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Fay Robertson v. Ziplocal

September 26, 2012



Plaintiff Fay Robertson brings this action against Defendants Phone Directories Company, Inc. ("ZipLocal"), Phoenix Distribution ("Phoenix"), and Mike Bowden seeking damages for injuries sustained when she tripped and fell over a phone directory left in her driveway. Pending before the Court is ZipLocal's motion for summary judgment. For the reasons stated below, the motion is granted.


On the evening of September 1, 2007, Robertson arrived home from a wedding and was asked to wait in the car as her daughter and son-in-law attempted to trigger the driveway lights. Instead of waiting, Robertson began to walk around the vehicle. When she was between the front of the car and the rear of another vehicle parked in the driveway, she tripped and fell over a telephone directory. The directory was published by ZipLocal and had been delivered the day before by a person working for Phoenix, the company that ZipLocal hired to distribute its phone books in Montana. Robertson suffered a hip fracture in the fall and has experienced complications since.

ZipLocal hires third-party individuals and companies to distribute its directories. It uses approximately 10 to 15 distributors nationally, and distribution jobs are awarded on a single-year basis. Kimball Broderick, the Distribution Manager at ZipLocal in 2007, attested that she would evaluate bids from approximately one to three companies and choose a distributor based on the bidder's price, knowledge of the delivery area, and past performance. A vendor was deemed to be in good standing if it had previously followed through on past jobs and completed them in a timely manner, elicited no or minimal complaints, invoiced ZipLocal correctly and on time, and showed up to meet the delivery truck on time. However, these standards were not in written form in 2007. Nor did ZipLocal have standards or regulations in place regarding whether a distributor could hire subcontractors to perform the delivery. ZipLocal has since adopted written standards.

There is no contract in the record between ZipLocal and Phoenix from 2007. But the parties agree that ZipLocal hired Phoenix to distribute its directories in several areas including Montana, Oregon, and Utah. When ZipLocal hired Phoenix as the distributor for the Missoula, Montana area, it issued an order form that stated the number of directories to be delivered and the areas where they should be delivered.

Ziplocal did not provide training, dictate the hours worked, or specify how the work was to take place. Phoenix was paid based on the number of directories it delivered, and it submitted frequent progress reports to ZipLocal by email. The reports indicated how many books had been received and delivered, what percentage of each job had been completed, and the name of the manager responsible for each job. If ZipLocal received a complaint about a delivery, it forwarded the complaint to Phoenix. Phoenix typically replied that it would investigate the complaint, and, in some cases, it reported back on how it responded.

Robertson argues that ZipLocal is subject to liability for her injuries because Phoenix was its agent or because ZipLocal negligently hired, trained, or supervised Phoenix. ZipLocal counters that it is entitled to judgment as a matter of law on both theories because no material facts are in dispute, Phoenix was an independent contractor, there is no evidence of "control," and the record does not support a theory of negligent hiring, training, or supervision.


A party is entitled to summary judgment if it can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). On a motion for summary judgment, this Court must determine whether a fair-minded jury could return a verdict for the non-moving party. Id. at 252. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment; factual disputes which are irrelevant or unnecessary to the outcome are not considered. Id. at 248.

A. Phoenix was not an agent, but an independent contractor.

The record does not support Robertson's argument that Phoenix acted as ZipLocal's agent. "An individual is an agent of another when that other has the right to control the details, methods, or means of accomplishing the individual's work." Butler v. Domin, 15 P.3d 1189, 1194 (Mont. 2000) (citations omitted). Four factors help determine whether the right of control is sufficient to give rise to an agency relationship: "(1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire." Id. (citation omitted). In an agency relationship, the principal is liable for the negligent acts of an agent that is acting within the scope of its agency. Mont. Code Ann. § 28-10-602(1).

In contrast, "[e]mployers are generally not liable for the torts of their independent contractors." Beckman v. Butte-Silver Bow Co., 1 P.3d 348, 350 (Mont. 2000). An independent contractor "renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually not paid by the job." Stand. Chem. Mfg. Co. v. Empl. Sec. Div. of Mont. State Dept. of Lab. and Indus., 605 P.2d 610, 613 (Mont. 1980) (internal quotation marks and citation omitted); see also In re Coupon Clearing Serv., Inc., 113 F.3d 1091, 1099 (9th Cir. 1997) ("If control may be exercised only as to the result of the work and not the means by which it is accomplished . . . an independent contractor relationship exists.") (construing California law); Ochoa v. J.B. Martin & Sons Farms, Inc. ("A principal instructs an independent contractor on "what to do, but not how to do it.") (construing Arizona law).

There are no facts suggesting that ZipLocal controlled or sought to control the "details, methods, or means" of the directory distribution. ZipLocal prescribed the results of the work (how many directories should be delivered and where they should be delivered), but it did not specify the means by which Phoenix was to accomplish these goals. It tracked information pertinent to the results of the work such as the number of directories delivered, the locations where they were delivered, and the percentage of each job that had been completed. But it did not track, and Phoenix was not required to report on, how Phoenix achieved those results.

ZipLocal also forwarded or sent summaries of customer complaints to Phoenix rather than responding to the complaints itself, and it did not dictate how Phoenix should respond. Docs. 37-17, 37-18, 37-19. Phoenix typically replied that it would take care of the complaint or occasionally explained how it had addressed or investigated the complaint. Id. When ZipLocal made recommendations, Phoenix was not required to follow them. For example, after receiving a number of complaints within the span of a few days about deliveries in a specific area in Salem, Oregon, ZipLocal emailed Phoenix: "We need to stop all night deliveries. This is getting out of hand." Doc. 37-17 at 16. Apparently without consequence, Phoenix responded instead that it had fired the "people responsible for these problems." Id. In two other instances, ZipLocal instructed Phoenix not to deliver books to people or locations without permission. Doc. 37-18 at 2--3. However, this instruction relates to the results of the work-how many books should be delivered and to whom-rather ...

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