Cruz v. Lopez, 301 Neb. 531

Background

On June 7, 2012, minor Hazel Cruz was injured in a vehicle accident caused by Lyle Carman, an employee of Lopez Trucking; Carman tested positive for amphetamine and methamphetamine.
Lopez Trucking (Lopez) was a registered motor carrier operating under its own DOT number; Werner Construction (Werner) was the general contractor on the project and also a registered motor carrier.
Lopez Trucking had an oral contract with Werner to haul millings from a construction site to a plant; drivers (including Carman) used Lopez-owned trucks, kept on Lopez’s account, and were directed day-to-day by Lopez, not Werner.
Plaintiff Edgar Cruz sued Carman, Lopez, and Werner, alleging vicarious liability against Werner under common-law exceptions (control / nondelegable duty) and under Nebraska’s adoption of portions of the Federal Motor Carrier Safety Regulations (statutory employee theory).
The district court granted summary judgment for Werner, finding Lopez Trucking was an independent contractor, Werner did not exercise substantial control over the work that caused the injury, no nondelegable duty was shown, and the regulatory definitions did not make Carman Werner’s statutory employee.
On appeal the Nebraska Supreme Court affirmed, holding: (1) as a matter of law Carman was not Werner’s common-law employee; (2) none of the recognized exceptions to nonliability applied; and (3) the adopted motor-carrier regulations did not render Carman a statutory employee of Werner.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Carman a common-law employee of Werner?	Cruz: factors (some control, daily reports, scheduling) show an employment relationship.	Werner: Lopez Trucking supplied trucks, paid drivers, controlled means/methods; Werner only controlled end product.	No — as a matter of law Carman was not Werner’s employee; overall factors indicate independent-contractor relationship.
Did Werner retain sufficient control over the work to be vicariously liable?	Cruz: Werner set days, directed site/hauling, required driver reports — showing substantial control.	Werner: control was limited to end product; no possession/control of vehicles; no control of routes or hiring/testing.	No — control was not substantial or related to the cause of injury; exception to nonliability fails.
Did Werner owe/ breach a nondelegable duty (premises, statute, or special danger)?	Cruz: contract/bid obligations and general safety promises imposed nondelegable duties, including drug testing.	Werner: contract language did not create nondelegable duties; accident did not occur on premises Werner controlled; driving an empty truck is not a special risk.	No — no evidence Werner had possession/control of premises, no specific statutory nondelegable duty shown, and no special hazard existed.
Is Carman a "statutory employee" of Werner under adopted FMCSR definitions?	Cruz: FMCSR definitions of "employee/employer" and adoption by Nebraska create vicarious liability for carrier-lessee.	Werner: both parties were registered motor carriers with separate DOT numbers; the adopted provisions do not cover lease-evading sections; a registered motor carrier/employer cannot simultaneously be the employee of another carrier under the definitions.	No — under the adopted regulations and definitions, Carman (employee of Lopez Trucking) was not Werner’s statutory employee; summary judgment affirmed.

Key Cases Cited

Mays v. Midnite Dreams, 300 Neb. 485 (summary judgment / employee vs. independent contractor factors)
Gaytan v. Wal-Mart, 289 Neb. 49 (control/nondelegable-duty exceptions to independent-contractor nonliability)
Rodriguez v. Catholic Health Initiatives, 297 Neb. 1 (respondeat superior principles)
Kime v. Hobbs, 252 Neb. 407 (operation of vehicles not inherently special danger; nondelegable-duty analysis)
Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 (nondelegable duty where owner maintained possession/control of premises)