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2019

Sparks v. M&D Trucking

301 Neb. 977
Supreme Court of Nebraska.
Stephanie A. SPARKS, Personal Representative of the Estate of Gary W. Isom, Deceased, et al., Appellants and Cross-Appellees,
v.
M&D TRUCKING, L.L.C., Appellee and Cross-Appellant.
No. S-17-1209.
|
Filed December 28, 2018.

Syllabus by the Court
**1 *977 1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

4. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

5. Employer and Employee: Independent Contractor: Master and Servant. Ordinarily, a party’s status as an employee or an independent contractor is a question of fact. However, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.

6. Contracts: Parties: Words and Phrases. By stating “where the inference is clear,” the Nebraska Supreme Court means that there can be no dispute as to pertinent facts pertaining to the contract and the relationship of the parties involved and only one reasonable inference can be drawn therefrom.

*978 7. Employer and Employee: Independent Contractor. A determination of a party’s status as an employee or an independent contractor is determined from all the facts in the case and depends on the facts underlying the relationship of the parties irrespective of the words or terminology used by the parties.

8. Employer and Employee: Independent Contractor. No single test exists for determining whether one performs services for another as an employee or as an independent contractor, and the following 10 factors must be considered: (1) the extent of control which, by the agreement, the potential employer may exercise over the details of the work; (2) whether the one potentially employed is engaged in a distinct occupation or business; (3) the type of occupation, with reference to whether, in the locality, the work is usually done under the direction of the potential employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the potential employer or the one potentially employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one potentially employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the potential employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the potential employer is or is not in business.

**2 9. Employer and Employee: Independent Contractor. The extent of control is the chief factor distinguishing an employment relationship from that of an independent contractor.

10. Employer and Employee: Independent Contractor. In examining the extent of a potential employer’s control over the worker, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed.

11. Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the means or methods used.

12. Independent Contractor: Contracts. Even the party contracting with an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms.

13. Negligence: Liability: Contractors and Subcontractors. Generally, one who employs an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or its servants.

14. Negligence: Liability: Contractors and Subcontractors. A party contracting with an independent contractor can be liable for physical harm caused to another if (1) the contracting *979 party retains control over the contractor’s work, (2) the contracting party is in possession and control of premises, (3) a statute or rule imposes a specific duty on the contracting party, or (4) the contractor’s work involves special risks or dangers. Courts often refer to the latter three exceptions as involving nondelegable duties.

15. Negligence: Liability: Contractors and Subcontractors: Words and Phrases. A nondelegable duty means that a contracting party to an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.

16. Contractors and Subcontractors: Liability. To fall within the control exception to the general rule of nonliability, the contracting party’s involvement in overseeing the work must be substantial.

17. Contractors and Subcontractors: Liability. To fall within the control exception to the general rule of nonliability, control must directly relate to the work that caused the injury.

18. Contractors and Subcontractors: Liability. The key element of control must exist with respect to the very thing from which the injury arose.

19. Contractors and Subcontractors: Liability. To impose liability, the contracting party must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger that ultimately caused the injury, and (3) the opportunity to prevent the injury.

20. Negligence: Contractors and Subcontractors. Having the right to control and supervise the work implies having the ability to oversee and direct the manner in which the work which caused the injury is carried out.

21. Federal Acts: Motor Carriers: Judgments: Proof. The federal Motor Carrier Safety Improvement Act of 1999 and the Federal Motor Carrier Safety Regulations generally require that a commercial motor carrier operate only if registered and that such registration requires proof of financial responsibility in order to ensure collectability of a judgment against the motor carrier.

**3 22. Federal Acts: Motor Carriers: Intent. The federal Motor Carrier Safety Improvement Act of 1999 and the Federal Motor Carrier Safety Regulations protect the public and provide financial responsibility for motor carrier accidents by creating a legal right and a duty to control vehicles operated for the regulated motor carrier’s benefit.

23. Motor Carriers: Brokers: Liability. When distinguishing between a motor carrier and a broker, the determinative question is whether the disputed party accepted legal responsibility to transport the shipment.

24. Motor Carriers: Brokers. A transportation company may have authority to act as a shipper, broker, or carrier, and a court must focus on the *980 specific transaction at issue—not on whether the transportation company acts as a motor carrier in other transactions.

25. Negligence: Liability: Employer and Employee: Independent Contractor. An employer is subject to liability for physical harm to third persons caused by the employer’s failure to exercise reasonable care in selecting an employee, even if such employee is an independent contractor.

26. Federal Acts: Motor Carriers: Records. The federal Motor Carrier Safety Improvement Act of 1999 and the Federal Motor Carrier Safety Regulations require motor carriers to obtain and maintain records on each of the drivers they employ, such as driving and medical records.

Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Affirmed.
Attorneys and Law Firms
Patrick R. Turner, Omaha, Steven G. Emerson, Thomas H. Davis, and Bradley J. Yeretsky, of Stinson, Leonard & Street, L.L.P., for appellants.
Thomas A. Grennan and Adam J. Wachal, of Gross & Welch, P.C., L.L.O., Omaha, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg JJ.
Opinion

Funke, J.

Stephanie A. Sparks, as personal representative of the estate of Gary W. Isom and as temporary guardian of Justin W. Isom; Melanie Crosby, as personal representative of the estate of Tiffany R. Isom; and Nancy Ragains, as personal representative of the estate of Susan G. Isom (appellants), appeal the district court’s order granting the motion for summary judgment of M&D Trucking, L.L.C. (M&D). M&D cross-appeals. For the reasons set forth herein, we affirm.

I. BACKGROUND

1. FACTS
Around 5 a.m. on August 28, 2014, Kenneth Bryan Johnson was driving a truck and trailer and failed to stop at a stop sign, *981 striking a vehicle carrying members of the Isom family: Gary, Susan, their son Justin, and Gary’s adult daughter Tiffany. Gary, Susan, and Tiffany died as a result of the collision, and Justin was seriously injured. Johnson had been driving longer than permitted under applicable law, and Johnson had consumed alcohol less than 4 hours before going on service. Johnson had a criminal history relating to the operation of motor vehicles, including driving on a suspended license, driving without a license, and driving under the influence of alcohol.

Johnson contracted with Turbo Turtle Logistics LLC (Turbo Turtle) and was driving a truck and trailer with Turbo Turtle signage on the date of the accident. According to deposition testimony from Turbo Turtle president Robert Brackett, Turbo Turtle is a logistics and brokerage company; logistics meaning the physical transportation of products, and brokerage meaning the arranging of transportation of freight by others. At the time of the accident, Turbo Turtle was a motor carrier. At all relevant times, Brackett testified that he was the only employee of Turbo Turtle and that the drivers were independent contractors. Brackett explained Johnson had been one of Turbo Turtle’s independent contractor drivers approximately 30 days prior to the accident and that he leased a truck and trailer from Turbo Turtle during that time. Johnson was not allowed to use Turbo Turtle’s equipment for any work that was not dispatched through Turbo Turtle or M&D, the company which was hired to transport the load Johnson carried during the accident.

**4 Turbo Turtle had had a business relationship with M&D since Turbo Turtle’s creation in 2012. Brackett testified that Turbo Turtle got involved with M&D because Turbo Turtle was trying to add trucks and did not have time to look for work. Brackett opined that, likely, M&D worked with Turbo Turtle to add to its capacity in using Turbo Turtle’s drivers, trucks, and trailers. From its inception until the end of its relationship with M&D, Brackett explained that about 98 percent of Turbo Turtle’s work came from M&D.

*982 M&D operates as a brokerage and trucking company. M&D did not have an ownership interest in Turbo Turtle. At the time of the accident, Michael Plambeck was the manager and Dan Rudnick assisted. According to Plambeck, through its trucking division, M&D employed four to five drivers who drove trucks and trailers owned by M&D. Through its brokerage division, M&D got orders from customers and then sent the load information out to M&D drivers or other carriers. According to Rudnick, M&D’s customers did not know which loads would be assigned to M&D drivers and which would be assigned to other carriers. The customers would be billed the same amount regardless of which type of driver was used. While not separate companies, M&D had separate licensing for its brokerage and trucking services and separate insurance plans.

M&D and Turbo Turtle signed a contract detailing the relationship between the companies titled “Contract for Dispatch Services at Reduced Rate With Mutual Non-Competition Upon Early Termination by Either Party.” The contract provided that M&D would be the exclusive dispatch servicer for Turbo Turtle with an exception for summer and fall harvesttime in South Dakota. As to Turbo Turtle’s drivers, the contract stated, “[Turbo Turtle] will assure that at least 42 weeks of the yearly hauling in total for all of the [independent contractors] under contract with [Turbo Turtle] results from M&D dispatch services”; “[Turbo Turtle] will maintain at least one [independent contractor] under dispatch by M&D at all times”; and “this contract does not require the dedication by [Turbo Turtle] of a particular [independent contractor] to dispatch by M&D.” It additionally applied a 2-year, noncompetition agreement should the parties prematurely break the contract. By operation of this contract, Brackett claimed M&D was leasing his four Turbo Turtle trucks. Plambeck, in turn, asserted that any drivers arranged through Turbo Turtle were Turbo Turtle employees or contractors and, as such, M&D never conducted background checks, criminal history background checks, review of a driver’s driving record or traffic violations, or *983 review of the performance of Turbo Turtle’s drivers. Instead, Plambeck testified, M&D requested and received from Turbo Turtle various legal forms necessary for work between a broker and carrier, including a “DOT motor carrier number” saying Turbo Turtle is legally allowed to haul freight, insurance verification, and W-9 forms for tax purposes. Brackett alleged the contract between M&D and Turbo Turtle was in effect at the time of the accident. Plambeck claimed that M&D terminated the contract on August 28, 2014, once they became aware that Turbo Turtle hauled a load for a different company, while Brackett opined that the contract was terminated in connection with the accident.

Brackett, Plambeck, and Rudnick explained the general procedure between M&D and Turbo Turtle for assigning and transporting hired loads. Plambeck described that a customer would communicate the details of a load to M&D; M&D would document the information on a “load sheet” with the load number, pickup location, destination, telephone numbers, and load quantity; M&D would communicate to Turbo Turtle or a specific driver the load information; and the driver would receive a paper at the pickup and destination and that paper would be sent to M&D for billing purposes. Brackett explained M&D would communicate the load information to Turbo Turtle by sending the individual drivers text messages and Turbo Turtle a copy of those messages. According to Brackett, Turbo Turtle would have no knowledge of who the actual customers were. For payment on loads carried by Turbo Turtle drivers, M&D would charge the customer the same amount as it would have if it used its own driver, M&D would keep a percentage of the total and pay the rest to Turbo Turtle, and Turbo Turtle would keep a percentage of the amount provided by M&D and pay the rest to the driver.

