Date: 02-27-2014

Case Style: Jose Castellanos v. Tommy John, LLC

Case Number: 2014 UT 48

Judge: McHugh

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Jacob S. Gunter, Attorney for Appellant

Defendant's Attorney: Michael G. Brady, Attorney for Appellee

Description: ¶1 Plaintiff Josue Castellanos appeals from the district court’s
grant of summary judgment in favor of defendant Tommy John,
LLC (Tommy John) on Castellanos’s claims for negligent hiring and
for vicarious liability based on intentional torts committed by a
security company’s employees. We affirm.
Castellanos v. Tommy John, LLC
BACKGROUND1
¶2 On August 14, 2009, Castellanos was involved in a physical
altercation with security guards at a bar and restaurant owned and
operated by Tommy John (the establishment). The security guards
were employees of Thor Staffing, a company that had contracted
with Tommy John to provide security services at the establishment.
Tommy John and Thor Staffing had entered into an Independent
Contractor and Work for Hire Agreement (the Agreement), which
identified Thor Staffing as an independent contractor with the
responsibility to determine the best methods and procedures
necessary to perform its services.2 The parties agree that Tommy
1. “Because we are reviewing a grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in the
light most favorable to . . . the nonmoving party.” See Magana v.
Dave Roth Constr., 2009 UT 45, ¶ 5, 215 P.3d 143 (citation and
internal quotation marks omitted). Accordingly, we recite the facts
in the light most favorable to Castellanos.
2. The Agreement stated, among other things,
10.1) In performing the Work described in this
Agreement and in Schedule A, Contractor [Thor
Staffing] will employ Contractor’s best technical
procedures, skill, and judgment. Contractor will
perform the Work in a manner consistent with
Client[ Tommy John]’s best interests.
10.2) Contractor will provide the Work as described
in Schedule A that conforms to the specifications
agreed upon between Client and Contractor.
. . . .
11.1) Contractor is an independent contractor.
Contractor has not previously been employed by
Client, and Contractor is not an agent or employee of
Client. Contractor shall have no right to bind Client,
and Client shall not be liable on account of any action
or inaction on the part of Contractor, except as
(continued...)
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Castellanos v. Tommy John, LLC
John did not provide any guidance or training to, or impose any
rules or regulations controlling the actions of, Thor Staffing’s
security guards.
¶3 In 2010, Castellanos filed suit against Tommy John, alleging
that he suffered physical and emotional injuries as a result of being
forcibly removed from the establishment by the security guards.3
Based on the theory of respondeat superior, Castellanos alleged
that Tommy John was liable for the security guards’ intentional
torts, including assault, battery, and false imprisonment.
Castellanos also alleged that Tommy John was liable for its own
negligence in the hiring, supervision, and retention of the
individual security guards. But Castellanos did not allege that
Tommy John was negligent in its hiring, supervision, and retention
of Thor Staffing. Tommy John later filed a motion for summary
judgment, arguing that it could not be held liable for the intentional
torts of the security guards, because they were employees of an
independent contractor, Thor Staffing. Tommy John also claimed
that it was not liable for the acts of Thor Staffing, because it did not
retain control over the manner of Thor Staffing’s performance and
because Tommy John did not participate in Thor Staffing’s
expulsion of Castellanos from the establishment. Finally, Tommy
John asserted that it was not negligent in hiring, supervising, and
2. (...continued)
otherwise specifically provided in this Agreement or
an attached Schedule.
. . . .
11.5) Contractor possesses the requisite skill and
experience to complete the Work in a professional
and timely manner in accordance with industry
standards. Contractor shall receive no training from
Client.
3. Castellanos also filed suit against Thor Staffing, the unnamed
security guards, and the managing member of Tommy John. The
managing member was later dismissed as a party, and Thor
Staffing failed to appear. Castellanos and Tommy John are the only
parties to this appeal.
20120599‐CA 3 2014 UT App 48
Castellanos v. Tommy John, LLC
retaining the individual security guards, because, as the employer
of an independent contractor, it had no responsibility to exercise
supervisory control over Thor Staffing or its hiring practices.
¶4 In opposition to the motion for summary judgment,
Castellanos argued that, as a business owner, Tommy John had a
nondelegable duty to keep its premises safe and, therefore, Tommy
John was liable for Thor Staffing’s breach of that duty. Castellanos
also asserted that Tommy John could be vicariously liable for work
done by Thor Staffing because security guard work is inherently
dangerous. Finally, Castellanos argued that disputed material facts
precluded summary judgment on his negligent hiring, supervision,
and retention claim.
¶5 The district court granted summary judgment to Tommy
John on all claims and certified the judgment as final.4 The district
court ruled that “under these circumstances, where Thor Staffing
maintained an independent contractor status and Tommy John was
not involved and did not retain control over how Thor Staffing
performed its security services, Tommy John cannot be held
vicariously liable for the acts of Thor Staffing or its security
guards.” Castellanos timely appeals.
ISSUES AND STANDARD OF REVIEW
¶6 Castellanos challenges the district court’s grant of summary
judgment on two grounds. First, Castellanos contends that Tommy
John is vicariously liable for the acts of Thor Staffing’s employees
under an exception to the general rule that an employer of an
independent contractor is not liable for the harmful acts of its
contractor. Second, Castellanos contends that the district court
erred when it held as a matter of law that Tommy John was not
directly negligent in hiring, supervising, and retaining the security
guards.
