321 P.3d 218
Utah Ct. App.2014Background
- On Aug. 14, 2009 Castellanos was forcibly removed from a Tommy John bar by security guards employed by Thor Staffing (an independent contractor). Castellanos sued Tommy John alleging assault, battery, false imprisonment (vicarious liability) and negligent hiring/supervision/retention of the guards.
- Tommy John had an Independent Contractor agreement with Thor Staffing that expressly labeled Thor as an independent contractor, required Thor to use its own procedures and skill, and disclaimed training or control by Tommy John.
- It is undisputed Tommy John neither trained nor directed Thor’s guards nor retained control over their means and methods; Thor Staffing hired and supervised the guards.
- Tommy John moved for summary judgment arguing (1) it cannot be vicariously liable for intentional torts of an independent contractor’s employees absent an exception, and (2) it had no duty to supervise/hire Thor’s employees.
- Castellanos argued exceptions applied: retained control, inherently dangerous work (security), and nondelegable duty of premises owners; he also asserted disputed facts precluded summary judgment on negligent hiring/supervision/retention.
- The district court granted summary judgment for Tommy John; the appellate court affirmed, finding none of the exceptions applied and that Tommy John had no duty to hire/supervise Thor’s employees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tommy John is vicariously liable under the retained-control exception | Castellanos: owner retained control over hours/locations and exercised involvement (owner pointed out patron to police) so retained-control applies | Tommy John: agreement and undisputed facts show no active participation in means/methods of security; no control over injury-causing conduct | Held: No retained-control — Tommy John did not direct means/methods related to the injury; summary judgment affirmed |
| Whether security work is "inherently dangerous" so exceptions to nonliability apply | Castellanos: security work entails use of force and risk of wrongful removals, so inherently dangerous | Tommy John: security services are not inherently dangerous; no weapons here; purpose is to reduce risk | Held: Provision of security is not inherently dangerous as a matter of law here; exception does not apply |
| Whether business owner has a nondelegable duty to provide security (premises duty) | Castellanos: premises owners cannot delegate duty to keep invitees safe — duty includes protection from security personnel | Tommy John: nondelegable duty limited to premises conditions; no evidence owner knew guards would commit intentional torts; Price/Utah cases limit expansion | Held: No nondelegable duty absent evidence owner knew or should have known security personnel were likely to commit intentional torts; summary judgment affirmed |
| Whether Tommy John is directly liable for negligent hiring, supervision, or retention | Castellanos: inadequate investigation of Thor and guards created inference of negligent hiring/supervision | Tommy John: guards were Thor employees; plaintiff did not allege negligent hiring of Thor; Tommy John had no duty to hire/supervise Thor’s employees | Held: Plaintiff alleged negligence only as to individual guards (Thor’s employees) not to the contractor; no duty shown — summary judgment proper |
Key Cases Cited
- Magana v. Dave Roth Constr., 215 P.3d 143 (Utah 2009) (retained-control/active participation standard for independent contractor liability)
- Thompson v. Jess, 979 P.2d 322 (Utah 1999) (discussion of Restatement exceptions and active participation standard)
- Price v. Smith's Food & Drug Ctrs., Inc., 252 P.3d 365 (Utah Ct. App. 2011) (nondelegable duty of premises owner to keep premises safe and limits on delegation)
- Gleason v. Salt Lake City, 74 P.2d 1225 (Utah 1937) (recognition of inherently dangerous-work exception to nonliability rule)
- Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006) (refusal to treat provision of security as a categorical nondelegable duty)
- Gray v. Scott, 565 P.2d 76 (Utah 1977) (premises possessor’s duty to protect patrons arises when possessor knows or should know criminal acts are likely)