PJC General Negligence 2022

A GENCY AND S PECIAL R ELATIONSHIPS

PJC 10.8

PJC 10.8

Independent Contractor

A person is not acting as an employee if he is acting as an “independent con tractor.” An independent contractor is a person who, in pursuit of an indepen dent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other per son with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished. COMMENT When to use—given after definition of “employee.” PJC 10.8 should be used if there is evidence that an alleged employee was actually an independent contractor. The contention that a person is an independent contractor is an inferential rebuttal to the existence of an employee relationship. PJC 10.8 should be given immediately after the definition of “employee” in PJC 10.1. Source of definition. For the definition of “independent contractor,” see Indus trial Indemnity Exchange v. Southard , 160 S.W.2d 905, 907 (Tex. 1942); see also Texas A&M University v. Bishop , 156 S.W.3d 580, 584–85 (Tex. 2005). For cases approving this definition in a charge submission, see Centurion Planning Corp. v. Seabrook Venture II , 176 S.W.3d 498, 511–12 (Tex. App.—Houston [1st Dist.] 2004, no pet.), and Weidner v. Sanchez , 14 S.W.3d 353, 376 (Tex. App.—Houston [14th Dist.] 2000, no pet.). See also PJC 10.1 Comment. Control. “[I]n the employment context, it is the right of control that commonly justifies imposing liability on the employer for the actions of the employee. Indeed, it is the absence of that right of control that commonly distinguishes between an employee and an independent contractor and negates vicarious liability for the actions of the latter.” St. Joseph Hospital v. Wolff , 94 S.W.3d 513, 542 (Tex. 2002). The gen eral rule for independent contractors thus rests on certain tests: (1) the independent nature of his business; (2) his obligation to furnish necessary tools, supplies, and mate rial to perform the job; (3) his right to control the progress of the work, except as to final results; (4) the time for which he is employed; and (5) the method of payment, whether by time or by the job. See Industrial Indemnity Exchange , 160 S.W.2d at 907; see also Texas A&M University , 156 S.W.3d at 584–85 (recognizing same tests as “factors” to consider in determining status). These tests are not necessarily concurrent with each other; nor is any one in itself controlling. Industrial Indemnity Exchange , 160 S.W.2d at 907. It is therefore unclear whether these “factors” or “tests” are neces sarily subsumed within the above instruction or whether one or more of them might appropriately be the subject of further instruction to the jury.

135