4. The district court heard oral arguments on Tommy John’s
summary judgment motion, but a transcript of that hearing is not
in the record on appeal.
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Castellanos v. Tommy John, LLC
¶7 “[S]ummary judgment is appropriate only when ‘there is no
genuine issue as to any material fact . . . and the moving party is
entitled to a judgment as a matter of law.’” Penunuri v. Sundance
Partners, Ltd., 2013 UT 22, ¶ 8, 301 P.3d 984 (omission in original)
(quoting Utah R. Civ. P. 56(c)). “An appellate court reviews a trial
court’s legal conclusions and ultimate grant or denial of summary
judgment for correctness, and views the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(citations and internal quotation marks omitted). And “because
negligence cases often require the drawing of inferences from the
facts, which is properly done by juries rather than judges, summary
judgment is appropriate in negligence cases only in the clearest
instances.” Price v. Smith’s Food & Drug Ctrs., Inc., 2011 UT App 66,
¶ 7, 252 P.3d 365 (citation and internal quotation marks omitted).
ANALYSIS
I. Exceptions to the Nonliability Rule
¶8 In Utah, “the employer of an independent contractor is not
liable for physical harm caused to another by an act or omission of
the contractor or his servants.” Magana v. Dave Roth Constr., 2009
UT 45, ¶ 22, 215 P.3d 143 (citation and internal quotation marks
omitted). The rationale for this rule is that “where the principal
employer does not control the means of accomplishing the
contracted work, the contractor is the proper party to be charged
with the responsibility for preventing the risk [arising out of the
work], and administering and distributing it.” Thompson v. Jess,
1999 UT 22, ¶ 13, 979 P.2d 322 (alteration in original) (citation and
internal quotation marks omitted). This general rule is subject to
exceptions, including (1) where the employer of the independent
contractor retains control over the work directly resulting in the
injury, id. ¶¶ 14, 18; (2) where the work is inherently dangerous, id.
¶¶ 14, 29; and (3) where the injury is the result of a nondelegable
duty owed by the employer to the injured person, see Price, 2011 UT
App 66, ¶ 26. Castellanos claims that an exception to the general
nonliability rule is present here and, therefore, that the district
20120599‐CA 5 2014 UT App 48
Castellanos v. Tommy John, LLC
court improperly granted summary judgment in favor of Tommy
John. For the reasons discussed below, we agree with the district
court that none of these exceptions precluded summary judgment
in this case.
A. Retained Control
¶9 In granting summary judgment, the district court held as a
matter of law that Tommy John is not vicariously liable for Thor
Staffing’s intentional torts under a theory of retained control.
Pursuant to the retained control doctrine, the employer of an
independent contractor “remains liable for the contractor’s actions
when the employer participate[s] in or control[s] the manner in
which the contractor’s work is performed, and therefore owes [a]
duty of care concerning the safety of the manner or method of
performance implemented.” Magana, 2009 UT 45, ¶ 23 (alterations
in original) (citation and internal quotation marks omitted). To
determine whether an employer is liable under the retained control
doctrine, Utah courts apply the active participation standard. Id.
¶ 24. “Under that standard, an employer has a duty to ensure the
safety of its contractor’s work where the employer ‘actively
participates’ in the contractor’s work.” Id. (quoting Thompson, 1999
UT 22, ¶ 19). The employer “actively participates” in the
contractor’s work if the employer “directs that the contracted work
be done by use of a certain mode or otherwise interferes with the
means and methods by which the work is to be accomplished.” Id.
(citation and internal quotation marks omitted). An employer that
merely exercises control over the desired result of the contractor’s
work will not be held to have actively participated. Thompson, 1999
UT 22, ¶ 24. Furthermore, active participation is insufficient unless
it relates to “the injury‐causing aspect of the work.” Magana, 2009
UT 45, ¶ 27 (emphasis, citation, and internal quotation marks
omitted).
¶10 In this case, the district court ruled that the retained control
exception is inapplicable because “Tommy John was not involved
and did not retain control over how Thor Staffing performed its
security services.” The undisputed facts support the district court’s
conclusion.
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Castellanos v. Tommy John, LLC
¶11 Castellanos argued that summary judgment was
inappropriate because there is a factual dispute as to the extent
Tommy John controlled the hours the security guards were
requested to work and the locations within the establishment
where the security guards were supposed to work. Castellanos also
provided deposition testimony from a friend (Friend) who was
expelled from the establishment with Castellanos, stating that after
the security guards had removed them the owner pointed at
Castellanos’s friend, identifying him for the police who had arrived
at the scene. Friend further indicated that the owner later walked
over to him, took his picture, and told him never to return to the
establishment. According to Castellanos, this evidence establishes
that the owner had retained some control over security activities at
the establishment. However, such facts are insufficient to establish
retained control because they do not relate to the injury‐causing
aspects of the work, i.e., the means and methods by which the
security guards removed Castellanos from the establishment. See
id. ¶¶ 26–28.
