                                                                                                          03/22/2017




                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     February 15, 2017 Session

    JOE PATTON ROGERS, ET AL. v. BRADLEY DEAN HADJU, ET AL.1

                      Appeal from the Circuit Court for Dyer County
                     No. 2014-CV-101 William B. Acree, Senior Judge
                          ___________________________________

                               No. W2016-00850-COA-R3-CV
                           ___________________________________

Appellants filed this lawsuit against Appellees for damages resulting from the alleged
negligence of Appellees’ subcontractor. The trial court granted summary judgment in
favor of Appellees, ruling that they could not be vicariously liable for the subcontractor’s
negligence because the uncontroverted facts conclusively established that the
subcontractor was an independent contractor. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Christi L. Dalton and Jack D. Lowery, Lafayette, Tennessee, and Christopher
Beauchamp, Lebanon, Tennessee, for the appellants, Joe Patton Rogers and Judy Rogers.

Nathan E. Shelby, Brandon J. Stout, and Addie M. Wilson, Jackson, Tennessee, for the
appellees, Kerr Brothers & Associates, Inc. and Traf-Mark Industries, LLC.

Matthew W. Willis and Lacee North Hudspeth, Dyersburg, Tennessee, for the appellee,
Ford Construction Company.


                                               OPINION

                           BACKGROUND AND PROCEDURAL HISTORY

1
  Although the defendant’s last name is spelled “Hadju” in the plaintiffs’ complaint and in the style of this
case, the defendant stated in his answer to the complaint that “Hajdu” is the correct spelling. We will
therefore use that spelling in this opinion.
       Ford Construction Company (“Ford Construction”) entered into a contract with the
Tennessee Department of Transportation to perform construction on U.S. Highway 412
in Dyer County, Tennessee. Ford Construction entered into a subcontract with Traf-Mark
Industries, LLC (“Traf-Mark”) for a portion of the work. Traf-Mark then entered into a
subcontract with Kerr Brothers and Associates, Inc. (“Kerr Brothers”). Kerr Brothers
then entered into a subcontract with Randy Hodges d/b/a RDH Contracting (“RDH
Contracting”).

       On December 19, 2013, employees of Ford Construction and RDH Contracting
were working in a cordoned off portion of the construction site when an employee of
Ford Construction, Joe Rogers, while attempting to cross a section of the highway to
reach his work site, was struck by a truck that was owned by RDH Contracting and being
backed up by one of its employees, Bradley Hajdu. The accident caused Mr. Rogers to
suffer permanent debilitating injuries.

        On December 16, 2014, Mr. Rogers and his wife, Judy Rogers (together,
“Appellants”), filed a complaint against Traf-Mark, Kerr Brothers, RDH Contracting, and
Mr. Hajdu in the Dyer County Circuit Court. The complaint alleged that Mr. Hajdu was
operating the truck negligently when it hit and ran over Mr. Rogers. The complaint
further alleged that Traf-Mark, Kerr Brothers, and RDH Contracting were vicariously
liable for Mr. Hajdu’s negligence because he was acting in the scope of his employment
with them at the time of the incident. In May 2014, the trial court entered a consent order
allowing Ford Construction to intervene in the lawsuit to protect its worker’s
compensation subrogation lien against any recovery by Mr. Rogers.

       Following a period of discovery, Traf-Mark and Kerr Brothers (hereinafter,
“Appellees”) filed a motion for summary judgment. In the motion and supporting
memorandum, Appellees argued that they were not liable for Mr. Hajdu’s negligent acts
because RDH Contracting and Mr. Hajdu were independent contractors, rather than
agents or employees, of Appellees. In support of that assertion, Appellees submitted the
affidavits of Traf-Mark’s president, Mike Tabor, and Kerr Brothers’ president, Robert
Mallory, Jr. The affidavits stated that Traf-Mark entered into a subcontract with Kerr
Brothers, who then entered into a subcontract with RDH Contracting to perform work on
an independent contractor basis. They further stated that Mr. Hajdu was an employee of
RDH Contracting and that Appellees did not pay RDH Contracting’s employees or
control the manner in which they performed their work. Instead, pursuant to their
contract, Kerr Brothers paid RDH Contracting, who in turn paid its employees.
Appellees also submitted the contracts between Traf-Mark and Kerr Brothers and
between Kerr Brothers and RDH Contracting.