**5 Specifically, on the facts surrounding the accident at issue, M&D had a telephone conversation with Northern Ag Service, Inc., now known as NORAG LLC (Northern Ag), about picking up fracking sand from Genoa, Nebraska, to transport to *984 Blackwell, Oklahoma. Northern Ag is a freight broker, meaning vendors call Northern Ag about moving various loads and Northern Ag then matches the vendor with a carrier or, sometimes, with another broker who contacts another carrier. M&D did not tell Northern Ag which of the ordered loads would be handled by M&D and which would be handled by outside drivers.

Plambeck testified that Northern Ag was fully aware that M&D was a brokerage and trucking company and that it used its own company drivers as well as drivers from other companies to haul loads for Northern Ag. However, there was no written contract in place detailing the relationship between M&D and Northern Ag, and a manager for Northern Ag testified during a deposition that M&D never informed Northern Ag that it was working with outside drivers. He explained that he believed Northern Ag thought it was dealing only with M&D, not knowing Turbo Turtle was handling some of its loads, and that Northern Ag hired M&D to be the carrier. In various records of pickup and destination locations created by Northern Ag for its use, Northern Ag repeatedly listed M&D as the carrier. In the origin ticket/origin bill of lading created by Northern Ag for the load carried during the accident, M&D was listed as the carrier on the pickup.

On August 27 and 28, 2014, M&D, Turbo Turtle, and Johnson had various cell phone communications. Plambeck testified that around 11 p.m., someone from M&D text messaged either Turbo Turtle or Johnson about carrying one of the Northern Ag loads. Rudnick explained that he had contact with either Turbo Turtle or Johnson that night, because a load number did not work and Rudnick had to provide a new number. Plambeck testified Johnson was not required to call M&D once he picked up the load. From information obtained from Johnson’s cell phone, the following communications occurred:
• At 9:01 a.m. on August 27, 2014, M&D text messaged Johnson and canceled a load that he was carrying for M&D due to rain.
*985 • Approximately 30 minutes later, M&D text messaged Johnson and dispatched him and his truck to transport a load of sand from Genoa, Nebraska, to Waterford City, North Dakota.
• At 10:47 a.m., Johnson made a short telephone call to M&D.
• At 10:53 a.m., Johnson text messaged Turbo Turtle and informed it that M&D had dispatched him on a load from Genoa to Waterford City.
• At 11:43 p.m., Johnson received a text message from Turbo Turtle stating, “Genoa, NE Sand to Blackwell, OK.”
• At 12:09 a.m. on August 28, 2014, Johnson received a telephone call from M&D lasting approximately 1 minute 41 seconds.
• At 12:41 a.m., Johnson received a telephone call from M&D lasting approximately 8 minutes 41 seconds.
• From 12:54 a.m. to 12:58 a.m., Johnson and Turbo Turtle exchanged six text messages, including discussions about truckstops available en route to Blackwell.

The accident between the Isom family and Johnson occurred around 5 a.m. on August 28, 2014. A police report from the accident listed Turbo Turtle as the motor carrier.

2. APPELLANTS’ CLAIMS
Appellants brought the instant action against Turbo Turtle, Johnson, and M&D. Pursuant to a stipulation and joint motion, the court dismissed the claims against Turbo Turtle and Johnson. On the claims against M&D, the stipulation and motion to dismiss provided: “This Dismissal does not involve any other defendant or potential tortfeasor. The Plaintiffs reserve all claims against M&D … and the claims against it remain pending and are not dismissed.” The order dismissing the claims against Turbo Turtle and Johnson confirmed: “This Dismissal does not extend to M&D …. The Plaintiffs’ claims against M&D [remain] pending ….”

**6 As to M&D, appellants alleged that (1) Johnson was an agent of M&D, and M&D was liable for his negligence through the doctrine of respondeat superior; (2) M&D was negligent in hiring, training, or supervising Johnson given Johnson’s unfitness *986 to operate motor vehicles on public roads and a criminal history regarding the operation of motor vehicles; and (3) M&D was negligent per se in that M&D was the operator and/or statutory lessee of the truck and trailer driven by Johnson under the federal Motor Carrier Safety Improvement Act of 1999 (FMCSA) and Federal Motor Carrier Safety Regulations (FMCSR) and, thus, liable for Johnson’s and its own negligence.

3. SUMMARY JUDGMENT
M&D filed a motion for summary judgment claiming there was no genuine issue of material fact and that M&D was entitled to summary judgment as a matter of law. In support of the motion, M&D asserted Johnson was not an employee of M&D, Johnson was an independent contractor of Turbo Turtle who was in turn an independent contractor of M&D, and M&D did not have sufficient control over Johnson to be vicariously liable.

Following a hearing on the motion, the district court granted M&D summary judgment as to all three claims. On the claim of respondeat superior, the court first determined appellants’ claim is not barred by the prior settlement with Turbo Turtle and Johnson through operation of Neb. Rev. Stat. § 25-21,185.11(1) (Reissue 2016) (“[a] release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall discharge that person from all liability to the claimant but shall not discharge any other persons liable upon the same claim unless it so provides”). The court then determined that Johnson was not an employee of M&D and that M&D did not exert sufficient control over Johnson to establish appellants’ claim of respondeat superior. On the claim of negligent hiring, training, or supervising, the court determined M&D complied with its reasonable duty of care as a broker in that the record did not support a finding that M&D knew or should have known Turbo Turtle had an inadequate safety record or that Turbo Turtle hired an unsafe driver in Johnson. Finally, the court noted that negligence per se is not recognized as a separate cause of action in Nebraska for a violation of FMCSA and FMCSR.

*987 II. ASSIGNMENTS OF ERROR
Appellants assign, restated, that the district court erred in granting summary judgment, because there was a genuine issue of material fact of (1) whether M&D was Johnson’s common-law or statutory employer and (2) whether M&D negligently hired, trained, or supervised Johnson.

On cross-appeal, M&D assigns, restated, that the district court erred in finding that appellants’ decision to settle with Turbo Turtle and Johnson does not operate as a release of M&D in the event that Turbo Turtle or Johnson are deemed agents of M&D.

III. STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.1 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.2 Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.3

IV. ANALYSIS

1. EMPLOYEE VERSUS INDEPENDENT CONTRACTOR
**7 Appellants first assign the district court erred in its determination that Johnson was an independent contractor and not M&D’s employee. Appellants claim there is substantial *988 evidence that M&D controlled Johnson’s work, as well as other relevant factors to create a question of fact as to whether M&D was Johnson’s common-law employer.

On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.4 Ordinarily, a party’s status as an employee or an independent contractor is a question of fact.5 However, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.6 By stating “where the inference is clear,” this court means that there can be no dispute as to pertinent facts pertaining to the contract and the relationship of the parties involved and only one reasonable inference can be drawn therefrom.7

In this matter, the material facts are not in dispute. Rather, the parties argue about the inferences to be drawn from those facts concerning the legal relationships of the parties. We determine these inferences are clear and can be determined as a matter of law.

A determination of whether Johnson was M&D’s employee or an independent contractor is determined from all the facts in the case and depends on the facts underlying the relationship of the parties irrespective of the words or terminology used by the parties.8 No single test exists for determining whether one performs services for another as an employee or as an independent contractor, and the following 10 factors must be considered: (1) the extent of control which, by the agreement, the potential employer may exercise over the details of the work; (2) whether the one potentially employed is engaged in a distinct occupation or business; (3) the type of *989 occupation, with reference to whether, in the locality, the work is usually done under the direction of the potential employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the potential employer or the one potentially employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one potentially employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the potential employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the potential employer is or is not in business.9

(a) Extent of Control
The extent of control is the chief factor distinguishing an employment relationship from that of an independent contractor.10 In examining the extent of the potential employer’s control over the worker in this context, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed.11 An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the means or methods used.12 Even the party contracting with an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms.13

**8 Appellants contend several facts support a finding that M&D exerted sufficient control over Johnson for a determination that *990 the relationship went beyond that of an independent contractor to an employer-employee. Specifically, appellants point to the text messages and cell phone calls between M&D, Turbo Turtle, and Johnson representatives on August 27 and 28, 2014; the contract between M&D and Turbo Turtle which provided M&D would be the exclusive dispatch servicer for Turbo Turtle; and the agreement between Turbo Turtle and Johnson that Johnson could not drive the leased equipment for loads outside those for M&D and Turbo Turtle.

However, these factual allegations do not lead to a determination that M&D and Johnson’s relationship went beyond that of an independent contractor. The text messages cited by appellants show that M&D canceled a load due to rain at 9:01 a.m. on August 27, 2014; that M&D provided Johnson load information for a different load to North Dakota 30 minutes later; and that Turbo Turtle provided load information to Johnson about the Northern Ag load at 11:43 p.m. By providing only the pickup and destination locations, these messages go to the result of the work and not the means or methods used.14 Additionally, the fact that M&D text messaged Johnson the North Dakota load information directly rather than Turbo Turtle is not at odds with an independent contractor relationship. M&D and Turbo Turtle had a history of M&D’s making direct communications with Turbo Turtle’s drivers; Turbo Turtle was informed of the North Dakota load by Johnson; and M&D communicated with Turbo Turtle directly about the Northern Ag load, which Turbo Turtle then communicated to Johnson. Through the text messages, the record demonstrates only that M&D was controlling Johnson as to the end product of the work to be performed and did so pursuant to its agreement with Turbo Turtle.

The cell phone calls also do not provide sufficient support that M&D controlled Johnson’s actions as to the means and methods to be used. Appellants argue the timing of these calls *991 implies M&D was directing Johnson on the routes to take or the means in which to haul the load, because they occurred after he had the load information, but there is no evidence in the record as to the subject or content of the cell phone calls. Instead, the only information available about the content of the calls is from M&D representatives who testified that, while they do not remember the content of these specific calls, they contacted Johnson only concerning load information. Additionally, it is not a clear inference from the timing of these calls that they were instructing Johnson on the routes to take or the means to haul the load. These cell phone calls occurred relatively soon after Turbo Turtle text messaged Johnson the Northern Ag load information which could imply the conversations were merely communications expanding on the load information. The conversations could also have been concerning the status of other loads or a variety of other topics. Without further evidence on the subject of the calls, there is no clear implication that, as appellants suggest, the calls were M&D’s instructing Johnson on the means or methods in which to drive the load.

