Appeal from the Superior Court of the District of Columbia (CA8864-02) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB, GLICKMAN, and KRAMER, Associate Judges.
This action in tort was brought on October 11, 2002, by Molly C. Schecter against Circuit City, a retail chain which sells washing machines and other appliances, and Merchants Home Delivery (MHD), a company which arranges for the home delivery of Circuit City products. The suit was precipitated by events that occurred on February 8, 2000. On that date, on behalf of MHD, Alan Young, Jr., and Jason Brown delivered a new washing machine, which Mrs. Schecter had purchased from Circuit City, and they installed it in her home in Northwest, Washington, D.C. While at Mrs. Schecter's home, Young and Brown allegedly stole jewelry and other valuables.
At trial, Mrs. Schecter claimed that Young and Brown were employees of Circuit City and MHD, that the theft was committed by the two men while they were acting within the scope of their employment, and that both Circuit City and MHD were therefore vicariously liable for their employees' unlawful conduct. Mrs. Schecter also alleged that the defendants were directly liable for the negligent hiring, training, and supervision of Young and Brown. Circuit City and MHD contended that Young and Brown were not their employees, that Young was an "independent contractor," as provided in his written agreement with MHD, and that Brown was Young's helper and had no legal relationship with either defendant.
Beginning on July 19, 2004, the case was tried before a jury in the Superior Court. At the conclusion of the plaintiff's case, both defendants moved for judgment as a matter of law (JMOL), each defendant contending, inter alia, that no impartial jury could reasonably find that Young and Brown were the moving defendant's employees. The trial judge directed a verdict in favor of Circuit City, but denied MHD's motion. MHD renewed its motion after all of the evidence had been presented, and the judge granted judgment as a matter of law in MHD's favor, holding
1. that no employer-employee relationship between MHD and Young and Brown had been established;
2. that even if Young and Brown were MHD's employees, Young and Brown were not acting within the scope of their employment when they stole Mrs. Schecter's valuables; and
3. that because Young and Brown were not employees of MHD, Mrs. Schecter's claim of negligent supervision failed as a matter of law.
Viewing the record, as we must, in the light most favorable to Mrs. Schecter, we conclude that the question whether Young and Brown were employees of MHD should have been submitted to the jury. We agree with the trial judge, however, that as a matter of law, the two men were not acting within the scope of their employment when they misappropriated Mrs. Schecter's valuables. Finally, we conclude that the question whether MHD was negligent in its selection and supervision of its employees should have been submitted to the jury. Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion.*fn1
A. The Theft and Partial Recovery of Mrs. Schecter's Valuables
On February 8, 2000, Mrs. Schecter was eighty years old. A few days after the death of her husband in January of that year,*fn2 Mrs. Schecter's washing machine broke. On February 6, 2000, Mrs. Schecter purchased a new washing machine from the Circuit City store in Rockville, Maryland. At the time of purchase, Mrs. Schecter arranged with the Circuit City salesman to have the new washing machine delivered to her home in northwest Washington, D.C., and to have her old machine removed. The salesman told her that Circuit City would call her and schedule the delivery. The following day, a woman telephoned Mrs. Schecter, identified herself as representing Circuit City, and scheduled the delivery for the following afternoon. Mrs. Schecter testified that the woman said: "This is Circuit City calling, we're going to deliver your washing machine."
On February 8, 2000, two delivery men, later identified as Mr. Young and Mr. Brown, arrived at Mrs. Schecter's house on Juniper Street to install the new washing machine. The men told Mrs. Schecter that they were from Circuit City. The delivery men brought the washing machine into the house and carried it down to the basement. They told Mrs. Schecter that as soon as they had installed the new machine, they would show her how it worked. Mr. Young soon called Mrs. Schecter and asked her to come down to the basement. When Mrs. Schecter arrived, Mr. Young was completing the installation, and he proceeded to demonstrate the operation of the machine.