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       In response to the motion for summary judgment, Appellants asserted that a trial
was necessary to resolve disputed facts regarding Appellees’ relationship with RDH
Contracting and Mr. Hajdu. In support of that assertion, Appellants cited the following
provisions of the contract between Kerr Brothers and RDH Contracting:

      [RDH Contracting] shall commence the Work when directed by [Kerr
      Brothers], and shall prosecute the Work at whatever rate of progress and
      whatever sequence as [Kerr Brothers] may direct. . . . [RDH Contracting]
      shall keep the Work area clean, neat and orderly, to the satisfaction of [Kerr
      Brothers]. . . . [Kerr Brothers] shall have the sole authority to determine
      the acceptability or unacceptability of the Work, to reject unacceptable
      Work, and any decision by [Kerr Brothers] as to any aspect of the Work
      shall be final.

      ...

      This Subcontract will terminate, or the Work will be suspended, to the
      extent that: (i) the Contract terminates or the Owner suspends the Work, in
      whole or in part, or (ii) [Kerr Brothers] gives written notice to [RDH
      Contracting] that this Subcontract is terminated or the Work is suspended,
      in whole or in part. In any of such events, [RDH Contracting] shall
      immediately suspend or terminate work as appropriate.

      ...

      [RDH Contracting] shall, before commencing the Work and at any time
      requested by [Kerr Brothers], furnish [Kerr Brothers] a written list of the
      names of all subcontractors, suppliers and any other entities that may
      furnish labor or materials in the prosecution of the Work. In any sub-
      contract or contract to procure materials or equipment [RDH Contracting]
      shall include a provision allowing for termination at [RDH Contracting’s]
      convenience without liability to [Kerr Brothers] or Owner, which [RDH
      Contracting] shall promptly exercise if requested by [Kerr Brothers].

Appellants argued that those provisions demonstrated Kerr Brothers’ right to control the
work of RDH Contracting and its employees as well as its right to terminate RDH
Contracting for any reason. They therefore argued that the contract, on its face, showed
that RDH Contracting was an agent of Kerr Brothers such that Kerr Brothers could be
liable for the negligence of RDH Contracting and its employees. Appellants cited similar
provisions of the contract between Traf-Mark and Kerr Brothers, which they argued
showed that Kerr Brothers was an agent of Traf-Mark such that Traf-Mark could be held
                                          -3-
liable for the negligence of Kerr Brothers and its sub-agents (RDH Contracting).
Appellants did not submit any affidavits or other evidence in response to Appellees’
motion for summary judgment.

        On March 28, 2016, following a hearing, the trial court entered an order granting
Appellees’ motion for summary judgment. The trial court explained that the contracts
between the parties were unambiguous and could not be interpreted to establish an
agency relationship between Appellees and RDH Contracting or its employees. As such,
the trial court held that RDH Contracting and Mr. Hajdu were independent contractors
and Appellees could not be held liable for their negligence. The trial court later certified
its summary judgment order as final pursuant to Tennessee Rule of Civil Procedure
54.02, and the Appellants timely filed a notice of appeal to this Court.2

                                              ISSUE

       Appellants present the following issue for review, as stated in their brief:

       1. Given that the parties are in dispute over whether the Defendant [Hajdu]
          was an agent or independent contractor of the Appellees Traf-Mark and
          Kerr Bros, did the trial court err when it granted summary judgment in
          favor of the Appellees?

                                    STANDARD OF REVIEW

        Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. On appeal, we review the trial
court’s ruling on a motion for summary judgment de novo with no presumption of
correctness. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103
(Tenn. 2010). In doing so, we make a fresh determination regarding whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Id.

        When the party moving for summary judgment will not have the burden of proof
at trial, it may satisfy its burden of production either (1) by affirmatively negating an
essential element of the nonmoving party’s claim or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish

2
  On April 28, 2016, the trial court ordered the underlying case be stayed pending resolution of its
summary judgment order.
                                               -4-
the nonmoving party’s claim or defense. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If the moving party fails to meet its initial
burden of production, then the nonmoving party’s burden is not triggered, and the court
should dismiss the motion for summary judgment. Town of Crossville Hous. Auth. v.
Murphy, 465 S.W.3d 574, 578-79 (Tenn. Ct. App. 2014) (citing Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 83 (Tenn. 2008)). If, however, the moving party makes a properly
supported motion for summary judgment, then the burden of production shifts to the
nonmoving party to demonstrate the existence of a disputed fact requiring trial. Id. at 578
(citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