As to the contract between M&D and Turbo Turtle and the agreement between Turbo Turtle and Johnson, appellants argue these agreements lead to the conclusion that Johnson was permitted to drive only M&D’s loads, which was evidence that M&D exercised control over Johnson under an employer-employee relationship. However, the record does not lead to such conclusion. Johnson never contracted with M&D; instead, Turbo Turtle contracted with M&D and Turbo Turtle contracted with Johnson. According to the contract between M&D and Turbo Turtle, M&D was to provide exclusive dispatch services to Turbo Turtle with an exception for periods in which Turbo Turtle was carrying loads related to harvesttime. While the contract required at least one of Turbo Turtle’s drivers be available for dispatch by M&D, the contract stated that it did not “require the dedication by [Turbo Turtle] of a particular [independent contractor] to dispatch by M&D.” Johnson’s *992 agreement with Turbo Turtle, in turn, provided that Johnson could not drive Turbo Turtle’s equipment for any load other than those issued by Turbo Turtle or M&D but did not prevent Johnson from using other equipment to carry outside loads. There is also nothing in the record that the agreement prohibited Johnson from carrying loads for Turbo Turtle that were unrelated to M&D, and Turbo Turtle was permitted under the M&D contract to assign non-M&D loads during harvesttime. Therefore, appellants’ contention that Johnson could carry only M&D loads is refuted by the record.

**9 In consideration of all of the above and in review of the record, there is insufficient evidence to create a genuine issue of material fact that M&D exerted the extent of control necessary over Johnson for a determination that the relationship went beyond that of an independent contractor to an employer-employee.

(b) Other Factors
Appellants contend additional factors weigh toward a determination that Johnson and M&D had an employer-employee relationship: whether the one potentially employed is engaged in a distinct occupation or business, the length of time for which the one potentially employed is engaged, whether the work is part of the regular business of the potential employer, and whether the potential employer is or is not in business.15 To support this contention, appellants note M&D, Turbo Turtle, and Johnson were engaged in the same business of transporting goods; M&D was hired to transport the load in question by Northern Ag, which believed M&D would be the sole carrier of the loads; and M&D’s own drivers were transporting other loads in the same order for Northern Ag. Appellants claim these factors, when added to the cell phone calls and text messages between M&D and Johnson and the exclusive language of the Turbo Turtle agreements with M&D and Johnson, create an issue of fact as to whether Johnson was an employee of M&D.

*993 However, along with the analysis in the previous section, these additional factors do not determine Johnson was M&D’s employee. The fact that M&D had a trucking division as well as a brokerage division is not determinative of an employer-employee relationship. Johnson was in a distinct business from M&D in that M&D operated a brokerage division within its company utilizing outside drivers; Johnson was not exclusively bound to M&D’s shipments and could take other work from Turbo Turtle, including during harvesttime; and Johnson did not use M&D’s equipment and leased the equipment from Turbo Turtle instead. Johnson contracted with Turbo Turtle and not M&D and had driven for Turbo Turtle for only approximately 30 days prior to the accident, a relatively short amount of time. Additionally, while M&D did drive some of the Northern Ag loads utilizing its own drivers, it was also common for M&D to dispatch outside companies and drivers for the Northern Ag loads.

Considering all of the above, the record is insufficient to create a genuine issue of material fact that the relationship went beyond that of an independent contractor to an employer-employee.

2. LIABILITY AS INDEPENDENT CONTRACTOR
Appellants next argue M&D would be liable for Johnson’s negligence, even if Johnson were an independent contractor.

Generally, one who employs an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or its servants.16 Our case law has recognized four exceptions to the general rule.17 Specifically, a party contracting with an independent contractor can be liable for physical harm caused to another if (1) the contracting party retains control over the contractor’s work, (2) the contracting party is in possession and control of premises, *994 (3) a statute or rule imposes a specific duty on the contracting party, or (4) the contractor’s work involves special risks or dangers.18 We often refer to the latter three exceptions as involving nondelegable duties.19 A nondelegable duty means that a contracting party to an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.20

(a) Retention of Control
**10 While M&D did not retain sufficient control over Johnson’s work to subject M&D to liability for Johnson’s negligence as an agent or employee, appellants allege that M&D retained some control over the relevant work and that M&D is therefore liable for a failure to exercise reasonable care in the use of that control.21

To fall within this exception to the general rule of nonliability, the contracting party’s involvement in overseeing the work must be substantial.22 Furthermore, that control must directly relate to the work that caused the injury.23 In other words, the key element of control must exist with respect to the very thing from which the injury arose.24 To impose liability, the contracting party must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger that ultimately caused the injury, and (3) the opportunity to prevent the injury.25

Appellants argue M&D acted in a supervisory role when it assigned Johnson the load from Northern Ag, had actual *995 and/or constructive knowledge that Johnson was unavailable for driving under the hours-of-service requirements of FMCSA and FMCSR,26 and had the opportunity to use a different driver who was not in violation of those requirements but failed to do so. Specifically, appellants point to the communication between M&D and Johnson on August 27, 2014, where M&D text messaged to cancel a load Johnson was carrying at 9:01 a.m., text messaged to dispatch him on a load from Nebraska to North Dakota 30 minutes later, and communicated with Turbo Turtle to dispatch Johnson on the load carried during the accident at 11:43 p.m.

The record does not support appellants’ contention that M&D had sufficient supervision of Johnson’s work. Having the right to control and supervise the work in this context implies having the ability to oversee and direct the manner in which the work that caused the injury is carried out.27 As we have already concluded, M&D did not have control of the method or means in which Johnson performed his work. Furthermore, concerning the Northern Ag load specifically, the text messages indicate that Johnson was provided, at that time, with only the pickup, destination, and content details of the load. The messages did not direct Johnson on the timing of the load, the route, and what stops to make. Without more, nothing in the record indicates that Johnson was required to drive beyond the hours-of-service restriction and that M&D had control and supervision of Johnson to direct him to make such a violation.

(b) Control of Premises
Appellants argue M&D is liable as the party in possession and control of premises where physical harm is caused. *996 Appellants allege M&D had a lease agreement with Turbo Turtle and, as a result, was in control of Johnson and the truck and trailer.

Under 49 C.F.R. § 376.2(e) (2016), a “lease” is defined as “[A] contract or arrangement in which the owner grants the use of equipment, with or without [a] driver, for a specified period to an authorized carrier for use in the regulated transportation of property, in exchange for compensation.” In addition, 49 C.F.R. §§ 376.12 and 376.22 (2017) require that a lease contain the following provisions: provide the lessee exclusive possession, control, and use of the equipment for the duration of the lease and the lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease; clearly specify the legal obligation of the lessee to maintain insurance coverage for the protection of the public; and provide that control and responsibility for the operation of the equipment shall be that of the lessee from the time possession is taken until possession is returned. Further, 49 C.F.R. §§ 376.11 and 376.22 (2017) provide specific requirements for the operation of a lease, including that receipts are to be provided from the lessee to the lessor when possession is taken, the equipment must be identified as being operated by the lessee, and the equipment must carry a copy of the lease.

**11 This contract was not a lease agreement whereby M&D was leasing Turbo Turtle’s drivers, trucks, and trailers when it communicated a job. Here, Turbo Turtle and Johnson maintained control over the use of the truck and trailer. Turbo Turtle was responsible for the equipment’s upkeep, insurance, and signage, as well as the hiring of the drivers, and Johnson and Turbo Turtle were free to coordinate the means and manner in which they accomplished the loads M&D provided to them. Moreover, there was no evidence in the record that either Turbo Turtle or Johnson received receipts when M&D allegedly took possession of the equipment, that the equipment displayed any identifying information that it was *997 being operated by M&D, or that Johnson carried a copy of the contract.

Appellants cite to Plambeck’s deposition for the proposition that the contract was a lease. During that deposition, Plambeck made two comments regarding a lease agreement and indicated that prior to the contract, M&D had two other agreements with Turbo Turtle. The first contract he described as a “lease agreement that M&D … used as a standard lease agreement for any companies that [M&D] brokered loads to.” The second contract he described as a “trailer lease” which allowed Turbo Turtle to pull one of M&D’s trailers.

The record before us is void of the first contract of which Plambeck testified. As a result, we cannot determine the terms or conditions of that agreement and whether it would qualify as a lease under FMCSA and FMCSR. Upon a question as to whether the trailer lease was still in effect in 2014, Plambeck stated that “I would call [the contract] a lease agreement too, so which one do you mean?” Plambeck then testified that Turbo Turtle’s right to lease a trailer from M&D continued on an as-needed basis. The contract itself authorized Turbo Turtle to lease one of M&D’s trailers. However, later in his deposition, Plambeck testified that none of the equipment involved in the accident was being leased from M&D. Noting the failure of the contract to comply with FMCSA and FMCSR requirements for a lease, Plambeck’s statement, without more, does not imply that M&D treated the contract as a lease agreement for Turbo Turtle’s drivers and equipment, nor does it make the contract such a lease agreement.

(c) Statute or Rule

(i) Statutory Employer-Employee Under FMCSA and FMCSR
Appellants argue FMCSA and FMCSR impose liability on M&D, because Johnson was a driver being controlled exclusively by M&D at the time of the accident and, as such, Johnson was M&D’s statutory employee.

*998 In support of their argument, appellants cite to several definitions within the FMCSR. Specifically, 49 C.F.R. § 376.2(d)(2) which defines “owner” as someone “who, without title, has the right to exclusive use of equipment,” and 49 C.F.R. § 390.5 (2017) which defines an “employer” as someone “who owns or leases a commercial motor vehicle in connection with [a business affecting interstate commerce]” and “employee” as someone “employed by an employer” and can include “an independent contractor while in the course of operating a commercial motor vehicle.” Appellants claim M&D had the right to exclusive use of Johnson and his equipment, M&D had this right to exclusive use in connection with its interstate trucking business, and, thus, Johnson was an M&D employee under FMCSR, even if considered an independent contractor.

However, appellants are incorrect in their claim that M&D was the owner of the equipment. As analyzed above, Johnson and his equipment were not exclusively controlled by M&D at the time of the accident, Johnson’s equipment was owned by Turbo Turtle who was responsible for its maintenance and insurance, and the contract between M&D and Turbo Turtle was not a lease agreement for that equipment. Because M&D was not the owner of Johnson’s equipment and did not lease Johnson’s equipment, M&D does not meet the definition of employer and Johnson does not meet the definition of employee under FMCSA and FMCSR.