Mr. Young then began to remove the old washing machine from Mrs. Schecter's house. While he was doing so, the old machine apparently became jammed in the door leading out of the basement. Young asked Mrs. Schecter if she had a saw, and Mrs. Schecter suggested that he look in the kitchen cabinet while she searched for a saw in the basement. The search soon proved unnecessary, however, for Young was able to move the old machine out of the house. The two men then left with the old machine. They had been in Mrs. Schecter's home for approximately thirty minutes.
After Young and Brown had departed, Mrs. Schecter telephoned her daughter, Shirlee Blanken, who had previously arranged to take her grocery shopping. When Mrs. Blanken arrived a short time later, Mrs. Schecter checked her purse to make sure that she had her money and her shopping list. Finding no cash in her purse, Mrs. Schecter remarked that she "must be getting senile," and she went upstairs to get her money.
When Mrs. Schecter looked in her dresser drawer, she found the contents in disarray. She started searching for her jewelry, which she kept in her dresser drawers, and especially for two diamond rings. When she could not find the rings or her other jewelry, a now thoroughly alarmed Mrs. Schecter told her daughter that she had been robbed. Mrs. Blanken joined her mother in the search, but the two women were unable to find the rings. Additional valuables, which included, among other items, a necklace, pins, watches, and coins, were also missing, and Mrs. Schecter's money was also gone. Mrs. Blanken called her husband, William Blanken, and told him what had happened. She also called 911, and police officers promptly arrived to investigate.
On the following day, Mr. Blanken telephoned Circuit City on Mrs. Schecter's behalf, and he reported the theft. Mr. Blanken was advised by a Circuit City representative that MHD, not Circuit City, had delivered the washing machine to his mother-in-law's home.
Mr. Blanken telephoned MHD, and he was referred to Paul Fritz, who was in charge of MHD's Circuit City account. Mr. Fritz informed Mr. Blanken that Alan Young was the driver who had delivered the washing machine, and he gave Mr. Blanken Mr. Young's telephone number. Fritz told Blanken that Young worked for MHD.*fn3
Mr. Blanken then contacted Mr. Young, who agreed to meet him at Mr. Blanken's house. In what must surely have been a tense encounter, Blanken told Young that he would not press charges against him if Young returned the stolen items. Mr. Young had brought with him the less valuable stolen costume jewelry, as well as some coins. When Mr. Blanken determined that the diamond rings had not been returned, he asked Young where the rest of the missing valuables were. Young informed Blanken that Jason Brown had some of the stolen items, including the two diamond rings. Young also gave Blanken Brown's telephone number.
Continuing his investigation, Mr. Blanken next telephoned Jason Brown. He was unable to reach Jason Brown, but he spoke with Jason's father, James Brown. James Brown informed Mr. Blanken that he would speak to his son and contact Mr. Blanken the following day. The next day, Mrs. Lavinnia Brown, Jason Brown's mother, telephoned Mr. Blanken and told him that her son had stolen the two diamond rings and that Jason had pawned each at a different local pawnshop. Mrs. Brown then went to the two pawnshops, together with Mrs. Schecter and Mr. and Mrs. Blanken, and she redeemed the diamond rings and returned them to Mrs. Schecter. According to Mrs. Schecter, however, a number of other valuables, worth in excess of $3000, were never recovered.