        To survive a properly supported motion for summary judgment, the nonmoving
party “‘may not rest upon the mere allegations or denials of its pleading,’ but must
respond, and by affidavits or one of the other means provided in Tennessee Rule 56, ‘set
forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue
for trial.’” Rye, 477 S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06). The nonmoving
party must demonstrate the existence of specific facts in the record that could lead a
rational trier of fact to find in favor of the nonmoving party. Id. If adequate time for
discovery has passed and the nonmoving party’s evidence at the summary judgment stage
is insufficient to establish the existence of a genuine issue of material fact for trial, then
the motion for summary judgment should be granted. Id. As such, even when the
determinative issue is ordinarily a question of fact for the jury, summary judgment is
appropriate if the uncontroverted facts and inferences to be drawn from the facts make it
so clear that a reasonable person can reach only one conclusion. White v. Lawrence, 975
S.W.2d 525, 529-30 (Tenn. 1998).

                                        DISCUSSION

        “Where one person has sustained an injury from the negligence of another, he
must, in general, proceed against him by whose negligence the injury was occasioned.”
Keller v. Fed. Bob Brannon Truck Co., 269 S.W. 914, 917 (Tenn. 1925) (quoting King v.
New York Cent. & Hudson River R.R. Co., 66 N.Y. 181, 184 (1876)). Nevertheless, the
doctrine of respondeat superior permits a principal to be held liable for the negligent acts
of its agent. Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 343 (Tenn.
2002). Consequently, a plaintiff may rely on the doctrine of respondeat superior to
extend liability to an employer for the negligent acts of its employee when the employee
was acting within the scope of his or her employment. Russell v. City of Memphis, 106
S.W.3d 655, 657 (Tenn. Ct. App. 2002). While an employer may be held liable for the
negligence of its employee, however, they are generally not liable for the negligence of
independent contractors. Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383,
384 (Tenn. 2002).

                                            -5-
        In cases requiring the classification of a person as an employee or an independent
contractor, the nature of the relationship is determined by examining the agreement
between the parties and the facts of the particular case. See Youngblood v. Wall, 815
S.W.2d 512, 516 (Tenn. Ct. App. 1991). Thus, while the parties’ written agreement is a
relevant factor, their conduct is also relevant. Sodexho Mgmt., Inc. v. Johnson, 174
S.W.3d 174, 180 (Tenn. Ct. App. 2004). In determining whether an individual is an
employee or an independent contractor, Tennessee courts are guided by the following
factors: (1) the right to control the conduct of the work, (2) the right of termination, (3)
method of payment, (4) whether or not the worker furnishes his own helpers, (5) whether
or not the worker furnishes his own tools, (6) self-scheduling of working hours, and (7)
freedom to render services to other entities. Goodale v. Langenberg, 243 S.W.3d 575,
582-83 (Tenn. Ct. App. 2007). Those factors, however, are not absolute, and no single
factor is conclusive. Id. at 583. While the “right to control” is the primary test, it is not
exclusive, and the entire relationship must be examined. Id.

        Appellees argue the trial court’s grant of summary judgment should be affirmed in
light of this Court’s opinion in Zimmerman v. Elm Hill Marina, 839 S.W.2d 760 (Tenn.
Ct. App. 1992). In that case, the plaintiff sued a marina for damages caused by the
alleged negligence of its security guard. Zimmerman, 839 S.W.2d at 762. The marina
filed a motion for summary judgment based on its assertion that the security guard was an
independent contractor. Id. In support of the motion, the marina filed the affidavit of its
president, which stated that the marina entered into a contract with a security company
for security services on an independent contractor basis. Id. The affidavit stated that the
marina did not control the manner in which the security company’s guards performed
their duties nor did it pay the security guards. Id. Instead, pursuant to the contract, the
marina paid the security company, which in turn paid the security guards. Id. In
response to the motion, the plaintiff relied solely on her complaint and the contract
between the marina and security company. Id. at 763. She cited provisions of the
contract that stated the marina would control the hours and number of security guards,
that the marina would make payments to the security company, and that the security
guards would perform services pursuant to the marina’s guidelines. Id. The trial court
granted the marina’s motion for summary judgment, and the plaintiff appealed. Id. at
761. On appeal, this Court held that the plaintiff’s response failed to set forth facts, by
affidavit or otherwise, showing that either the security company or the security guard was
an employee of the marina. Id. at 763. The Court explained that the plaintiff’s reliance
on the contract was insufficient to create a genuine issue of material fact once the marina
set forth facts showing an independent contractor relationship. Id. In doing so, the Court
noted that the contract between the marina and the security company specifically referred
to the security company and its guards as independent contractors. Id.