(ii) Motor Carrier Under FMCSA and FMCSR
**12 Appellants argue that FMCSA and FMCSR impose liability on M&D, because M&D was the motor carrier of the Northern Ag load. M&D, in turn, argues it was acting as a broker of the load in question and, thus, did not have liability under FMCSA and FMCSR.

FMCSA and FMCSR generally require that a commercial motor carrier operate only if registered and that such *999 registration requires proof of financial responsibility in order to ensure collectability of a judgment against the motor carrier.28 This act and these regulations protect the public and provide financial responsibility for motor carrier accidents by creating a legal right and a duty to control vehicles operated for the regulated motor carrier’s benefit.29

The FMCSR, at 49 C.F.R. § 390.5, codified as Neb. Rev. Stat. § 75-362(31) (Cum. Supp. 2014), defines “motor carrier” as
a for-hire motor carrier or a private motor carrier. The term includes a motor carrier’s agents, officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment and/ or accessories. … [T]his definition includes the terms employer and exempt motor carrier.
For purposes of federal interstate transportation law, a “broker” means:
a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.30
The FMCSR, at 49 C.F.R. § 371.2(a) (2017), distinguishes motor carriers from brokers by stating:
Motor carriers, or persons who are employees or bona fide agents of carriers, are not brokers within the meaning *1000 of this section when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.
As such, when distinguishing between a motor carrier and a broker, the determinative question is whether the disputed party accepted legal responsibility to transport the shipment.31

In arguing M&D was acting as a motor carrier on Johnson’s Northern Ag load, appellants allege M&D was a licensed motor carrier, M&D was Northern Ag’s exclusive point of contact, Northern Ag identified M&D as the motor carrier on internal documents, M&D solicited the loads from Northern Ag for its own account, M&D directly dispatched Johnson, and M&D had control over Johnson and his truck and trailer.

Whether M&D was also a licensed motor carrier is indeterminative to the question whether M&D was the motor carrier for purposes of liability for Johnson’s negligence. Instead, this question requires inquiry into M&D’s actions with regard to the particular load at issue.32 A transportation company may have authority to act as a shipper, broker, or carrier, and a court must focus on the specific transaction at issue—not on whether the transportation company acts as a motor carrier in other transactions.33 At the time of the accident, M&D had both a trucking and a brokerage division to its company with separate licenses and insurance plans, while Turbo Turtle was a licensed motor carrier with its own license and insurance. M&D gave the load in question to Turbo Turtle and its *1001 driver. There is no evidence M&D instructed Johnson beyond providing pickup and destination information. Johnson drove Turbo Turtle’s truck and trailer, and Turbo Turtle’s signage and motor carrier number were displayed on the equipment. After the accident, the police report listed Turbo Turtle as the motor carrier.

**13 The fact that M&D held itself as Northern Ag’s exclusive source of contact is insufficient to convert M&D into a motor carrier under FMCSA and FMCSR.34 There is no requirement under FMCSA and FMCSR that a broker cannot be the exclusive source of contact for a transportation customer. The record further demonstrates this is a normal practice of the trucking industry. For example, Northern Ag was a freight brokerage company that arranged loads for transport with customers to whom M&D and other of Northern Ag’s brokers and carriers had no direct contact.

Appellants contend that M&D solicited the loads from Northern Ag for its own account and that, as a result, M&D was a motor carrier for the load at issue. In support of their contention, appellants rely on Schramm v. Foster35 for the holding that an entity may be treated as a motor carrier, as opposed to a broker, if it engages in solicitation for its own account. However, there was no evidence that M&D was contractually obligated to transport the Northern Ag loads exclusively and there was no evidence that M&D conveyed to Northern Ag that it would be transporting the load itself. In fact, a Northern Ag manager testified that on behalf of Northern Ag, he solicited brokers as well as carriers to fill shipping orders. In addition, Plambeck testified that Northern Ag was aware that M&D was a brokerage company and that M&D was using M&D drivers and also using brokered carriers for Northern Ag loads. Plambeck also testified that M&D *1002 never told Northern Ag that it would haul all of the offered loads through M&D’s trucking division. As a result, there is no evidence that M&D solicited the Northern Ag loads as a motor carrier for its own account.

M&D did not directly dispatch Johnson on the load in question. Instead, Northern Ag contacted M&D with the load information, M&D communicated that information to Turbo Turtle, and Turbo Turtle communicated that information to Johnson. Johnson’s cell phone records indicate Turbo Turtle was the one who contacted Johnson about the Northern Ag load, while M&D had directly dispatched Johnson on a previous North Dakota load. Johnson communicated with Turbo Turtle about routes and stops but there was no evidence in the record establishing that Johnson communicated with M&D about the means and method of the load. However, even if M&D had directly dispatched Johnson on the Northern Ag load, such an action would not determine M&D was a motor carrier. The text messages in which M&D instructed Johnson on the North Dakota load and the text messages in which Turbo Turtle instructed Johnson on the Northern Ag load provided only pickup and destination information. The provision of such information is consistent with the role of a third-party logistics company with the responsibility of coordinating shipment of the freight relative to the customer’s needs.36

While relevant to the question of whether M&D legally bound themselves to transport the Northern Ag loads, Northern Ag listing M&D on the bill of lading and other pickup/dropoff records is not dispositive evidence M&D was acting as the motor carrier. The identification of a transportation company as the “carrier” on the bill of lading does not prove that the transportation company was in fact the carrier in this transaction. In Schramm, the court found that a bill of lading prepared by a third party, which identified the defendant as the *1003 “carrier” of the load was insufficient to establish the defendant’s carrier status, because the defendant played no role in its preparation.37

**14 In the instant matter, the record indicates that typically two different documents were generated for each load shipped: one by the customer when the load was picked up and one by Northern Ag when the load was dropped off. Nothing in the record indicates that M&D had any involvement in preparing either document. For the load involved in the accident, only the pickup document was generated, because the load was not dropped off. The pickup document listed M&D as the carrier and was created by the customer. However, as discussed above, when the load was picked up, the truck and trailer displayed Turbo Turtle’s signage and carrier number. M&D’s signage and carrier number were not displayed on the truck and trailer, and there is no evidence in the record indicating that Johnson was carrying any sort of lease agreement for M&D to use Turbo Turtle’s truck. As such, Turbo Turtle’s involvement with the shipment would have been readily apparent to the customer at the pickup location. Similarly, the Northern Ag manager’s testimony that Northern Ag had no knowledge M&D was assigning loads to Turbo Turtle does not account for this readily apparent information from the dropoff locations. When considering these factors in the context of the entire record, Northern Ag’s internal records and its manager’s testimony listing M&D as the motor carrier are insufficient on their own to lead a reasonable trier of fact to determine M&D was the carrier.

Appellants’ contention that M&D had control over Johnson and his equipment fails to support a finding that M&D was a motor carrier for the load in question. The record on appeal does not indicate that M&D had exclusive control over Johnson and his equipment. As analyzed above, the contract between M&D and Turbo Turtle did not create or operate as a lease *1004 agreement, Turbo Turtle was not required to make specific drivers available to M&D, Johnson did not directly contract with M&D, Johnson’s agreement with Turbo Turtle was that he could drive only Turbo Turtle’s equipment for loads issued by Turbo Turtle or M&D but there was no such restriction if Johnson used other equipment, there was an exception in the M&D and Turbo Turtle contract where Turbo Turtle could drive outside loads for harvesttime, and Turbo Turtle owned and was responsible for maintenance and insurance on the equipment.

Based upon our review of the record, all of the above factors indicate that there is insufficient evidence to present a genuine issue of material fact that M&D was the motor carrier of the load at issue.

3. NEGLIGENT HIRING, TRAINING, OR SUPERVISION
Appellants argue that the district court erred in dismissing their claim that M&D negligently hired, trained, or supervised Johnson. Under this assignment, appellants contend that the district court’s reasoning was tainted by its incorrect determination that M&D was a broker and not a motor carrier.

We have previously held that an employer is subject to liability for physical harm to third persons caused by the employer’s failure to exercise reasonable care in selecting an employee, even if such employee is an independent contractor.38 However, as we determined above, the record fails to provide sufficient evidence to present a genuine issue of material fact that Johnson was M&D’s employee or that M&D negligently hired, trained, or supervised Johnson.

FMCSA and FMCSR require motor carriers to obtain and maintain records on each of the drivers they employ, such as driving and medical records.39 However, as we determined *1005 above, the record also fails to provide sufficient evidence to present a genuine issue of material fact that M&D was the motor carrier of the load at issue and instead demonstrates M&D was acting as a broker.

Thus, the district court did not err in dismissing appellants’ claim that M&D negligently hired, trained, or supervised Johnson.

4. CROSS-APPEAL
Because we determine the district court did not err in granting M&D’s motion for summary judgment and dismissing appellants’ claims, we need not address M&D’s cross-appeal that the district court erred in failing to find appellants’ claim of respondeat superior was barred by the settlement between appellants, Turbo Turtle, and Johnson.

V. CONCLUSION
For the reasons stated above, there are no genuine issues of material fact. M&D is entitled to a judgment as a matter of law, because Johnson’s relationship with M&D was that of an independent contractor; M&D did not have liability under that independent contractor relationship for Johnson’s negligence; and M&D was a broker of the load at issue and not a motor carrier responsible for Johnson’s hiring, training, or supervision. Thus, the district court did not err in granting M&D’s motion for summary judgment and dismissing appellants’ claims.

**15 AFFIRMED.

All Citations
— N.W.2d —-, 301 Neb. 977, 2018 WL 6816025

Footnotes

1
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).

2
Id.

3
Id.

4
Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).

5
Id.

6
Id.

7
Id.

8
See id.

9
See Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

10
See Kime, supra note 4.

11
Id.

12
Id.

13
See id.

14
See id.

15
See Mays, supra note 9.

16
Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).

17
Id.

18
See id.

19
See id.

20
See id.

21
See Restatement (Second) of Torts § 414 (1965).

22
See Gaytan, supra note 16.

23
See id.

24
See Cutlip v. Lucky Stores, 22 Md. App. 673, 325 A.2d 432 (1974).

25
See Gaytan, supra note 16.

26
See 49 C.F.R. § 395.3(2) (2017).

27
Kime, supra note 4. See, also, Harris v. Velichkov, 860 F.Supp.2d 970 (D. Neb. 2012), affirmed sub nom. Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780 (8th Cir. 2014); Gaytan, supra note 16.