¶12 Castellanos has advanced no facts that could establish that
Tommy John actively participated in how Thor Staffing or its
security guards carried out their security duties. Instead, the
undisputed facts prove the opposite proposition. For example, the
Agreement expressly provided that Tommy John would not
provide any training to Thor Staffing and that Thor Staffing would
utilize its best procedures, skill, and judgment in carrying out its
security duties. Although Castellanos argued to the district court
that the Agreement was invalid, he acknowledged that Tommy
John did not have any procedures or regulations in place regarding
Thor Staffing’s work and that Tommy John did not instruct or train
Thor Staffing or Thor Staffing personnel on how to remove patrons
from the establishment. Therefore, Castellanos concedes that
Tommy John did not actively participate in the means and methods
used to carry out the injury‐causing aspect of the work.
Accordingly, the district court was correct in concluding that there
are no material issues of disputed fact that preclude summary
judgment under the retained control exception to the general
nonliability rule.
20120599‐CA 7 2014 UT App 48
Castellanos v. Tommy John, LLC
B. Inherently Dangerous Work
¶13 Next, Castellanos argues that the district court erred in
granting summary judgment because the facts of this case fall
within the exception to the nonliability rule that an employer
remains “vicariously liable when the work done by an independent
contractor is inherently dangerous.” Castellanos relies on section
427 of the Restatement (Second) of Torts, which imposes vicarious
liability on an employer with knowledge of the dangerous nature
of the work:
One who employs an independent contractor to do
work involving a special danger to others which the
employer knows or has reason to know to be
inherent in or normal to the work, or which he
contemplates or has reason to contemplate when
making the contract, is subject to liability for physical
harm caused to such others by the contractor’s
failure to take reasonable precautions against such
danger.
Restatement (Second) of Torts § 427 (1965).5 Castellanos
acknowledges that Utah’s appellate courts have not formally
adopted section 427. However, he asserts that Utah has recognized
5. Section 59 of the Restatement (Third) of Torts embodies the same
principles. See Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 59 (2012) (“An actor who hires an
independent contractor for an activity that the actor knows or
should know poses a peculiar risk is subject to vicarious liability
for physical harm when the independent contractor is negligent as
to the peculiar risk and the negligence is a factual cause of any such
harm within the scope of liability.”); see also id. § 59 cmt. a
(explaining that section 59 expresses both the peculiar risk doctrine
and the inherently dangerous activity doctrine); Restatement
(Second) of Torts § 416 cmt. a (1965) (noting the subtle distinction
between the two variants of “the same general rule” but noting that
the two doctrines “have been applied more or less
interchangeably”).
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Castellanos v. Tommy John, LLC
a form of the inherently dangerous work doctrine in Gleason v. Salt
Lake City, 74 P.2d 1225 (Utah 1937).
¶14 In Gleason, the supreme court recognized that the general
rule of nonliability does not apply “where that work was
intrinsically dangerous, and the injury was a consequence of the
failure of the contractor to take appropriate precautions.” Id. at
1232 (citation and internal quotation marks omitted); see also
Sullivan v. Utah Gas Serv. Co., 353 P.2d 465, 466–67 (Utah 1960)
(acknowledging the validity of the rule but concluding that the case
did not fall within it); Dayton v. Free, 148 P. 408, 411–12 (Utah 1914)
(same). However, Utah courts have never formally determined that
the Restatement’s formulation of the rule announced in Gleason
accurately states Utah law. See Poteet v. White, 2006 UT 63, ¶ 8, 147
P.3d 439 (“We have not previously considered whether to adopt
[section 427] into the law of Utah. And we decline to consider
adopting [it] here because it is unnecessary to our resolution of the
case.”); Thompson v. Jess, 1999 UT 22, ¶¶ 14, 27, 30, 979 P.2d 322
(discussing section 427 but declining to apply it when an employee
of an independent contractor is injured); Johnson v. Department of
Transp., 2004 UT App 284, ¶ 11 n.3, 98 P.3d 773 (declining to
address the inherently dangerous work doctrine due to resolution
of the issues based on delegability and retained control), judgment
aff’d, 2006 UT 15, 133 P.3d 402.
¶15 In Thompson v. Jess, 1999 UT 22, 979 P.2d 322, our supreme
court discussed sections 413, 416, and 427 of the Restatement
(Second) of Torts, which address the peculiar risk and inherently
dangerous exceptions to the nonliability rule, but concluded none
of them were applicable to a claim filed by an injured employee of
the independent contractor. Id. ¶¶ 27–33. The court explained that
the purpose of the exceptions “is ‘to ensure that innocent third
parties injured by the negligence of an independent contractor
hired by a landowner to do inherently dangerous work on the land
would not have to depend on the contractor’s solvency in order to
receive compensation for the injuries.’” Id. ¶ 29 (quoting Privette v.
Superior Court, 854 P.2d 721, 725 (Cal. 1993)). We addressed
Thompson’s treatment of the Restatement in Berrett v. Albertsons Inc.,
2012 UT App 371, 293 P.3d 1108, cert. granted, 304 P.3d 469 (Utah
20120599‐CA 9 2014 UT App 48
Castellanos v. Tommy John, LLC
2013), stipulated motion to dismiss granted (Utah Dec. 16, 2013) (No.
20130165). In Berrett, we stated that we saw in Thompson “no
hostility to sections 413, 416, and 427 of the Restatement in
principle” and noted that our supreme court “did not suggest that
these sections conflict with Utah law.” Id. ¶ 35. We further
indicated that the supreme court in Thompson “did not describe
them as inconsistent with Utah’s general rule of nonliability for
employers, but rather as ‘exceptions’ to it.” Id. Therefore, we
concluded that the principles of section 413 of the Restatement
(Second) of Torts—which applies the peculiar risk doctrine, a
variant of the inherently dangerous work doctrine, in the context
of direct liability—are part of Utah’s common law of negligence.6
Id. ¶¶ 25, 31, 37.