                                            -6-
       For their part, Appellants contend that this case is distinguishable from
Zimmerman. In support of that argument, they point out that, unlike the contract between
the marina and security company in Zimmerman, the contracts in this case do not refer to
RDH Contracting or its employees as independent contractors. They also argue that the
contracts in this case afford Appellees greater control over RDH Contracting and its
employees than the contracts in Zimmerman afforded the marina over the security
company and its guards.

       We are not persuaded by Appellants’ attempt to distinguish this case from
Zimmerman. Although the contracts in this case do not define RDH Contracting and its
employees as independent contractors, they do not define them as employees either.
Even if they did, however, the terms used in a contract are not determinative of whether a
party is an independent contractor or an employee. Carbide & Carbon Chems. Corp. v.
Carson, 239 S.W.2d 27, 33 (Tenn. 1951). Additionally, the contracts in this case do not
afford Appellees the sort of control over RDH Contracting and its employees necessary
to establish an agency relationship. The mere fact that the contractor reserves the right to
supervise the work to ensure that the end result conforms to the plans does not make the
subcontractor an employee when the contractor does not control the actual conduct or
method of the work. Smart v. Embry, 348 S.W.2d 322, 324-25 (Tenn. 1961). Here,
Appellees retained control over the commencement, speed, and sequence of RDH
Contracting’s work to ensure that it conformed to the project as a whole, but they did not
retain control over the actual conduct or method of RDH Contracting’s work. Likewise,
the fact that a contractor may breach its contract with a subcontractor by terminating its
services is not equivalent to the unconditional right to terminate the subcontractor or its
employees without cause. See Wilson v. Thompson Const. Co., 86 S.W.3d 536, 542
(Tenn. Ct. App. 2001). Here, Appellees did not retain a unilateral right to hire or
terminate RDH Contracting’s employees. Moreover, application of the remaining factors
set forth above to the uncontroverted evidence only supports the conclusion that RDH
Contracting and its employees were independent contractors. Appellees did not pay
RDH Contracting or its employees. Rather, Kerr Brothers paid RDH Contracting, who in
turn paid its employees. RDH Contracting was required to “procure and furnish all
materials, labor, supervision, equipment, facilities, licenses, and permits” necessary to
perform the work. Finally, the contracts between the parties did not prohibit RDH
Contracting from self-scheduling its hours or rendering services to other entities.

       Ford Construction also submitted a brief on appeal in which it cites the Tennessee
Supreme Court’s opinion in Federal Insurance Co. v. Winters, 354 S.W.3d 287, 295
(Tenn. 2011), for the proposition that the non-delegable, contractual duty to perform
work in a “careful, skillful, diligent, and workmanlike manner” gave Appellees additional
control over RDH Contracting’s work. As Ford Construction acknowledges, however,
that case involved a claim for breach of contract, not a claim for negligence. Winters,
                                           -7-
354 S.W.3d at 290. Indeed, the Winters Court expressly stated that the imposition of that
separate contractual duty does not vitiate the common law rule that employers are
generally not liable for the negligence of their independent contractors. Id. at 295
(“Because this non-delegable duty arises from the contract entered into by the contractor,
the rule immunizing a contractor from the acts of an independent subcontractor has no
application to these separate contractual responsibilities.”). As such, we conclude that it
has no bearing on our analysis in this case.

       Having reviewed the record and considered the parties’ arguments, we conclude
that the trial court’s decision to grant summary judgment in favor of Appellees was
appropriate. Appellees filed a properly supported motion for summary judgment in
which they demonstrated that RDH Contracting and its employees were independent
contractors. In response, Appellants failed to demonstrate the existence of specific facts
that could lead a rational trier of fact to find in their favor. As such, the uncontroverted
facts conclusively established that RDH Contracting and its employees were independent
contractors.

                                      CONCLUSION

      For the foregoing reasons, the judgment of the trial court is affirmed, and this case
is remanded for such further proceedings as are necessary and consistent with this
opinion. Costs of this appeal are taxed to the appellants, Joe Patton Rogers and Judy
Rogers, and their sureties, for which execution may issue if necessary.


                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




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