Mountaire Farms, Inc. v. Williams, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY MO UNT AIRE FAR MS, IN C., a Delaware corporation, Plaintiff, v. CARLOS W ILLIAMS and MONTY D. HALL, Defendants. Date Submitted: Date Decided: ) ) ) ) ) C.A. No. 03C-10-002-RFS ) ) ) ) April 22, 2005 April 25, 2005 ORDER WHEREA S, trial was held on Wednesday, April 6, 2005, with closing argument on Friday, April 22, 2005; WHEREA S, as a consequence of the pretrial stipulation and by trial, the plaintiff established a prima fac ie case for br each of c ontract and responde nt superior liab ility against defendant, C arlos Williams (hereafter W illiams ); WHE REA S, on Au gust 3, 200 4, default jud gment w as entered a gainst defe ndant, Monty D. Ha ll (hereafter Hall ); WHEREA S, by agreement, the counterclaim previously filed by Williams was dismissed; NOW TH EREFORE, on this 25th day of April, 2005, the following findings of 1 fact and conclusions of law are made. Findings of Fact (1) Mountaire Farms, Inc. (hereafter Mountaire ) hired Williams to deliver produce from its Selbyville, Delaware plant to two locations in New York State on or about February 20-21, 2003. (2) Williams owned two trucks which he used to haul frozen chicken produce from Mountaire, Perdue Farms and Allen s Hatchery, which are major chicken suppliers. (3) Williams had been in this business since 1986. (4) William s would d rive one of the trucks h imself and hired a drive r to operate the other one. (5) On or about February 21, 2003, Williams hired Hall to drive Williams 1999 Freightline Corp. truck. Hall was to pick up frozen chicken produce from Mountaire and to deliver it to New York. (6) Hall w as acting on Williams b ehalf to fu lfill Williams c ontract with Mountaire. (7) W hen hirin g Ha ll, W illiam s met with him pers onally. (8) Hall con tacted William s through a n advertisem ent that W illiams had p laced in a local paper. (9) Williams hired Hall to pick up and deliver a load of frozen chicken produce on or about February 20, 2003 from one of the three chicken suppliers. 2 (10) Concerning Mountaire, Williams provided Hall with a CB radio, cell phone, and expense money to keep in communication with him. Hall was to deliver the produce to New York on February 23, 2003. (11) Hall was to receive a percentage of the load as a salary, and Williams hired him as his employee. Williams practice was to pay drivers as employees with the use of W-2 forms. Williams intended to withhold social security and other items required by the W-2 fo rm for H all. (12) Williams had control over how Hall performed his job. The 1999 Freightliner truck wa s a valuable piece of eq uipment. T he audio e quipmen t gave W illiams the ability to specifically direct Hall. Further, Hall was directed to follow specific routes to the New York destinations in documents delivered to him by Mountaire and known by Williams. (13) Williams admitted he was subject to the United States Department of Transportation (hereafter DOT ) regulations as a carrier given the use of the 1999 Freightline truck. By necessary implication, Williams knew the truck was of such a size, weigh t and us e to be s ubject to regulati on. See The Fed eral Moto r Carrier Sa fety Regu lations in Ch. III o f Title 4 9 of the Code of Fed eral Re gulation s. (14) One regulation re quired that Hall be given a drug test and W illiams was aware of this re quirem ent. See 49 C.F.R. §382.301. (15) Hall was not drug tested. (16) When hired and picking up the frozen chicken produce, Hall was taking 3 illegal drugs. (17) Because Hall was high on illegal drugs, Hall was not able to deliver the frozen chicken produce. (18) Hall reached New Jersey but returned to New Castle County. He lived in the trailer for about 13 days. His illegal drug use continued over this period of time. (19) Williams learned that the deliveries had not been made and contacted the police. During the police investigation, Hall s mother advised the officer on or about Thursday, February 27, 2003 that Hall had a drug problem. (20) A warrant was issued to arrest Hall for the unauthorized use of a vehicle and Hall was arrested on or about March 5, 2003. (21) At the time of arrest, the produce had spoiled and the value of the loss was $33,373.63. (22) On April 10, 2003, Hall pled guilty to unauthorized use of a vehicle by unlawfully taking and failing to return Williams Freightliner in the Court of Common Plea s of t he State o f De laware in and for K ent C ounty. Conclusions of Law Mountaire cha rges Williams with brea ch of contract and w ith liability for Hall s acts under the doctrine of respondent superior. Considering the course of conduct between Mountaire and Williams and the DOT requirement that carriers such as Williams have drivers drug tested, Williams agreed by implication to use drivers in the delivery of 4 Mountaire s goods who were competent, reliable and drug free. Because Hall was under the influence of illegal drugs, the delivery of the frozen chicken produce could not be made before spoilage. Further, the drug use prompted Hall to return to Delaware from New Jersey. As a result, Hall pled guilty to unauthorized use of a motor vehicle. The defense argues that Hall was an independent contractor and that his actions