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Bell v. VPSI, Inc. - 205 S.W.3d 706 (Tex. App. 2006)

Rule:

In order for vicarious liability to attach, a general contractor's retained right of control must be more than a general right to order the work to start or stop, to inspect progress, or to receive reports. The retained right of control must extend to the operative details of the contractor's work so that he is not free to do the work in his own way. The duty is commensurate with the degree of control retained by the general contractor. Additionally, such liability exists only when the retained control relates to the injury-producing activity itself.

Facts:

Defendant Transportation Authority ("Authority") was a regional political subdivision of the State of Texas that provided public transportation services in and around Tarrant County. Defendant VPSI, Inc., was provided and operated a commuter vanpool program for the authority. Under the vanpool program, drivers, passengers, and their employers were solicited by the Authority and VPSI to participate in the program. The relationship between VPSI, the Authority, and the driver was governed by a contract. Homer Bell, the husband of plaintiff Linda Bell, executed a contract with the Authority and VPSI to drive for the program. While riding as a passenger in van driven by Homer, Linda was injured when the van as involved in accident. Linda filed a lawsuit in Texas state court against VPSI and the Authority asserting they were vicariously liable for her injuries. On the parties' motions on the issue of vicarious liability, the trial court granted summary judgment in favor of VPSI and the Authority and denied Linda's motion. Linda appealed.

Issue:

Was Homer Bell, the driver of the van in which Linda was riding at the time of the accident, an independent contractor?

Answer:

Yes.

Conclusion:

The court of appeals affirmed the trial court's judgment. The court held that the Authority and VPSI conclusively established by the express terms of the contract that Homer Bell was an independent contractor. Further, it was undisputed that the accident happened on a Saturday, outside the commuting period. Any presumption that Homer was within the course and scope of employment was rebutted by undisputed evidence that he was on personal business for the three hours prior to the accident. Also, neither the Authority or VPSI retained sufficient contractual right of control to impose an independent duty to members of the traveling public, including Linda Bell, the passenger, to ensure that Homer did not drive at an excessive rate of speed. The summary judgment evidence conclusively established that there was no monetary interest shared among the Authority and VPSI and Homer without special or distinguishing characteristics.

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