The doctrine of respondeat superior renders a master vicariously liable for a tort committed by a servant within the scope of the servant's employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts. The critical inquiry in determining whether there is an employment relationship depends on the degree of control exercised by the purported employer over the results produced or the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer's payroll; and (5) was on a fixed schedule. The fact that there is a contract designating a person as an independent contractor is to be considered, but it is not dispositive. Whether an actor is an independent contractor or an employee is usually a factual issue for a jury.
Brielmeier v. Leal, NY Slip Op 02163 (2d Dep't April 24, 2024)