28
See, 49 U.S.C. §§ 13901 and 13906 (2012 & Supp. V 2017); Harris, supra note 27.

29
See, e.g., 49 U.S.C. § 14102(a)(4) (2012); Crocker v. Morales-Santana, 854 N.W.2d 663 (N.D. 2014); Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564 (Tex. App. 2004).

30
49 U.S.C. § 13102(2) (2012). See, also, 13 C.J.S. Carriers § 87 (2017).

31
See Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292 (11th Cir. 2018).

32
See, e.g., Mass v. Braswell Motor Freight Lines, Inc., 577 F.2d 665 (9th Cir. 1978); Hewlett-Packard v. Brother’s Trucking Enterprises, 373 F.Supp.2d 1349 (S.D. Fla. 2005); Nipponkoa Ins. Co., Ltd. v. C.H. Robinson Worldwide, Inc., No. 09 Civ. 2365(PGG), 2011 WL 671747 (S.D.N.Y. Feb. 18, 2011) (unpublished memorandum and order).

33
Harris, supra note 27.

34
See Schramm v. Foster, 341 F.Supp.2d 536 (D. Md. 2004).

35
Id.

36
See id.

37
Schramm, supra note 34.

38
Kime, supra note 4.

39
See 49 C.F.R. §§ 391.25 (2017) and 391.51(a) (2014).

Brettman v. M & G Truck Brokerage, Inc.

2019 IL App (2d) 180236
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Appellate Court of Illinois, Second District.
Derek BRETTMAN, Individually and as Guardian of Gina Brettman, a Disabled Person, Plaintiff-Appellant,
v.
M & G TRUCK BROKERAGE, INC., and Texana Pickle Producers, Inc., Defendant-Appellees.
No. 2-18-0236
|
Opinion filed January 17, 2019
Appeal from the Circuit Court of McHenry County. No. 15-LA-76, Honorable Thomas A. Meyer, Judge, Presiding.

OPINION
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
*1 ¶ 1 Plaintiff, Derek Brettman, individually and as guardian of Gina Brettman, appeals the trial court’s grant of summary judgment to defendants, M & G Truck Brokerage, Inc., and Texana Pickle Producers, Inc., on four counts. Counts I and II were against M & G for negligence (vicarious liability) and negligent hiring. Counts III and IV were against Texana and were also for negligence (vicarious liability) and negligent hiring. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND
¶ 3 This matter arises out of a traffic accident between Gina Brettman and a tractor trailer driven by Isreal Vela, an employee of E.G.G. Trucking, which was owned by Efren Garcia (hereinafter collectively referred to as E.G.G., where appropriate). The accident occurred at a Huntley intersection that was under construction. It occurred after Vela had delivered a load of cucumbers from Texana in Progresso, Texas, to a Kraft/Claussen pickling plant in Woodstock. M & G brokered the delivery of the cucumbers. Plaintiff filed a 27-count complaint against E.G.G., Kraft/Claussen, Texana, M & G, and various entities involved in the construction of the intersection, such as Brown Traffic Products and Siemen’s Industry, Inc. Plaintiff reached settlements with many of these entities, including Kraft/Claussen and several of the construction entities. Plaintiff’s action remains pending as to E.G.G. This appeal concerns M & G and Texana only, and the trial court has entered the requisite finding under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 4 Texana grows cucumbers in Texas and Mexico. It sells the cucumbers to processing facilities across the United States, such as the Kraft/Claussen plant in Woodstock. It is not a trucking company, does not own any commercial or semi-trucks, and does not have a department-of-transportation number or motor-carrier authority. It does not contract with trucking companies. Rather, it works with shipping brokers to arrange the shipments. (In 2010, four years before the accident, a part owner of Texana, Frank Gonzalez, left Texana and became a part-owner at M & G. Members of the same, extended Gonzalez family work at both companies.)

¶ 5 M & G is a Texas business entity that brokers freight delivery of products. M & G maintains a roster of 3000 carrier companies across the country, upon which it draws to arrange for the shipment of goods for its clients. To be on the roster, a carrier is required to submit a carrier information form, an insurance certificate, a W-9 form, and its motor-carrier and department-of-transportation numbers. M & G does not have an exclusive contract with any of its carriers. It works with a number of carriers, just as each carrier works with a number of brokers. As such, M & G does not have a long-term contract with any of its carriers. Instead, each shipment load requires its own contract.

¶ 6 E.G.G. is a licensed motor carrier. It owned the refrigerated trailer involved in the instant case. It also owned the tractor that pulled the trailer, and it paid for all of the maintenance and insurance for the equipment. E.G.G. hired Vela, who had been working for E.G.G. for 10 years.

*2 ¶ 7 In August 2013, Texana entered into a contract with Kraft/Claussen to supply cucumbers for the 2013-14 season. Throughout that season, Texana worked with 10 different brokerage companies to arrange for the shipment of its cucumbers. In turn, those 10 brokerage companies secured 100 different motor carriers to haul the cucumbers.

¶ 8 On March 9, 2014, Texana contacted M & G, asking M & G to arrange the shipment at issue. M & G, in turn, chose E.G.G. to haul the load. M & G had been working with E.G.G. since 2007. In those seven years, M & G had selected E.G.G. to haul as many as 10 loads per month without incident.

¶ 9 M & G took the following actions in brokering the load. It negotiated the freight and shipping charges. And, it negotiated its own commission on the shipping charges. After the delivery was completed, Texana would pay M & G the shipping charge. Then, M & G would pay E.G.G., after deducting its own commission. M & G advanced $1500 to E.G.G. to cover expenses in hauling the load, like gas.

¶ 10 The contract between M & G and E.G.G. set forth certain instructions for the trip, such as the required temperature to keep the trailer. Kraft/Claussen chose the temperature and the deadline for delivery. Vela was to call M & G daily, before 10 a.m., or be subject to a $150 fine. He was also to call M & G if there was any delay that would prevent him from delivering the load on time.

¶ 11 Instructions aside, Vela testified in deposition that he conducted his own pre-trip inspection of the truck. He would address any problems with equipment without asking M & G for help. He chose what route to take, what speed to travel, and when to fuel up. He did not feel rushed over the course of the trip.

¶ 12 E.G.G. paid Vela for executing the trip. It administered Vela’s drug testing and provided his safety training. E.G.G. instructed Vela to pick up the load from Texana at approximately 11 a.m. on March 9, 2014. Vela was to deliver the load to Kraft/Claussen by 5 a.m. on March 14, 2014.

¶ 13 After unloading the cucumbers at the Kraft/Claussen plant, Vela was no longer required to check in with M & G. E.G.G. instructed Vela to take Interstate 90 to the nearest truck stop to wait for a new load assignment, which could originate from M & G or a new broker. After delivering the load, about 25 miles from the Kraft/Claussen plant but before reaching Interstate 90, Vela collided with Brettman at an intersection. Vela was going straight, driving at the posted speed limit of 45 miles per hour, and Brettman was turning left with a green arrow. The intersection was under construction, and Vela later stated that he was confused by the traffic control signals. Vela saw that the permanent traffic signals were covered, so he assumed there were no traffic controls for drivers traveling in his direction. At the last second, he saw a temporary traffic signal hung with wire over the intersection. The temporary signal was red. He could not stop in time, and he collided with Brettman. Brettman suffered severe injuries as a result of the collision and filed the instant lawsuit.

¶ 14 In the seventh amended complaint at issue here, the first four counts are relevant. In count I, plaintiff alleged negligence (vicarious liability) against M & G. Plaintiff theorized that E.G.G., with Vela as its driver and Garcia as its owner, were agents of M & G, because M & G imposed rules on driver conduct, thereby exercising a requisite degree of control to establish a principal-agent relationship. The agents were guilty of one of the following wrongful acts or omissions: failure to stop at a red light, failure to keep a reasonably careful lookout for other vehicles, failure to decrease speed, and driving too fast for conditions. As a result of these wrongful acts or omissions, Vela’s truck collided with Brettman’s automobile, causing injury.

*3 ¶ 15 In count III, plaintiff alleged the same, but against Texana.

¶ 16 In count II, plaintiff alleged negligent hiring against M & G. He alleged that M & G had a duty to exercise reasonable care when it selected a carrier to haul the load at issue. In his view, the exercise of reasonable care included performing an independent investigation and background check on E.G.G. and Vela. Had M & G performed an adequate investigation, it would have discovered, inter alia, that E.G.G. was an unrated motor carrier and that Vela had a history of forging timesheets. M & G negligently hired a company it should have known to be unfit. The exercise of reasonable care in hiring also included supervising E.G.G. in the transportation and delivery of commercial product to Kraft/Claussen. M & G failed in this as well. As a result of these wrongful acts or omissions, Vela’s truck collided with Brettman’s automobile, causing injury.

¶ 17 In count IV, plaintiff alleged the same, but against Texana.

¶ 18 The parties proceeded to discovery, where the evidence established the facts discussed above. In addition, plaintiff retained Whitney Morgan to testify to a broker’s duty of care in selecting a trucking company. Morgan had worked for the U.S. Department of Transportation, enforcing regulations. Morgan reviewed the evidence in the case, including the deposition testimony of Vela and Garcia. In Morgan’s view, brokers should contract only with carriers that have satisfactory ratings from the Federal Motor Carrier Safety Administration (FMCSA). The FMCSA conducts compliance reviews to determine whether a carrier meets minimum safety standards. The FMCSA never conducted a compliance review on E.G.G., so E.G.G. was an “unrated” carrier. In Morgan’s opinion, a broker should not contract with an unrated carrier.

¶ 19 Morgan posited that, if a broker were going to contract with an unrated motor carrier, it should conduct its own safety review. To do this, a broker should go to the FMCSA website to see if a given carrier has a record of accidents or safety violations. The FMCSA website showed that, while unrated overall, E.G.G. was rated at 75% on one metric measuring management controls. This was above FMCSA’s “intervention threshold” of 65%. E.G.G.’s two drivers had four citations between them in the 14 months preceding the accident for falsifying timesheets and driving without enough rest. In fact, Garcia admitted in deposition that he was aware that Vela had previously falsified a timesheet. Garcia informed Vela that he would be fired if he did it again. Also, Vela previously documented average speeds of 70 miles per hour. This speed is unrealistic, given that a trip is not entirely highway driving. Either Vela was speeding, or he drove more hours than allowed by federal regulations.