¶16 Although the question of whether the inherently dangerous
work doctrine in section 427 is also part of Utah’s common law was
not before us in Berrett, Castellanos argues that the policies
discussed in Thompson and Berrett favor the adoption and
application of section 427 here. Castellanos contends, therefore, that
the inherently dangerous work doctrine as expressed in section 427
should have prevented the district court from entering summary
judgment against Castellanos. Tommy John responds that
regardless of whether Utah has adopted section 427, security guard
work is not inherently dangerous.7 Because we agree with Tommy
6. In his reply brief, Castellanos argues for reversal based on the
peculiar risk doctrine. While he mentions this doctrine in his
opening brief on appeal, he does not make a separate argument for
reversal based on that doctrine in his opening brief. Nor does it
appear that he sufficiently raised this argument before the district
court. Accordingly, Castellanos has waived this issue, and we do
not consider whether it is applicable here or whether there is any
relevant distinction between the two doctrines. See Allen v. Friel,
2008 UT 56, ¶ 8, 194 P.3d 903; In re Discipline of Alex, 2004 UT 81,
¶ 21 n.2, 99 P.3d 865.
7. Tommy John argues that Castellanos did not preserve his
argument that security guard work is inherently dangerous,
(continued...)
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Castellanos v. Tommy John, LLC
John that the provision of security services is not inherently
dangerous work, we need not decide whether section 427 of the
Restatement (Second) of Torts is consistent with the law of Utah.
¶17 According to Castellanos, the nature of security work
inherently requires physical force, and the “risk of negligently or
unlawfully removing people from a bar is a risk . . . inherent to
providing security guards at a bar.” In support, he relies primarily
on Pusey v. Bator, 762 N.E.2d 968 (Ohio 2002), in which the Supreme
Court of Ohio held,
[W]hen an employer hires an independent contractor
to provide armed security guards to protect
property, the inherently‐dangerous‐work exception
is triggered such that if someone is injured by the
weapon as a result of a guard’s negligence, the
employer is vicariously liable even though the guard
responsible is an employee of the independent
contractor.
Id. at 975; see also Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 30
(D.D.C. 2008) (stating in the context of a negligent supervision
claim that “providing armed security in a war‐like environment”
“might fairly be deemed ‘inherently dangerous’ as a matter of law”
(emphasis added)); Savinsky v. Bromley Grp., Ltd., 740 P.2d 1159,
1162 (N.M. Ct. App. 1987) (concluding that summary judgment for
defendant was inappropriate where evidence suggested the armed
security guard was engaged in inherently dangerous work).
7. (...continued)
because he failed to raise the issue in his complaint. However,
Castellanos raised and briefed section 427 in his memorandum in
opposition to Tommy John’s summary judgment motion, Tommy
John responded to that argument without objecting to its absence
from the complaint, and the district court addressed it, albeit
briefly, and rejected it. Accordingly, the argument is adequately
preserved.
20120599‐CA 11 2014 UT App 48
Castellanos v. Tommy John, LLC
¶18 We first note that there is nothing in the record here which
suggests the security guards provided by Thor Staffing were armed
or that Castellanos was injured by a weapon. Furthermore, other
courts that have considered the issue of whether the provision of
security services is inherently dangerous have reached the opposite
conclusion from the Ohio court in Pusey. See, e.g., Gordon v. Jones,
No. 3:08CV‐P460‐S, 2010 WL 3341206, at *3 (W.D. Ky. Aug. 20,
2010) (concluding that a bus station operator was not liable for the
torts committed by an off‐duty police officer employed by an
independent‐contractor security company because “the use of
security guards is not an inherently dangerous activity”); Abbott v.
Town of Salem, No. 05‐cv‐127‐SM, 2007 WL 764483, at *3–4 (D.N.H.
Mar. 12, 2007) (concluding that a mall manager was not liable for
torts committed by the employees of an independent‐contractor
security company because the “provision of security services . . .
does not constitute an inherently dangerous activity”); Schreiber v.
Camm, 848 F. Supp. 1170, 1177–80 (D.N.J. 1994) (determining that
an estate owner was not liable for the torts committed by the
employees of an independent‐contractor security company because
“the deployment of an armed security guard is not an inherently or
abnormally dangerous activity, absent knowledge (imputed or
actual) of the dangerous propensities of the security guard”); Brien
v. 18925 Collins Ave. Corp., 233 So. 2d 847, 848–49 (Fla. Dist. Ct.
App. 1970) (declining to hold that armed security work is
inherently dangerous and instead holding that “in the absence of
an allegation that the owner had or ought to have had notice of the
dangerous propensities of the guard employed by the security
corporation, the owner will not be liable for consequences of the
allegedly negligent manner in which the employee of the
independent contractor performed his duties”).