B. The Relationship Between Circuit City, MHD, and Young and Brown
When Mrs. Schecter purchased her new washing machine, she was dealing, so far as she was aware, solely with Circuit City. In fact, she testified that she selected Circuit City, in part, because the firm advertised that it -- Circuit City -- would deliver and install the new machine and remove the old one. Nothing in the record suggests that Mrs. Schecter chose to deal with MHD, or with Mr. Young or Mr. Brown, or, indeed, that she had ever heard of any of the three. Ironically, however, any right that Mrs. Schecter may have to recover damages for a theft which occurred while, so far as she knew, Circuit City was installing a washing machine that Circuit City had sold her turns on the relationship between a different company -- MHD -- and the two delivery men whom, she believed, Circuit City had sent to install the machine.*fn4
The relationship between Mr. Young and MHD was set forth in a contract entitled "Independent Truckman's Agreement." The agreement states that the parties "intend to create an independent contractor relationship and not an employer-employee relationship." The contract was signed by Mr. Young on behalf of his company, "Young's Trucking Mecca." The contract required Young to hire his own personnel, use his own truck and equipment, and provide a performance bond for himself and his employees. The agreement also provides that Mr. Young "shall be responsible for the payment of wages and social security and withholding taxes for any of his employees." Further, the contract states:
In performing services under this Agreement, Contractor [Young] will direct the operation of any equipment in all respects and will determine the means of performance including but not limited to such matters as choice of any routes, points of service of equipment, rest stops, and timing and scheduling of customer deliveries. The parties intend to create an independent contractor relationship and not an employer-employee relationship.*fn5
There is evidence in the record, however, that suggests that while Mr. Young was an independent contractor in form, he may have been an employee in substance. The delivery drivers were hired in very much the same manner as employees are hired, and they were trained, monitored, and supervised very much as employees are trained, monitored, and supervised. Moreover, MHD exercised substantial control over the manner in which the delivery drivers performed their tasks.
Mr. Fritz testified that MHD retained delivery drivers by means of a recruiting department and through direct referrals. Fritz personally interviewed each prospective driver and decided whether or not the candidate should be "hired."*fn6 MHD performed a background check on each delivery driver who was hired, though not on the drivers' assistants. MHD claimed that the assistants, such as Jason Brown, were the driver's employees, not MHD's. MHD provided extensive training to its delivery drivers. According to Mr. Fritz, "[w]e would explain to them the ways of delivery process through Circuit City and what the rules and regulations were through their contract." Experienced delivery drivers spent a week with each new driver to instruct him on proper delivery procedures and methods.*fn7
MHD also kept close track of the activities of the delivery drivers, evaluating each driver for the quality of performance and the number of deliveries made. Customers were surveyed to check on the performance of the drivers, and those whose work MHD considered unsatisfactory were not retained. According to Mr. Fritz, MHD would "put together the routes for the delivery drivers," although each driver had the right to ask that his route be changed if he did not consider the route feasible. The drivers were directed to call in every half-hour and report their location to MHD.*fn8 The progress of the drivers was monitored on tracking boards in the MHD office.
The delivery drivers were required to wear MHD uniforms. Jason Brown's mother testified that she had seen her son wearing such a uniform. MHD also controlled the paper work used by the drivers. Circuit City provided MHD with a delivery ticket each time that a driver made a delivery. The drivers had to turn in the tickets on the morning after the delivery of the merchandise, so that MHD could calculate their compensation. The practical consequence of this arrangement, as Mr. Fritz acknowledged, was that "the next morning, [the delivery drivers] came into the dock, loaded their trucks, went out and made their home deliveries for the rest of the day, and then we would see them the next morning." A fair inference from this acknowledgment is that most of the drivers worked for MHD on a daily basis, rather as employees might be expected to work.
The delivery drivers were paid by the delivery, and they received checks from MHD twice per month. The amount of payment was based on the number of deliveries and the distances travelled. MHD also retained the right to discharge its delivery drivers, without notice if the discharge was for cause, and on sixty-days notice without cause. After Young and Brown were suspected of stealing Mrs. Schecter's valuables, Young was "suspended" for sixty days. Mr. Fritz called the sixty-day period "probation." After having been placed on "probation" for sixty days, Mr. Young left MHD and made no further deliveries for the company.
A. The Standard of Review
Mrs. Schecter's appeal is from the trial judge's order directing a verdict in MHD's favor; the court, in the words of Super. Ct. Civ. R. 50 (a), granted judgment in favor of the defendant as a matter of law. The question whether the trial judge properly directed a verdict, and thus took the case away from the jury, is one of law. Phillips v. District of Columbia, 714 A.2d 768, 772 (D.C. 1998). ...