involving drug use and the unauthorized use of the truck, are torts which cannot be Williams responsibility. This argument seeks to avoid responsibility on grounds of respondent superior. As the parties know, the Supreme Court in Fisher v. Townsend, 695 A.2d 53, 58 (Del. 1997) analyzed vicarious liability in this fashion: (1) if the principal is the master of an agent who is a serv ant [i.e., an employee], the fault of the agent if acting within the scope of employment, will be imputed to the principal by the d octrine of re sponden t superior, an d, (2) an ow ner or con tractor will not be held liable for the torts of an independent contractor which are committed in the performance of the contracted work. That court also recognized certain exceptions. For example , if the own er or contrac tor retains con trol over the in depende nt contracto r, he is responsible for the torts of that inde pendent contractor. Some o f the factors which ar e pertinent to d etermine if o ne who acts for ano ther is a servant or independent contractor include: (a) the extent of control, which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or 5 business; (c) the kind of occupation, with reference to whether, in the locality the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the w ork is part of the regular busine ss of the employer; (I) whether or not the parties believe they are creating the relation of master an servant; and (j) whether the principal is or is not in business. Fisher, 695 A.2d at 59. I find H all was William s serva nt and w as not an indep enden t contrac tor. Williams intended to pay wages to Hall with a W-2, unlike the method of payment for an independent contractor. The Freightliner was a substantial piece of equipment, and Williams controlled its use and details of the operation. In Fisher, the use of radios was a factor showing control of the work in that case. Here, the cell phone and CB radio given to Hall demonstrated Williams control and reservation of control over the pick up and delivery of the frozen chicke n produce. W illiams was a driver himself, an d Hall s work was a reg ular part of W illiams busine ss. If the prod uce had b een deliver ed, Hall w ould have been employed by Williams with other jobs. Both Williams and Hall had 6 commercial driver s licenses, and no evidence suggests that the ability to obtain the license and drive a truck is so specialized that an independent contractor status must necessarily result. Finally, the conduct of Hall and Williams is consistent with a master/servant relationship. Nevertheless, Defendant Williams argues that even if Hall was a servant, if he acted f or his ow n bene fit, then W illiams w ould no t be resp onsible for tho se action s. William s cites tw o cases in supp ort of th is argum ent, Bauld ock v. D avco F ood, In c., 622 A.2d 28 , 33-34 (D .C. Ct. Ap p. 1993) (f inding po lice officer w ho arrested person w hile working as a security gua rd for a resta urant wa s acting as an officer an d not as a se curity guard, so that the restaurant was not vicariously liable for assault and battery that occurred during arrest) and Sawyer v. Humphries, 587 A.2d 467 (Md. Ct. App. 1991) (finding that where inten tional tort committed by an emp loyee was personal or a departure from the purpose furthering the employer s business, it was not within scope of employment). In Sawyer, the Court sta ted, [w]h ere the con duct of the servant is unprovo ked, highly un usual, and q uite outrage ous, courts te nd to hold that this in itself is sufficient to indicate that the motive was a purely personal one and the conduct is outside the sco pe of e mploym ent. 58 7 A.2d at 471, citing, Prosser and Keeton On the Law of Torts. A Delaware case on this subject is Draper v. Olivere Paving & Constr. Co., 181 A.2d 565 (Del. 1962). This question of whether an employer can be liable for the 7 intentional torts of an employee becomes one of foreseeability, i.e., the master may be liable for the servant s intended harm if the act was not unexpectable in view of the duties of the servant. Id. at 569. In Draper, the Court refused to gran t summary judgment because it found a jury could possibly find it not unexpectable that the employee, a traffic director on a construction job, might use excessive force. Under the circumstances of this case, I find that Hall failed to deliver the produce. As an experienced owner and driver, Williams was aware of the risks arising from illegal drug use by drivers and was aware of DOT regulations on this subject. The trip was made during the c ourse of H all s employm ent. Furthermore, this result is supported by the dual purpose doctrine which was summarized by the Supreme Court, in the case of Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del. 1988), as follows: The dual purpose rule was first articulated in Ryan v. F arrell, 208 Cal. 200, 280 p. 94 5 (1929): Where th e servant is co mbining h is own bu siness with that of his master, or attending to both at substantially the same time, no nice inquiry w ill be made a s to which business the servant w as actually engaged in when a third person was injured; but the master will be responsible, unless it clearly appears that the servant could not have been directly