¶19 Decisions from Utah have indicated that certain types of
work are universally recognized as inherently dangerous. Compare
Sullivan v. Utah Gas Serv. Co., 353 P.2d 465, 466–67 (Utah 1960)
(indicating that the installation of gas pipes may be inherently
dangerous but concluding that the inherently dangerous doctrine
did not apply, because the defendant and pipe installer had only a
“seller and purchaser” relationship), and Dayton v. Free, 148 P. 408,
412 (Utah 1914) (suggesting that underground blasting is
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Castellanos v. Tommy John, LLC
inherently dangerous but that an employee of an independent
contractor may not recover against the employer of the
independent contractor on that basis), with Long v. Smith Food King
Store, 531 P.2d 360, 362 (Utah 1973) (holding that serving free
samples of pie in a grocery store is not an inherently dangerous
activity), and Gleason v. Salt Lake City, 74 P.2d 1225, 1233 (Utah 1937)
(concluding that pumping water out of an elevator shaft is not
intrinsically dangerous for purposes of vicarious liability).
Decisions in other contexts suggest that the category of activities
that qualify as inherently dangerous is narrow. See Groen v. Tri‐OInc.,
667 P.2d 598, 600, 602 (Utah 1983) (explaining that “‘[f]lying
wire’ requires a helicopter to fly sideways alongside electrical
towers . . . [to] thread[] a 100‐foot length of lead rope connected to
a steel cable along the towers” and stating that the evidence in the
record supported the conclusion that the work is “inherently
dangerous”); Brigham v. Moon Lake Electric Ass’n, 470 P.2d 393, 395
(Utah 1970) (“A high tension transmission wire is one of the most
dangerous things known to man.”); Henrie v. Rocky Mountain
Packing Corp., 202 P.2d 727, 729–30 (Utah 1949) (listing “mining,
quarrying, railroading, and manufacturing of explosives and
deleterious chemicals” as among the types of work that are
“universally considered dangerous to life, health, and safety”);
Fazio v. Corey Bros. Constr. Co., 134 P. 747, 750 (Utah 1913) (“[T]he
use of dynamite in blasting is inherently dangerous . . . .”).
¶20 Furthermore, the Restatement (Second) of Torts explains
that for work to be considered “inherently” or “intrinsically”
dangerous, it is necessary that the work
involve[] a risk, recognizable in advance, of physical
harm to others which is inherent in the work itself, or
normally to be expected in the ordinary course of the
usual or prescribed way of doing it, or that the
employer [have] special reason to contemplate such
a risk under the particular circumstances under
which the work is to be done.
Restatement (Second) of Torts § 427 cmt. b (1965). Thus, the
inherently dangerous exception to the nonliability rule has no
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Castellanos v. Tommy John, LLC
application where the risk is “not inherent in the work itself
or in the ordinary or prescribed way of doing it, and not
reasonably to be contemplated by the employer.” Id. § 427 cmt. d.
The Restatement’s examples of inherently dangerous activities
include work that involves the demolition of a high chimney,
excavation of a highway, use of a scaffold to paint a wall above a
sidewalk, and “use of instrumentalities” such as fire or explosives.
See id. § 427 cmt. c. The Restatement explains that while some such
activities are not “highly dangerous,” they all involve a risk,
recognizable in advance, that danger inherent in the work itself
may cause harm to others. Id.
¶21 Here, Castellanos has not presented any evidence indicating
that contracting with an independent security company involves
a risk of physical harm to Tommy John’s patrons which Tommy
John should have recognized in advance, and which is inherent in
the security work itself or normally expected in the ordinary course
of the usual or prescribed way of doing security work. Indeed, the
very purpose of hiring an independent‐contractor security
company is to reduce the risk that patrons of a business will inflict
harm on other patrons or property. Under these circumstances,
“[t]here is some irony in the proposition that providing security is
an inherently dangerous activity with respect to third parties.”
Powell v. City & County of Denver, Colo., 973 F. Supp. 1198, 1203 n.3
(D. Colo. 1997). Furthermore, the ordinary course or prescribed
way of performing security work does not inherently involve
intentional violence by the security guards against patrons of the
establishment they were hired to secure. In Schreiber v. Camm, 848
F. Supp. 1170 (D.N.J. 1994), the federal district court for New Jersey
explained this distinction in its decision dismissing the employer
of an independent‐contractor security company from an action by
lessors of the employer’s estate who were mistakenly shot by a
security guard employed by the security company. Id. at 1172–73.
The court stated, “The negligence in this case was not that the
guard failed to protect the tenants from harm from third parties,
but that in doing so he injured them himself. This negligence is
clearly foreign to the normal or contemplated risks of doing the
work.” Id. at 1177 (citation and internal quotation marks omitted).
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Castellanos v. Tommy John, LLC
¶22 We conclude that the risk of the intentional infliction of
physical injuries on patrons by the security guards hired by an
independent‐contractor security company is not inherent in
security work itself. Likewise, it is not normally expected in the
ordinary course of the usual or prescribed way of performing
security work. Therefore, the inherently dangerous work exception
to the nonliability rule8 would not apply here because the provision
of security services is not inherently dangerous.9
8. We express no opinion on whether the Restatement’s
formulation of the inherently dangerous work doctrine in section
427 is consistent with Utah law. See generally Huddleston v. Union
Rural Electric Ass’n, 841 P.2d 282, 287–88, 295–99 (Colo. 1992) (en
banc) (providing contrary views between the majority and dissent
about the wisdom of the inherently dangerous exception as
expressed in section 427).