¶ 20 According to Morgan, it is clear that Vela once again falsified his timesheets while performing on the contract with M & G. Under certain conditions applicable here, federal regulations require a driver to rest a minimum of 10 hours before going back on the road each day. Morgan hypothesized that, from the times and locations recorded on Vela’s cell phone, it is clear he did not do this. Morgan believed that Vela drove 18 hours without proper rest before arriving at the Kraft/Claussen docking station and that he got less than 6.5 hours of sleep on the night preceding the accident.

*4 ¶ 21 Maria Vergara, a general manager for M & G, testified in deposition that she has used the FMCSA website to search for driver safety violations. In the past, she has disqualified certain carriers based on the FMCSA information concerning prior violations. However, she did not perform a review of E.G.G. prior to this trip. She was aware, prior to contracting with E.G.G. for this trip, that an E.G.G. driver had been in a weather-related accident within the past year. No one was hurt in that accident.

¶ 22 Both M & G and Texana moved for summary judgment. In his response, plaintiff affirmatively abandoned count III, negligence (vicarious liability) against Texana. The trial court granted summary judgment to M & G and Texana on the remaining counts.

¶ 23 As to count I, vicarious liability as to M & G, the court agreed with M & G that any agency relationship shared by M & G and E.G.G., if it ever existed, terminated after Vela completed the delivery. The court stressed that M & G had no control over Vela after the delivery:
“[P]laintiff put forth the argument that[,] if the fatigue * * * occurred as a result of his driving while in the employ or acting as an agent of * * * M & G, * * * M & G should * * * then continue to be responsible after * * * the delivery of the product, and I would disagree with that because after the delivery * * * their authority to control his actions terminated as well.
And they couldn’t tell him don’t drive. They couldn’t tell him sleep.” (Emphases added.)
Further, Vela no longer had an obligation to check in with M & G. The court stated:
“[T]here was no obligation that he make phone calls, there was no obligation that he refrigerate anything. There was no obligation to * * * M & G that he do anything. He was dead to them at that stage.”

¶ 24 The court rejected plaintiff’s argument that the agency relationship continued after the delivery because, according to plaintiff, “if you have a trip assignment, a trip contract, that trip does not end until the driver reaches his home base.” See St. Paul Fire & Marine Insurance Co. v. Frankart, 69 Ill. 2d 209, 13 Ill.Dec. 31, 370 N.E.2d 1058 (1977). M & G responded that St. Paul was inapposite. It concerned the interpretation of an insurance contract, not the scope of an agency relationship. The court agreed with M & G: “I don’t think the St. Paul case is applicable to this situation. I think factually it is distinguishable, and the fact that it addresses insurance coverage rather than the scope of an agency relationship for people who hired a carrier tells me not to rely on it.”

¶ 25 As to counts II and IV, negligent hiring, the court granted summary judgment to M & G and Texana, respectively. It determined that, regardless of which company had selected E.G.G., the accident occurred after the completion of the work E.G.G. was hired to perform. The court appeared to classify the issue of liability beyond the limits of the contracted-for work as determinative of the duty element rather than the proximate-cause element. It stated: “I’m less comfortable getting into a question of proximate cause, because that’s a tougher standard for summary judgment.” This appeal followed.

¶ 26 II. ANALYSIS
¶ 27 Plaintiff appeals the trial court’s grant of summary judgment to M & G and Texana on all four counts. We will not address count III, negligence (vicarious liability) as to Texana, because plaintiff unequivocally conceded below and at oral argument that no evidence supported that claim. Therefore, the argument is waived.

¶ 28 As to the remaining counts, “summary judgment is proper where, when viewed in the light most favorable to the non-moving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005). “[W]hile a plaintiff need not prove [his] entire cause during summary judgment, [he] must present some evidentiary facts to support the elements of [his] cause of action. [Citation.] If a plaintiff fails to establish even one element of the cause of action, summary judgment in favor of defendant is wholly proper.” Wallace v. Alexian Bros. Medical Center, 389 Ill. App. 3d 1081, 1085, 329 Ill.Dec. 899, 907 N.E.2d 490 (2009). We review a grant of summary judgment de novo. Sollami v. Eaton, 201 Ill. 2d 1, 7, 265 Ill.Dec. 177, 772 N.E.2d 215 (2002). And, we may affirm a grant of summary judgment for any reason that finds its basis in the record, regardless of whether the trial court exercised similar reasoning. Northern Illinois, 216 Ill. 2d at 305, 297 Ill.Dec. 319, 837 N.E.2d 99.

¶ 29 A. Count I: Negligence (Vicarious Liability) as to M & G
*5 ¶ 30 The parties agree that count I turns on the existence of a principal-agent relationship between M & G and E.G.G. when the alleged negligence occurred. Plaintiff’s argument is twofold. He contends that (1) an agency relationship was formed when M & G exercised control over E.G.G.’s delivery of the load and (2) the agency relationship continued after the delivery and through the time that the accident occurred. We reject plaintiff’s argument. We agree with the trial court that, even if an agency relationship was formed during the delivery of the load, it terminated when E.G.G. completed its contractual obligation to deliver the load and M & G ceased to exercise any control over it or its driver. Because there was no agency relationship at the time the alleged negligence occurred, the trial court correctly granted summary judgment to M & G.

¶ 31 The principal-agent relationship is an exception to the general rule that a plaintiff in a negligence action must seek a remedy from the person who caused the injury. Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d 1051, 1056, 349 Ill.Dec. 269, 946 N.E.2d 463 (2011). Under the theory of respondeat superior, a principal is vicariously liable for the conduct of its agent, but not for the conduct of an independent contractor. Id. at 1057, 349 Ill.Dec. 269, 946 N.E.2d 463. In distinguishing between an agent and an independent contractor, the court must consider the level of control under which the agent or independent contractor operates. Id. An agent voluntarily enters into a relationship whereby the principal has a right to control his conduct. Id. An independent contractor undertakes to produce a certain result, but he is not under the control of the person for whom he does the work. Id. The court is to consider whether there is a right to control the manner of work performance, regardless of whether that right is exercised. Id. The court may consider the nature of the work performed in relation to the general business of the employer, the right to discharge, the method of payment, the provision of necessary tools, whether taxes are deducted from payment, and the level of skill required. Id. at 1058, 349 Ill.Dec. 269, 946 N.E.2d 463. No single factor is determinative. Id.

¶ 32 Both parties agree that Sperl controls the issue of whether M & G and E.G.G. ever shared an agency relationship. The facts of Sperl are as follows. CHR was a federally licensed freight broker. It sold its services to customers needing to transport goods, and then it contracted with carriers to provide transportation to its customers. One of the carriers with whom CHR contracted was Dragonfly. Dragonfly agreed that all transportation would be performed under the contract, which required it to use competent drivers and be responsible for the drivers’ salaries, charges, and workers’ compensation expenses. The contract specified that Dragonfly was an independent contractor. The contract allowed Dragonfly to haul loads for CHR. As to the specific trip at issue, however, Dragonfly’s driver hauled a load of potatoes owned by CHR. CHR issued a load confirmation sheet with special instructions. The special instructions required that Dragonfly’s driver “stay in constant communication with [CHR]” and make “check calls” daily no later than 10 a.m. Id. Further, the driver was to keep the truck at a certain temperature and was given a strict deadline. All of these requirements were enforceable by fine. The driver collided with the plaintiff during the haul of CHR’s potatoes. She later testified that CHR’s tight deadlines and system of fines put pressure on her and made it impossible for her to also comply with federal regulations limiting driving time. A jury determined that the driver had been an agent of CHR, making CHR liable for damages from the crash.

¶ 33 On appeal, CHR argued that the trial court should have granted its motion for a judgment notwithstanding the verdict or a new trial, because the evidence did not support the jury’s determination of an agency relationship. The appellate court disagreed, holding that the evidence was sufficient to uphold the jury’s special finding. Id. at 1060, 349 Ill.Dec. 269, 946 N.E.2d 463. Despite contractual evidence that the parties intended an independent-contractor relationship, specific conduct indicated an agency relationship. Id. at 1057-58, 349 Ill.Dec. 269, 946 N.E.2d 463. The court explained that the driver’s services were closely aligned with CHR’s business of hauling freight for its customers. Id. at 1058-59, 349 Ill.Dec. 269, 946 N.E.2d 463. CHR owned the product at issue as well as the warehouse to which it was being delivered. Id. at 1059, 349 Ill.Dec. 269, 946 N.E.2d 463. CHR was, therefore, motivated to see that the driver delivered the product with care. And, CHR enforced an extensive system of fines, influencing the driver’s compensation. It was while trying to adhere to CHR’s strict operation requirements that the driver collided with the plaintiff. The court concluded: “Th[e] extensive requirements, coupled with [the driver’s] fine-based compliance, directed [her] conduct during the entire transportation process and support the finding that CHR had the right to control the manner in which [the driver] performed her job.” Id. at 1058, 349 Ill.Dec. 269, 946 N.E.2d 463. As the evidence supported that CHR had the right to control the manner in which the driver performed her job, it also supported the existence of an agency relationship. Id. at 1059, 349 Ill.Dec. 269, 946 N.E.2d 463.

*6 ¶ 34 Some of the indicia of control set forth in Sperl are, arguably, present here. M & G was engaged exclusively in the trucking business. M & G instructed E.G.G. to maintain the truck at a certain temperature and check in once per day. E.G.G. was to notify M & G if the shipment was going to be late. M & G imposed a system of fines to enforce its requirements. Unlike in Sperl, however, M & G did not own the product at issue or the warehouse to which it was being delivered. M & G was not acting in furtherance of its own business when it instructed E.G.G. to maintain the truck at a certain temperature. Rather, acting as a broker, it passed on requirements from Kraft/Claussen. There was no indication that M & G required E.G.G. to remain in “constant contact” or that its operation requirements and system of fines were so onerous that E.G.G. felt pressure to violate federal regulations in order to avoid incurring fines. To the contrary, Vela testified that he did not feel pressure.

¶ 35 The key difference, however, is that, in Sperl, the accident occurred when the driver was acting at the broker’s direction. Here, in contrast, the accident occurred after E.G.G. had completed its contract for delivery and after M & G ceased to exercise any control over it. For that reason, we, like the trial court, do not find it necessary to determine whether sufficient evidence supports that M & G ever had a right to control E.G.G. so as to establish an agency relationship. To us, it is dispositive that, at the time of the accident, M & G did not exercise any control over E.G.G. so as to continue in an agency relationship.