or indirectly serving his master. This rule was later followed and applied in Gipso n v. Da vis Rea lty Co., 216 Cal. App .2d 190, 30 Cal. R ptr. 253 (1963), a case cited and adopted by this Court in Coates v. Murphy, Del. Supr., 270 A .2d 527, 528 (197 0). From the dual purpose rule it follows that conduct of an employee, although done in part to serve the purposes of the servant or a third person, may be within the scope of employment if the employer s business actuates the emplo yee to any a pprecia ble exte nt. Best Steele B ldg., Inc. v. Ha rdin, Tex.Civ.App . S.W.2d 122, 121 8 (1977). The m ere fact that the primary 8 motive of the servant is to benefit himself or a third person does not cause the act to be o utside the sco pe of em ployment. The Supreme Court in the case of Storm v. Karl-Mil, Inc., 460 A.2d 519, 521 (Del. 1983), found: In Children s Bureau v. Nissan, 42 Del. 209, 29 A.2d 603, 607 (1942), the Superior Court correctly summarized the dual purpose test in the following manner: An injury may occur in the course of the employment without any essential causal relation between the employment and the injury. Th e requir emen ts, in the course of his e mploym ent, and out of *** the employment must conjoin. The former relates to the tim e, place and circumstan ces of the a ccident; the latter to its origin and cause. 71 C.J. 642 et seq. The relation of the accident to the service is the essential point of inquiry. The question is whether the employer exposed the employee to risk. Service to the employer must, at least, be a concurrent cause of the injury. Where a private purpose and service to the employer coexist, the facts of the case must permit the inference that the journey would have been made even thought the private purpose had been abandoned. The test is whether it is the employment or something else that impels the journey and exposes the traveler to its risks. If the service crea tes the nece ssity for the travel, the employee is in the course of his employment, even though, at the same time, he is serving some pu rpose of h is own. O n the other h and, if the service h as not create d the nece ssity for the journ ey, if it would n ot have be en made at all except f or the private purpose, a nd wou ld have be en cance lled upon its abandon ment, the trav el and the risk are person al. To s tate the ru le an othe r wa y: When a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, 9 though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the e mployee s per sona l journey. 1 Larson, Workmen s Compensation Law § 18:12. See also, Vandiest v. Santiago, 2004 Del. Super. Ct. LEXIS 416, at *15, holding: Under th e dual purp ose doctrin e, even tho ugh an em ployee is prima rily motivated for personal reasons, he may still be working within the course and scope of his employment if the employer s business actuates the employee to any apprecia ble extent. Applying th e law, I find Williams b usiness actu ated Hall. T he trip bega n in Sussex County, Delaware and benefitted Mountaire. It would have been made regardless of a private purpose. There is a sufficient relationship between the transportation of the produ ce and the loss. Furthermore, Williams asks this Court to relieve his liability to Mountaire based on the doctrine of Disch arge by Sup ervening Im practicability of P erforman ce. How ever, this defense was not established by Williams. The impracticability doctrine holds that [w]he re, after a contrac t is made , a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circ ums tanc es indica te the contrary. Restate ment (S econd ) of Co ntracts § 261 (1 981). Discharge by reason of impracticability requires the party claiming discharge to prove the following three eleme nts: 10 1. the occurrence of an event the non-occurrence of which w as a basic as sumption of the con tract; 2. continued perform ance is not c ommerc ially practicable; and 3. that the party claiming discharge did not expressly or impliedly agree to performance in spite of impracticability that would otherwise justify his non perfor mance. J & G Associates v. Ritz Camera Centers, Inc., 1989 WL 115216, at *4 (D el. Ch.). First, Williams claims that when he contracted with Mountaire to transport the frozen chicken products to New York, neither he nor Mountaire assumed that Hall, the person Williams hired to deliver the goods, would subsequently abscond with the delivery, resulting in its spoilage. However, this occurrence is not the type of intervening action th at the R estatem ent env isions as excusi ng con tractual p erform ances. The case law depended on by Williams contains intervening circumstances that were entirely outside the control of the party claiming discharge. For example, Williams relies on Western Properties v. So. Utah Aviation, 776 P.2d 656 (19 89). In that matter, the Utah Court of Appeals held that a sublessee was not responsible for payments under its lease contra ct because the funda mental pu rpose of th e contract b ecame im practicable when the City (a third unrelated party) rejected its construction plans on the leased proper ty. Id. at 658. In that matter, the sublessee was excused because the impracticability of the contract was not a result of his actions or an anticipated occurrence at the fo rmation of the c ontract. Williams also refers to an ea rlier New Jersey Suprem e Court holding that there 11 should be no liability where a party was prevented from performing its contractual obligati ons thro ugh no fault of its own . See Directions, Inc. v. New Prince Concrete Co., 491 A .2d 134 7, 1349 (N.J. Su per. Ct. A pp. Div . 