9. In this case, Castellanos alleges that Tommy John is vicariously
liable for the intentional torts of assault, battery, and false
imprisonment committed by the security guards. Some courts have
determined that section 427 “only creates a rule of vicarious
liability for an independent contractor’s negligence in the
performance of an inherently dangerous activity, not for an
independent contractor’s intentional torts.” Powell v. City & County
of Denver, Colo., 973 F. Supp. 1198, 1201, 1203 (D. Colo. 1997)
(refusing to hold a clinic liable for assault, battery, and intentional
infliction of emotional distress committed by an independent
security contractor and his employee); see also Campbell v. Security
Pac. Nat’l Bank, 133 Cal. Rptr. 77, 82 (Ct. App. 1976) (refusing to
hold bank liable for the intentional acts of independent contractor
hired to repossess an automobile because the exception in section
427 is limited to the negligent acts of an independent contractor);
Restatement (Second) of Torts § 427 & cmts. a, d (1965) (discussing
the inherently dangerous work exception in terms of negligence).
In contrast, other jurisdictions have concluded, without employing
section 427, that the employer of an independent‐contractor
security company is liable for the intentional torts of the company’s
employees. See, e.g., Nash v. Sears, Roebuck & Co., 163 N.W.2d 471,
(continued...)
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Castellanos v. Tommy John, LLC
C. Nondelegable Duty
¶23 Next, Castellanos claims that Tommy John is vicariously
liable because business owners have a nondelegable duty to keep
their premises safe. “‘A “nondelegable duty” means that an
employer of an independent contractor, by assigning work
consequent to a duty, is not relieved from liability arising from the
delegated duties negligently performed.’” Price v. Smith’s Food &
Drug Ctrs., Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365 (quoting 41
Am. Jur. 2d Independent Contractors § 43 (2005)). In support of his
argument that Tommy John could not delegate its duty to Thor
Staffing, Castellanos cites our decision in Price. In contrast, Tommy
John asserts that Price is not controlling because it is “a premises
liability case involving an alleged temporary unsafe condition of the
premises itself . . . rather than any alleged direct activity of an
independent contractor on the premises causing injury to a
patron.”
¶24 In Price, a third‐party vendor employed a food demonstrator
who offered food samples to customers from a table the vendor’s
employee set up in a Smith’s grocery store. Id. ¶ 2. Shortly after the
vendor’s employee disassembled the sample table for the day, the
plaintiff slipped on a puddle of water near where the table had
9. (...continued)
473–75 (Mich. Ct. App. 1968) (holding store owners liable for false
arrest, false imprisonment, assault, and battery committed by
security guard hired by independent‐contractor security company
but noting that the inherently dangerous activity doctrine did not
apply because the case involved intentional torts), rev’d on other
grounds, 174 N.W.2d 818 (Mich. 1970); Zentko v. G.M. McKelvey Co.,
88 N.E.2d 265, 268 (Ohio Ct. App. 1948) (holding store owners
liable for malicious prosecution committed by security guard hired
by independent‐contractor security company); see also Robert A.
Brazener, Annotation, Liability of One Contracting for Private Police
or Security Service for Acts of Personnel Supplied, 38 A.L.R. 3d 1332,
1341–49 (1971 & Supp. 2013) (collecting cases). Here, neither party
has adequately briefed this issue, and we therefore do not consider
it further. See Utah R. App. P. 24.
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Castellanos v. Tommy John, LLC
been. Id. The plaintiff sued Smith’s under a theory of direct liability
based on Smith’s failure to maintain the premises in a reasonably
safe condition and on a theory of vicarious liability based on the
vendor’s negligence. Id. ¶ 5. The district court granted Smith’s
motion for summary judgment, concluding that the plaintiff could
not recover on her direct liability claim because she had failed to
establish that Smith’s had constructive or actual notice of the
temporary dangerous condition on the premises. Id. With respect
to the plaintiff’s vicarious liability claim, the district court ruled
that Smith’s was not liable because neither the vendor nor the food
demonstrator were Smith’s employees. Id. On appeal, we explained
that there is an exception to the general rule that an employer is not
liable for the torts of an independent contractor where the “‘owner
of the premises . . . [has] a nondelegable duty to keep the premises
reasonably safe for business invitees.’” Id. ¶ 26 (alteration and
omission in original) (quoting Sullivan v. Utah Gas Serv. Co., 353
P.2d 465, 466 (Utah 1960)).10 We further instructed that an owner
may be “liable if it delegates that duty to an independent
contractor, who then breaches it.” Id. (citing 41 Am. Jur. 2d
Independent Contractors § 45 (2005) (“Store operators and other
business owners have a nondelegable duty to the public to keep
their place of business in a reasonably safe condition and free from
danger of personal injury.”)). Applying these principles in Price, we
concluded that summary judgment was properly granted to
Smith’s on the vicarious liability issue because it had not hired the
third‐party vendor to maintain, repair, or inspect its floors and
Smith’s had not offered a defense based on a delegation of its duty
to keep the premises safe. Id. ¶¶ 27–28.
¶25 Here, Castellanos argues that Tommy John attempted to
delegate to Thor Staffing its obligation to keep the premises
reasonably safe and also asserts that Tommy John is using that
10. In Sullivan v. Utah Gas Service Co., 353 P.2d 465 (Utah 1960), our
supreme court cited section 422 of the Restatement (First) of Torts.
Id. at 466–67; Restatement (First) of Torts § 422 (1934) (discussing
the liability of an employer of an independent contractor for the
contractor’s work on buildings or other structures on the land).
