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Generally, an employer may be held liable for the negligence of its employees when they are acting within the scope of their employment. This theory of liability is known as respondeat superior. Respondeat superior applies when the negligent person is an employee, but it generally does not apply to independent contractors. The question of whether a person is an independent contractor or an employee turns on whether the purported employer exercises control over either the means or the results. The court may consider a number of factors, including whether the worker worked at his own convenience, could engage in other employment, received fringe benefits, was on the payroll, and was on a fixed schedule. New York car accident attorneys know that the question of whether a person is an employee or an independent contractor is not always clear, as seen in a recent case.

The plaintiff alleged she was injured when she was hit by a car while crossing an intersection. She identified the vehicle by the license plate number. She alleged that the owner and operator of that vehicle was employed by a car service. In his answer, the defendant driver did not deny being the owner of the vehicle or operating and controlling it.

The car service was a livery, rather than a taxi service. It denied having control over the vehicles affiliated with its base or their drivers. The car service denied being the employer of the defendant driver and argued it should be granted summary judgment because it was not vicariously liable under the theory of respondeat superior.

The defendant driver testified that he had entered into a written agreement with the car service and had signed something that allowed the car service to check his driving record. He testified that he had received a single-day training when he joined the car service. The training covered making a pick up and talking to customers but did not cover operating a vehicle.

The car service inspected the driver’s car twice a week. It would not dispatch a vehicle that did not pass the inspection. The car service also requires the drivers to have a certain level of insurance, and the driver testified that he provided his insurance and inspection information to the car service annually. He further testified that drivers had to turn in their plates to the car service if they went on vacation for more than two weeks. The car service provided stickers to the drivers to indicate they drove for the service. The driver also testified that he had a company phone that showed the job, including the client’s name, number, and location.

The driver testified that he was not on a fixed schedule. He determined his hours, days, breaks, and vacations. The car service did not require him to do a certain number of jobs per day, and he would just turn off his radio when he did not want any more passengers.

The car service did not withhold taxes or provide a W-2. The driver did not have health insurance, a pension plan, or fringe benefits from the car service. The driver paid his own vehicle expenses, including insurance, registration, gas, and maintenance. He paid for his own TLC license.

He could stop working with the car service and affiliate with another at any time, but he could not work with another while working for the defendant car service.

The defendant driver did not dispute the car service’s assertion that it was not his employer and not vicariously liable. The plaintiff argued there were questions of fact as to whether the driver was an employee of the car service.

The court considered case law, finding that both the First and Second Departments had found no employment relationship in similar cases. The court found the defendant driver’s testimony established he was acting as an independent contractor. He chose when he worked. He did not receive any fringe benefits. He was paid based on a percentage of the fare and received no W-2. The court found the requirement that he turn in his plates during vacations and the prohibition against working with another dispatch company were not enough to raise a triable issue of fact. The court granted the motion for summary judgment as to the car service.

Even if a driver is an independent contractor, and there is no employer to pursue, an accident victim may still recover from the responsible driver. If you have been injured in an automobile accident, you need an experienced New York car accident attorney to fight for you. Call the Law Offices of Marc S. Albert at 1.855.252.3788 to discuss your case.

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