¶ 36 We look to the Restatement (Third) of Agency for further support that the agency relationship terminated upon the completion of the contracted-for delivery: “An agent’s actual authority may terminate upon the occurrence of circumstances under which the agent should reasonably conclude the principal would no longer assent to the agent’s taking action on the principal’s behalf. If the principal has engaged the agent for a particular task, its completion is such a circumstance.” Restatement (Third) of Agency § 3.09(b) (2003) (not yet adopted by the supreme court, cited for guidance only). Here, if it ever existed, the agency relationship terminated upon the completion of the task of delivering the cucumbers to the Kraft/Claussen plant. E.G.G. had already completed the assigned task before the time of the alleged negligence—failure to stop at a red light, failure to keep a reasonably careful lookout for other vehicles, failure to decrease speed, and driving too fast for conditions. No indicia of control were present at that time. M & G could no longer direct E.G.G. in any manner. M & G could no longer inform E.G.G. what to deliver, where to deliver it, what temperature to keep it at, or to stay in contact. It could not tell Vela to rest. E.G.G. alone instructed and controlled Vela after the delivery.

¶ 37 Plaintiff argues that there is “some indication” that E.G.G. was still acting within the scope of its agency relationship with M & G following the delivery, because it expected M & G to look for loads it could haul on its return trip to Texas. We reject this argument. That E.G.G. remained open to working with M & G in the future does not create a “genuine issue” that it was operating at its direction at the time of the accident. E.G.G.’s hope or expectation of future business with M & G cannot show M & G’s current control over E.G.G.

¶ 38 Plaintiff also argues, as he did below, that the agency relationship between M & G and E.G.G. did “not terminate at the point of delivery [but] continue[d] at least until the owner-driver return[ed] to the point where the haul originated, to the terminal from which the haul was assigned, or the owner-driver’s home terminal from which he customarily obtain[ed] his next assignment.” St. Paul, 69 Ill. 2d at 218, 13 Ill.Dec. 31, 370 N.E.2d 1058; see also Occidental Fire & Casualty Co. of North Carolina, 113 Ill. App. 3d 215, 68 Ill.Dec. 766, 446 N.E.2d 937 (1983); Hodges v. Johnson, 52 F.Supp. 488 (W.D. Va. 1943).

*7 ¶ 39 Plaintiff takes this quote out of context. St. Paul discussed not the termination of an agency relationship, but the definition of a term in an insurance policy, “being used in the business.” St. Paul, 69 Ill. 2d at 213, 13 Ill.Dec. 31, 370 N.E.2d 1058. To interpret that term, the court looked to define a trip or an assignment. Id. at 218-19, 13 Ill.Dec. 31, 370 N.E.2d 1058. The court determined that, in the context of the insurance-coverage issue before it, a trip did not necessarily end at the point of delivery but could include the return leg. Id. at 219, 13 Ill.Dec. 31, 370 N.E.2d 1058.

¶ 40 Our ruling does not conflict with the definition of a trip set forth in St. Paul and the other cases cited by plaintiff. This case is not about the definition of a term in an insurance contract. It is about the right to control the work. M & G’s right to exercise any control over Vela ended upon the completion of delivery. It was E.G.G., not M & G, who instructed Vela after the completion of delivery and on the return leg. Upon the completion of delivery, E.G.G. was free to accept a new assignment from M & G or any other broker. Unless the parties entered into a new contract, M & G had no control over E.G.G. after its delivery of the cucumbers and satisfaction of the instant contract. Thus, there was no evidence of an agency relationship at the time of the alleged negligence, so M & G cannot be vicariously liable for the alleged negligence. Summary judgment was properly granted on count I.

¶ 41 B. Counts II and IV: Negligent Hiring
¶ 42 Plaintiff next argues that the trial court erred in granting summary judgment to M & G and Texana on counts II and IV, respectively, for negligent hiring. Under this theory, M & G and Texana would be liable not for E.G.G.’s actions, but for their own actions in hiring E.G.G. to transport the goods. In a negligence action, the plaintiff must plead and prove: (1) the existence of a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty; (3) an injury proximately caused by that breach; and (4) damages. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007). Proximate cause has two components: cause in fact and legal cause. Turcios v. DeBruler Co., 2015 IL 117962, ¶ 23, 392 Ill.Dec. 541, 32 N.E.3d 1117. As to cause in fact, courts typically consider the but-for test or the substantial-factor test. Id. The but-for test states that conduct cannot be a cause of an event if the event would have occurred without it. Id. The substantial-factor test states that conduct is a cause of an event if it was a material element and a substantial factor in bringing about the event. Id. As to legal cause, courts typically assess foreseeability. Id. ¶ 24. A court must consider whether the injury is one that a reasonable person would see as a likely result of his conduct, or whether the injury is so highly extraordinary that imposing liability is not justified. Id. “The question is one of policy—how far should a defendant’s legal responsibility extend for conduct that did, in fact, cause the harm?” Id.

¶ 43 In an action for negligent hiring or retention of an employee, specifically, the plaintiff must plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; (3) that this particular unfitness proximately caused the plaintiff’s injury; and (4) damages. Doe v. Catholic Bishop of Chicago, 2017 IL App (1st) 162388, ¶ 11, 415 Ill.Dec. 683, 82 N.E.3d 1229. Further, the duty of care in selecting an independent contractor is that which a reasonable person would exercise under the circumstances. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 66, 412 Ill.Dec. 833, 77 N.E.3d 1. The common-law tort of negligent hiring or retention finds its basis in the Restatement (Second) of Torts § 411 (1965): “One who employs an independent contractor to: (a) do work which involves risk of bodily harm unless it is skillfully and carefully done; or (b) perform a duty which the employer owes to third persons, is subject to liability for bodily harm caused by the failure to exercise reasonable care to employ a competent contractor.” (Emphasis added.) A “competent and careful contractor” is a contractor who “possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary.” Restatement (Second) of Torts § 411 cmt. a, at 377 (1965). The Illinois Supreme Court has adopted section 411 of the Restatement. Carney, 2016 IL 118984, ¶ 88, 412 Ill.Dec. 833, 77 N.E.3d 1; Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21, 276 N.E.2d 336 (1971).

*8 ¶ 44 We begin with count II, negligent hiring against M & G. The parties spend much of their briefs citing to Morgan’s and Vergara’s deposition testimony and debating whether there is a genuine issue that M & G failed in its duty to exercise reasonable care in hiring E.G.G. Rather than engage in this debate, even if we assume that there was sufficient evidence to raise a material factual issue as to whether M & G breached its duty of care in hiring E.G.G., plaintiff’s argument ultimately fails. The remaining question is whether the failure to exercise reasonable care in hiring E.G.G. to perform the contracted-for work proximately caused the injuries. Although the trial court properly recognized E.G.G.’s completion of the contracted-for work as an enormous hurdle for plaintiff, it did not seem to recognize that the completion of the contracted-for work implicated the proximate-cause element: “I’m less comfortable getting into a question of proximate cause, because that’s a tougher standard for summary judgment.” Instead, the trial court incorrectly assumed that the termination of the hiring relationship implicated the duty element. (Perhaps the court meant that there can be no duty to exercise reasonable care in retaining an independent contractor where that contractor is no longer retained.) In any case, M & G does not seriously debate that it had a duty to exercise reasonable care in hiring a carrier. Regardless of the court’s misstatement, we may affirm a grant of summary judgment for any reason that finds its basis in the record. Northern Illinois, 216 Ill. 2d at 305, 297 Ill.Dec. 319, 837 N.E.2d 99. This claim turns on proximate cause.

¶ 45 We recognize that proximate cause is typically a matter for the jury. Platson v. NSM, America, Inc., 322 Ill. App. 3d 138, 144, 255 Ill.Dec. 208, 748 N.E.2d 1278 (2001). However, if the facts alleged do not sufficiently demonstrate both cause in fact and legal cause, which involves policy considerations, the lack of proximate cause may be determined by a court as a matter of law. City of Chicago v. Beretta, U.S.A., Corp., 213 Ill. 2d 351, 395-96, 290 Ill.Dec. 525, 821 N.E.2d 1099 (2004). Proximate cause is not a matter for the jury in this case, because the cause of action at issue sets forth a rigorous proximate-cause standard that simply cannot be met under the existing record. As we explain, the definition of the cause of action of negligent hiring or retention centers on the work to be performed and whether the incompetent execution of that work caused harm to a third party. Again, in an action for negligent hiring or retention, the injury must have occurred by virtue of the servant’s employment. Bates v. Doria, 150 Ill. App. 3d 1025, 1032, 104 Ill.Dec. 191, 502 N.E.2d 454 (1986). The employer’s liability attaches “only where there was demonstrated some connection between the plaintiff’s injuries and the fact of employment.” Id. As stated in Carney, 2016 IL 118984, ¶ 65, 412 Ill.Dec. 833, 77 N.E.3d 1, an employer is subject to liability for harm to third persons caused by its failure to exercise reasonable care to employ a competent and careful contractor to do work that will involve a risk of harm unless that work is carefully done.

¶ 46 As a matter of public policy, the courts have set a rigorous proximate-cause standard for the cause of action. Doe v. Boy Scouts of America, 2014 IL App (2d) 130121, ¶ 43, 378 Ill.Dec. 667, 4 N.E.3d 550. In Gomien, the supreme court strongly implied that, to support a claim for negligent hiring or retention, the injury must have occurred while the independent contractor was directly involved in the performance of the contracted-for work, as opposed to an act collateral to the work for which the contractor was engaged. Gomien, 50 Ill. 2d at 24, 276 N.E.2d 336.

¶ 47 In Gomien, the defendant manufacturer selected an independent contractor to solicit sales. The defendant knew that the contractor must operate a motor vehicle to perform his obligations under the agreement, and the defendant had a duty to persons using highways to exercise reasonable care in selecting the contractor. While operating his vehicle for the solicitation of sales for the defendant, the contractor struck and injured the plaintiff. The plaintiff pleaded that, had the defendant investigated, it would have learned that the contractor was a habitually negligent driver with a history of traffic violations and accidents. The trial court dismissed the complaint, and the appellate court affirmed. The appellate court reasoned that there could be no liability, because the accident occurred not when the contractor was directly involved in the work of soliciting customers or selling products, for which he was retained, but when he was engaged in the collateral act of operating his motor vehicle on the highway. Gomien v. Wear-Ever Aluminum, Inc., 131 Ill. App. 2d 760, 765, 264 N.E.2d 511 (1970). The supreme court reversed: “Under this state of pleadings, the operation of the automobile by the contractor was not an act collateral to the performance of the work for which he was engaged. It was part of the conduct directly involved in the performance of the work contracted for.” Gomien, 50 Ill. 2d at 24, 276 N.E.2d 336.