20120599‐CA 17 2014 UT App 48
Castellanos v. Tommy John, LLC
improper delegation as a defense to this action. He contends,
therefore, that Tommy John falls within the exception to the rule of
nonliability for the acts of independent contractors recognized in
Price. In response, Tommy John argues that Price stands for the
proposition that a property owner may not escape liability for
failing to maintain its premises in a reasonably safe condition by
delegating that duty to an independent contractor and that security
guard services are not a condition on the premises. See Thomas v.
Oregon State Police, No. 6:12‐cv‐01167‐AA, 2013 WL 3280246, at *2
(D. Or. June 25, 2013) (limiting landowner’s nondelegable duty to
keep its premises safe from “defects in the property itself” and
holding that landowner was not liable for the tortious acts of the
security guards employed by independent‐contractor security
company).
¶26 Castellanos points us to an Arizona Court of Appeals
decision, Simon v. Safeway, Inc., 173 P.3d 1031 (Ariz. Ct. App. 2007),
and asks us to reject Tommy John’s argument on the basis of that
court’s analysis. In Simon, the plaintiff sued Safeway for injuries he
sustained during an altercation with a security guard who was
working at a Safeway grocery store. Id. at 1032–33. As in this case,
the security guard in Simon was an employee of a company that
had contracted to provide security services for Safeway. Id. The
plaintiff claimed that Safeway was vicariously liable because, as a
business owner it had a nondelegable duty to provide safe
premises for its business invitees, including keeping such invitees
safe from the torts of independent contractors retained to work on
the premises. Id. at 1033, 1036. The Arizona Court of Appeals
agreed with the plaintiff that the facts presented were “more akin
to premises liability . . . than independent contractor liability.” Id.
at 1037. It therefore considered section 344 of the Restatement
(Second) of Torts helpful to its analysis. Id. That section provides,
A possessor of land who holds it open to the public
for entry for his business purposes is subject to
liability to members of the public while they are
upon the land for such a purpose, for physical harm
caused by the accidental, negligent, or intentionally
harmful acts of third persons . . . , and by the failure
20120599‐CA 18 2014 UT App 48
Castellanos v. Tommy John, LLC
of the possessor to exercise reasonable care to (a)
discover that such acts are being done or are likely to
be done, or (b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to protect
them against it.
Restatement (Second) of Torts § 344 (1965). The Simon court also
referenced a comment to the Restatement, which states, “The
rule . . . applies to the acts of independent contractors . . . who are
employed or permitted to carry on activities upon the land. The
possessor is required to exercise reasonable care, for the protection
of the public who enter, to supervise the activities of the
contractor . . . , including . . . his methods.” Id. § 344 cmt. c; see also
Simon, 173 P.3d at 1038. The Arizona court disagreed with
Safeway’s argument that section 344 pertains only to dangerous
conditions, and instead it viewed the Restatement and Arizona
cases relying on it as standing for “the limited proposition that a
landowner’s duty of care to business invitees encompasses
activities on the land and is not limited to dangerous conditions.”
Simon, 173 P.3d at 1038. The Simon court reasoned that “the
potential for abuse would be great” if Safeway could disclaim
liability “merely because the individuals it permitted to interact so
closely with its customers had been hired by an independent
contractor.” Id. at 1040. It therefore held that when “a business
owner assumes a duty to provide security services, that duty is
nondelegable, and the owner will not be insulated from liability for
the tortious acts of security personnel hired as independent
contractors.” Id.; see also id. at 1040 n.10 (collecting cases reaching
similar conclusions); Peachtree–Cain Co. v. McBee, 316 S.E.2d 9,
10–11 (Ga. Ct. App. 1984) (holding that when property owners
undertake to provide security services, they have a nondelegable
duty to provide responsible agents), aff’d, 327 S.E.2d 188 (Ga. 1985);
Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996)
(same); 41 Am. Jur. 2d Independent Contractors § 45 (2005) (citing
Peachtree–Cain).
¶27 In granting summary judgment to Tommy John, the district
court distinguished Simon from the present case based on the
nature of the relationship between Safeway and the security guard
20120599‐CA 19 2014 UT App 48
Castellanos v. Tommy John, LLC
in Simon. Safeway’s store manager played a role in the security
guard’s detention of the plaintiff, and the evidence as a whole
suggested “Safeway maintained some control over the use of force
by security guards and how shoplifting incidents were to be
handled.” Simon, 173 P.3d at 1035. The Simon court concluded that
this evidence “offer[ed] support for Simon’s claim that the
relationship between Safeway and [the security guard] . . . was that
of master– servant.” Id. Thus, the Simon court ruled that the district
court had erred in denying Simon’s motion for additional
discovery on the nature of that relationship. Id. at 1036. Because
there are no facts in the present case from which it can be inferred
that Tommy John had an employer–employee relationship with or
retained control over Thor Staffing or its employees, see supra ¶¶ 2,
10–12, the district court concluded that Simon was not helpful to its
analysis.