1985) . In true c ases of imprac ticability, a party to a contract is unable to perform its obligations because of an intervening and unforeseen circumstance, which it did not cause or expect at the commencement of the contract. This is not the present case. Here, Williams cannot claim that an intervening circumstance out of his control prevented performance of this contract. Williams chose to entrust Mountaire s goods with Defend ant Hall. The emp loyment of drivers to carry loads to their delivery destinations was entirely within W illiams control. The fact that the succe ssful delivery of the shipment failed due to the actions of an employee does not excuse Williams respon sibility for th e good s as a ca rrier. The second part of the test requires Williams to show that performance of the contract is no longer commercially practicable. It is true that Williams was no longer capable of delivering the goods to their intended d estination, given that the goods w ere completely destroyed by Hall s treatment of the goods. However, the destruction of the goods w as a result of a ction s taken by Will iams , ther efor e imp racti cabi lity do es no t app ly. Finally, to assert a defense of impracticability, the party requesting discharge must show that he did not explicitly or implicitly agree to deliver the goods despite the occurrence of the unforeseen circumstance. Williams is unable to show that he did not 12 have an o utstanding r esponsibility to de liver the goo ds in spite of Hall s action s. This is becau se Willia ms, as a carrier, o wes a c ertain du ty to its con tractor. In this regard , the duty of care owed b y a carrier depe nds on w hether he is consid ered a p rivate or comm on carr ier. See Tri-State Trucking Co., Inc. v. H & H Poultr y Co., In c., 1981 Del. Super. Ct. LEXIS 750. Nothing short of an act of God or public en emy w ill ex cuse a com mon carrier w here goods ar e des troyed within its cu stod y. On the other hand, a private carrier is one who, without being engaged in such business as a public em ployment, undertakes to deliver g oods in a particular case, for hire or reward. Pennewill v. Cullen, 5 Del. (5 Harr.) 238, 242 (Del. 1849). The d uty of care owed by a private carrier is to furnish a tight good vessel, suitable to that navigation, and to provide a competent master. This results from his obligation to use ordinary care and diligence to p revent acc ident; such c are as a pru dent man would o rdinarily take of h is own goods. Id. Therefore, any losses incurred by a private carrier should be reviewed by an ordinary negligence standard, i.e., was due care exercised in the transportation of goods? I find Williams had the status of contract carrier. He worked only for three suppliers. Further, Williams did not indiscriminately offer his service to the public at large. See Tri-State Trucking Co. Also, I find Williams agreed to use due care in the selection of Hall as a driver for Mountaire. In the exercise of reasonable care, Williams would have insisted on a drug 13 test before entrusting Mountaire s goods to Hall. In the exercise of reasonable care, Williams would have required Hall to present proof of negative past drug tests as he represented himself as a commercial driver. Without these steps, a reasonably prudent owner would not entrust the shipment of interstate goods to a driver of a 1999 Freightline. When testifying, Hall used the expression that Williams apparently did not know he was using drugs. This was spoken in a disbelieving tone of voice which suggested Williams would have known if the subject was investigated. Moreover, in the exercise of reason able ca re, a mo re thoro ugh ba ckgrou nd che ck of H all wou ld have been m ade. A cursory check was made by Williams insurer, and it was reviewed by him. It revealed problems with ch ildren, and the names an d occupations of H all s parents were know n (a minister and a deacon). These problems can affect a driver s attention and use of illegal drugs. A reasonably prudent owner would have made further inquiry. When asked on February 21, 2003, his mother acknowledged Hall s drug problem. Conside ring the fore going, I con clude W illiams breach ed his con tract with Moun taire by failing to e mploy a reaso nably comp etent driver w ho was n ot actively engaged in drug use. I also conclude that Williams is responsible for Hall s conduct under the doctrine of re spondent superior. Th erefore, judgment is entered for Moun taire against Williams in the amount of $33,375.63 together with pre and post judgment interest from February 22, 200 3. Mountaire is aw arded costs. Although Mountaire requests legal fees, there is no statutory or contractual basis to award them. 14 IT IS SO ORDERED. Richard F. Stokes, Judge Original to Prothonotary cc: David R. H ackett, Esquire Roy S. Shiels, Esquire 15
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