*9 ¶ 48 Applying the law set forth in Gomien leads to a different result in this case. In Gomien, the injury occurred while the contractor was directly involved in completing the contracted-for task. If, as in Gomien, the injury here had occurred while Vela was operating his motor vehicle to deliver produce, M & G might have been subject to liability under a theory of negligent hiring or retention. The difference is that, here, Vela was not operating his vehicle to perform the contracted-for work when the injury occurred. The work for which he had been engaged was completed. He was no longer hired or retained by M & G. He was 25 miles away from the pickle plant.

¶ 49 As in Gomien, in every Illinois negligent hiring or retention case cited by plaintiff, the accident occurred while the selected contractor performed the contracted-for work. See, e.g., Carney, 2016 IL 118984, ¶ 88, 412 Ill.Dec. 833, 77 N.E.3d 1 (no liability, although the construction accident occurred on the job, because the victim subcontractor was not a third party entitled to protection under the cause of action); Hayward v. C.H. Robinson Co., 2014 IL App 3d 130530, ¶ 43, 388 Ill.Dec. 140, 24 N.E.3d 48 (no liability, although the traffic accident occurred while the contractor delivered the broker’s freight, because the broker did not have reason to know of the particular unfitness); see also Platson, 322 Ill. App. 3d at 140, 255 Ill.Dec. 208, 748 N.E.2d 1278 (a negligent supervision claim; assault occurred at work). Similarly, in every non-Illinois negligent hiring or retention case cited by plaintiff, the accident occurred while the selected contractor performed the contracted-for work. See L.B. Foster Co. v. Hurnblad, 418 F.2d 727, 728 (9th Cir. 1969) (the accident occurred during the contracted-for haul of steel); McComb v. Bugarin, 20 F.Supp.3d 676, 678 (N.D. Ill. 2014); Schramm v. Foster, 341 F.Supp.2d 536, 540 (D. Md. 2004) (the accident occurred during the contracted-for shipment of soymilk); Puckrein v. ATI Transport, Inc., 186 N.J. 563, 897 A.2d 1034 (2006) (the accident occurred during the contracted-for removal of waste); Hudgens v. Cook Industries, Inc., 1973 OK 145, 521 P.2d 813 (the accident occurred during the contracted-for shipment of wheat).

¶ 50 Our research has not revealed an Illinois negligent hiring or retention case finding proximate cause when the injury occurred after the completion of the contracted-for work, during a period this court has referred to as posttermination. We find Boy Scouts instructive on the limitations of posttermination liability. In Boy Scouts, a retired scout executive sexually assaulted a teenage boy. The mother sued the local Boy Scouts organization, the Blackhawk Area Council (BAC), alleging, inter alia, negligent hiring and retention. Her theory of the case was as follows. The executive was a pedophile who posed a constant threat to boys. BAC knew that, in the past, pedophiles had infiltrated its leadership. BAC did not appropriately screen the executive before awarding him the position, negligently hiring him. If it had screened the executive, it would have known that, in the 1970s, he had been discharged from the military for suspected homosexual activity1 and that, in the late 1980s or early 1990s, he had been apprehended in Germany for driving under the influence while an 18-year-old man was in the car with him. Also, BAC did not heed warning signs that occurred during the executive’s tenure, negligently retaining him. It had been told that the executive positioned himself in the boys’ locker room of a swimming pool complex so as to see the boys changing. The executive interacted with the victim between 2001 and 2006, beginning when the victim was 10 years old. During that time, the executive exploited his leadership role to gain the victim’s trust, admiration, and obedience. The two saw each other at all major scouting events. The executive spoke with the victim and his mother at these events. The executive took a special interest in the victim, encouraging him to apply for a foreign exchange program. The executive visited the victim’s home to speak with his mother about it. He also agreed to pay for the victim to attend modeling school, though the victim’s mother ultimately decided against it. In March 2006, the executive retired. He no longer held a position with BAC. Three months later, in June or July 2006, the executive invited the victim to go to an event in Michigan with him. The two would share a hotel room, with no one else. The mother agreed to the trip, because she had known the executive for several years, she knew him to be a scout leader, and she trusted him. While on the trip, the executive sexually assaulted the victim.

*10 ¶ 51 The trial court granted summary judgment to BAC. It explained that, as a matter of law, BAC could not have committed the tort of negligent hiring and retention, because BAC no longer employed the executive when the executive inflicted the injuries for which the plaintiff sought relief.

¶ 52 This court affirmed. We noted that there was no authority in Illinois for holding an employer liable for posttermination acts. Boy Scouts, 2014 IL App (2d) 130121, ¶ 41, 378 Ill.Dec. 667, 4 N.E.3d 550. We acknowledged that other jurisdictions were split on the question of liability for posttermination acts, but we declined to make a definitive statement absent a full briefing. Id. ¶¶ 41, 42. Nevertheless, we appreciated the logic and practicality of deeming an employee’s termination a cutoff for employer liability. Id. ¶ 41. And, we observed:
“The law of negligent hiring and retention in this state appears to afford little scope for liability for posttermination acts of employees. We consider first the following representative statement of the tort: ‘Liability for negligent hiring arises only when a particular unfitness of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others.’ [Citation.] This language suggests that the purpose of the tort is to prevent injuries that occur during the term of employment and, consequently, suggests that the employer’s duty of care does not extend beyond the cessation of employment.” Id. ¶ 42.

¶ 53 We distinguished acts occurring posttermination from acts occurring outside the scope of employment. An employer may be liable for out-of-the-scope acts, but only where the employee is on the employer’s premises or using the chattel of the employer and the employer has reason to know of the need and opportunity for exercising control over the employee. Id. ¶ 43. As no authority exists for posttermination liability, and as out-of-scope liability is extremely limited, Illinois law and policy have demonstrated a rigorous standard of proximate causation in the context of negligent hiring or retention cases. Id. “Under this strict concept of causation, if the injury occurs—as here—after the actor’s employment has ended, then a fortiori the injury cannot be connected to that employment.” Id. We summarized that “what plaintiff seeks is a broadening of liability as currently recognized by Illinois law.” Id. ¶ 51.

¶ 54 As in Boy Scouts, plaintiff here is asking this court to expand Illinois law on negligent hiring or retention. We decline to do so. Plaintiff has not cited one case where the accident, wrongful act, or injury occurred posttermination. This case is different from a scenario where a contractor’s incompetent workmanship resulted in a construction failure post-job, such as a cornice falling off of a building and onto a pedestrian. See, e.g., Carney, 2016 IL 118984, ¶ 79, 412 Ill.Dec. 833, 77 N.E.3d 1 (discussing the Restatement (Second) of Torts § 411 (1965)). In that example, the work itself was not performed in a manner so as to reasonably protect third parties from harm. Here, the work itself, delivering the cucumbers, was performed without incident. Rather, it was the worker, not the work, who went on, posttermination, to injure a third party. Illinois does not have a policy of making those who select independent contractors become insurers for the independent, posttermination actions of those contractors.

*11 ¶ 55 We reject plaintiff’s theory that, because E.G.G. continued to perform on its contract with M & G on the return leg of the trip, the accident did not occur posttermination. Plaintiff again cites to St. Paul for the proposition that, in the trucking industry, an assignment to haul a load does not end until the driver reaches his home base or is assigned a new job. Again, St. Paul is not applicable. St. Paul sought to define terms set forth in an insurance contract. That issue is inapposite to the instant case. More to the point, here, the contract terminated upon completion of the contracted-for task, the delivery of the cucumbers. After the delivery, E.G.G. had no remaining obligations to M & G. Postdelivery meant posttermination.

¶ 56 We also reject plaintiff’s alternate theory that, even if the accident occurred posttermination, the negligent act—driving too many hours so as to become fatigued—occurred predelivery while E.G.G. performed on its contract with M & G. Still, we find this case analogous to Boy Scouts. In that case, the executive engaged in acts, such as grooming, while employed that created a condition for the wrongful act of molestation. However, he committed the wrongful act of molestation, which caused the injury, posttermination. Here, even if we assume the independent contractor became fatigued while completing his contract for M & G, he committed the wrongful acts—failing to stop at a red light, failing to keep a reasonably careful lookout for other vehicles, failing to decrease speed, and driving too fast for conditions—posttermination.

¶ 57 We now turn to count IV, negligent hiring against Texana. We first note that plaintiff is unable to point to any evidence that supports that Texana hired E.G.G. Plaintiff’s expert, Morgan, opined only that M & G was negligent in selecting E.G.G.; Morgan did not offer any opinion as to Texana. In fact, plaintiff concedes: “While plaintiff agrees that the preponderance of the evidence does indicate that M & G hired E.G.G., M & G itself denies this. Consequently, [whether Texana hired E.G.G.] is a material fact that is in dispute and should be resolved by a jury, not on summary judgment.” Plaintiff also states that one person at M & G, Gonzalez, had an ownership interest in Texana four years prior to the accident. This observation is mere conjecture on plaintiff’s part. Mere speculation, conjecture, or guess is insufficient to withstand summary judgment. Lewis v. Chica Trucking, Inc., 409 Ill. App. 3d 240, 251, 350 Ill.Dec. 191, 948 N.E.2d 260 (2011). Plaintiff failed to raise a genuine issue as to whether Texana hired E.G.G. And, even if Texana had selected E.G.G. to haul the load, the negligence still would have occurred posttermination.

¶ 58 III. CONCLUSION
¶ 59 Summary judgment is a drastic remedy to be awarded only where the right of the movant is clear and free from doubt. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999). Here, however, it is warranted. There was no agency or hiring relationship between M & G and E.G.G. at the time of E.G.G.’s alleged negligence. E.G.G. was not on M & G’s premises, using M & G’s equipment, or acting under the direction of M & G. E.G.G. had completed its contracted-for work at the time of the accident. For the reasons stated, we affirm the trial court’s grant of summary judgment to M & G and Texana.

¶ 60 Affirmed.

Justices Burke and Hudson concurred in the judgment and opinion.
All Citations
— N.E.3d —-, 2019 IL App (2d) 180236, 2019 WL 244623

Footnotes

1
The court, of course, rejected the mother’s insinuation that homosexual individuals were more likely to commit acts of child abuse.

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