is not liable for the torts of
an independent contractor committed in the performance of the
contracted work. However, a condition prescribed to relieve an
employer from liability for the negligent acts of an independent
contractor employed by him is that he shall have exercised due
care to secure a competent contractor for the work." Page v.
Sloan, 12 N.C. App. 433, 439, 183 S.E.2d 813, 817 (citations
omitted), cert. allowed, 279 N.C. 727, 184 S.E.2d 886 (1971),
aff'd, 281 N.C. 697, 190 S.E.2d 189 (1972). "The vital test [of
one being an independent contractor] is to be found in the fact
that the employer has or has not retained the right of control or
superintendence over the contractor or employee as to details."
Hayes v. Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 140
(1944).
Here, defendant RAC offered affidavits to support its motion
for summary judgment, and plaintiff chose not to address either
of these dispositive issues in her affidavit. Rule 56 of our
Rules of Civil Procedure provides in pertinent part that
[w]hen a motion for summary judgment is made
and supported as provided in this rule, an
adverse party may not rest upon the mere
allegations or denials of his pleading, but
his response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial. If he does not so
respond, summary judgment, if appropriate,
shall be entered against him.
N.C. Gen. Stat. § 1A-1, Rule 56(e) (1999) (emphasis added).
Here, plaintiff has not set forth specific facts showing that
there is a genuine issue for trial. Consequently, we are unable
to hold that a genuine issue of material fact exists with regard
to Lancaster's relationship to RAC. Further, plaintiff submitted
nothing to raise an issue of material fact with regard to RAC's
allegedly negligent hiring of Lancaster. None of the evidence
before the trial court supports plaintiff's claim that RAC should
have known of Lancaster's alleged penchant for aggressive
behavior and the likelihood that he would assault plaintiff. What
evidence there is tends to show that Lancaster has never been
involved in, or accused of, aggressive behavior prior to his
encounter with the plaintiff.
Finally, plaintiff argues that the duty to repossess
collateral in a peaceful manner is a nondelegable duty. Thus,
RAC is responsible, according to plaintiff, for any actions of
Lancaster in carrying out the repossession of her automobile. In
some instances, an employer may be responsible for the torts of
an independent contractor when the independent contractor is
engaged in "peculiarly risky activities" for which "precautionary
methods" must be adopted. Deitz v. Jackson, 57 N.C. App. 275,
279, 291 S.E.2d 282, 285 (1982). Here, unlike the situation in
Deitz, there are no allegations in either plaintiff's complaint
or affidavit that the repossession of secured collateral is a
"peculiarly risky" activity or that there is some substantialdanger inherent in the business of repossession of automobiles.
The affidavits submitted by defendant RAC support its position
that it has had no complaints in the past regarding the
activities of Lancaster in carrying out repossessions for it,
that Lancaster has no previous charges of assault on its debtors,
nor does he have a reputation for aggressive behavior. Nothing
in this record supports the view that the activity of
repossession of automobiles is inherently dangerous, and
plaintiff does not cite authority supporting such a view.
Further, we are not convinced by plaintiff's argument that public
policy requires such a result. Consequently, even assuming the
question is properly before us, we decline to extend the doctrine
of nondelegable duties to the extent sought by plaintiff.
There being no genuine issues of material fact, the judgment
of the trial court is
Affirmed.
Judges GREENE and HUNTER concur.
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