This summary also appears under Negligence & Intentional Tort
Issues: Direct and vicarious liability; Whether a material question of fact remained as to whether one of the tort-feasors (R) qualified as an employee of defendant-Atlantis Lounge, Inc. or an independent contractor; Bailey v. Schaaf; Campbell v. Kovich; Reeves v. Kmart Corp.; Candelaria v. BC Gen. Contractors, Inc.; Intentional torts premised on a theory of vicarious liability; Hamed v. Wayne Cnty,; Whether there was a nondelegable duty relevant to this case; Van Dam v. Doty-Salisbury Co.; Thon v. Saginaw Paint Mfg. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Cole v. Bada Bing Club
e-Journal Number: 58207
Judge(s): Per Curiam – Beckering, Hoekstra, and Gleicher
Holding that the trial court correctly concluded that the defendant-Club's owner, defendant-Atlantis Lounge, may not be held directly or vicariously liable for the torts at issue, the court affirmed the trial court's grant of summary disposition to defendants. Plaintiff suffered a beating in the basement of the Club at the hands of four men, including R (the Club's manager). The men were all convicted of criminal charges for their involvement. This case involved plaintiff's efforts to obtain tort based damages from the Atlantis Lounge, based on principles of vicarious liability for R's conduct and negligence in hiring, retaining, and supervising R. The court concluded that the trial court appropriately determined that reasonable minds could not conclude that Atlantis Lounge "exercised the necessary control or supervision over" R's specific work activities so as to render him an employee of Atlantis Lounge. In particular, both M (Atlantis Lounge's sole shareholder) and R testified that R operated the Club pursuant to a verbal agreement giving R "control over, and responsibility for, the day-to-day operations of the Club, and plaintiff presented no evidence to contradict this evidence." On the contrary, R "undisputedly hired and fired the Club's employees. He paid the Club's expenses, including employee salaries. He maintained the Club's financial records and made decisions about the business, including the decision to employ plaintiff to complete construction in the Club's basement." R paid $12,000 each month in rent to Atlantis Lounge for the opportunity to run the Club, drawing his own compensation from the profits remaining after paying his employees, business expenses, and the set rent to Atlantis Lounge. In essence, he "paid for the opportunity to operate the Club as an independent contractor without interference" from Atlantis Lounge. Viewing the evidence in a light most favorable to plaintiff, reasonable minds could not conclude that a question of fact remained as to R's status as an independent contractor. Because he was an independent contractor and "Michigan recognizes no cause of action for the negligent hiring or retention of an independent contractor," the trial court did not err in granting summary disposition as to plaintiff's allegations involving direct liability. Further, the case law he cited to support his vicarious liability claim only indicated that an employer may be held vicariously liable for an employee's intentional conduct in certain circumstances and thus, did not apply given that R was an independent contractor. He also failed to identify any nondelegable duty relevant to this case.
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