           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
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 non-
moving 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).
                                               2
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.
                                               3
       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)).
                                                4
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 agent-
independent 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)).
                                                5
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.
                                              6
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.”).
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