¶28 The district court considered more persuasive the Texas
Supreme Court’s decision in Fifth Club, Inc. v. Ramirez, 196 S.W.3d
788 (Tex. 2006). In that case, the plaintiff was denied entrance to a
nightclub by a doorman who requested that two members of the
parking lot security team escort the plaintiff away from the club’s
entrance. Id. at 790. The plaintiff was injured during an ensuing
altercation with a security guard who was working as an
independent contractor to provide parking security at the
nightclub. Id. The plaintiff sued the nightclub, arguing, among
other things, that it had assumed a nondelegable duty by
contracting for security services. Id. at 790–91. The Texas court
refused to expand the nondelegable duty exception by adopting a
rule whereby “a premises owner can be held liable when an
independent contractor’s work involves duties that are personal in
character,” including security. Id. at 792–96. The court
acknowledged that some states have adopted such a rule but
reasoned that neither of the rationales offered for doing so were
valid under Texas law. Id. at 793–96 (collecting cases).
¶29 The first reason advanced in Fifth Club for defining the
provision of security services as nondelegable based on the
personal character of the duty was to provide consistency with a
Texas state law that “impose[s] a nondelegable or personal duty on
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Castellanos v. Tommy John, LLC
the business owner to keep the premises safe, therefore making the
business owner responsible for the acts of independent contractors
hired to keep the premises safe.” Id. at 794. The Texas court was not
persuaded by this basis for imposing liability on the employer
because “this case is not based on premises liability, but involves
alleged vicarious liability for the acts of an independent
contractor.” Id. The second rationale the Fifth Club court considered
was an asserted public policy that “business owners should not
have the benefit of surveillance or protection of their property
without the penalties for unlawful activities by their independent
contractors performing protective or security functions.” Id. at
794–95. The court concluded that this rationale was not applicable
because the Texas Legislature “has not identified security work as
carrying . . . nondelegable duties or carved out a special exception
allowing business owners or employers to be held liable for the
conduct of their independent‐contractor security personnel.” Id. at
796. The Texas Supreme Court therefore declined to define the
provision of security services as nondelegable based on the
personal character of the duty and instead reaffirmed nonliability
for work performed by an independent contractor hired to provide
security services, subject to “the [retained] control exception and
the nondelegable duty exception, which includes inherently
dangerous activities and statutorily‐imposed duties.”11 Id. The
court further noted that a special exception for security work was
unnecessary because the plaintiff had a direct claim against the
nightclub for negligent hiring. Id.; see also Thomas, 2013 WL 3280246,
at *2 (holding that the provision of security is not a nondelegable
duty); Schreiber v. Camm, 848 F. Supp. 1170, 1175–79 (D.N.J. 1994)
(same); Del Signore v. Pyramid Sec. Servs., Inc., 537 N.Y.S.2d 640, 642
(App. Div. 1989) (same).
¶30 Although the issue of whether the provision of security
services is a nondelegable duty is one of first impression, the Utah
11. Some states, including Texas, apply the inherently dangerous
activity doctrine as a means of determining whether a duty is
nondelegable, rather than as a stand‐alone exception to the general
rule of nonliability.
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Castellanos v. Tommy John, LLC
Supreme Court has considered whether the scope of the duty to
keep business premises reasonably safe includes the provision of
security services. In Gray v. Scott, 565 P.2d 76 (Utah 1977), the
plaintiff sued the owner of a lodge for the wrongful death of his
son, who was shot during a New Year’s Eve party by another
patron. Id. at 76. Two days before the shooting, the victim had
engaged in a scuffle with the shooter at the lodge. Id. After the
manager of the lodge intervened, the victim departed. Id. The
manager learned later that evening that there had been a shooting
in the alley near the lodge. Id. at 76–77. In addition, approximately
six months before the New Year’s Eve party, there had been an
unrelated incident during which one member of the lodge shot
another member in the leg during a card game. Id. at 77.
Nevertheless, the officers of the lodge did not consider it necessary
to provide security guards to police their social functions. Id.
¶31 The plaintiff sued on a theory of negligence, alleging that,
based on the scuffle, shooting, and earlier unrelated shooting
incident, the manager should have made efforts to learn the
identity of the parties involved in the recent incident and to
provide security to protect the victim at the subsequent New Year’s
Eve party. Id. at 77–78. The jury entered a verdict in favor of the
lodge owner. Id. at 76. The plaintiff appealed, claiming that the jury
should have been instructed that the lodge owner “had the duty to
anticipate danger which is reasonably foreseeable and to take all
precautions for the protection of their guests, which reasonable
prudence and ordinary care would suggest.” Id. at 77.
¶32 Relying on section 344 of the Restatement (Second) of Torts,
the Utah Supreme Court rejected the plaintiff’s argument. Id. at 78.
Instead, the court explained, the duty of a possessor of land to
protect its patrons from the “accidental, negligent, or intentionally
harmful acts of third persons” is limited by comment f to section
344. Id. (citation and internal quotation marks omitted). That
comment emphasizes that the possessor of land is not a guarantor
of the visitor’s safety and that the duty to exercise due care does
not arise “‘until [the landowner] knows or has reason to know that
the acts of the third person are occurring, or are about to occur.’”
See id. (quoting Restatement (Second) of Torts § 344 cmt. f (1965)).
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Castellanos v. Tommy John, LLC
In Gray, the supreme court held that the facts did not establish that
the lodge owner knew or had a reason to know that violence would
occur at the New Year’s Eve party. Id. Accordingly, it concluded
that the trial court did not err when it instructed the jury that the
lodge owner had no duty to anticipate that a crime would occur
and to act on that belief. Id. at 78–79; see also Steffensen v. Smith’s
Mgmt. Corp., 862 P.2d 1342, 1345 (Utah 1993) (holding that a
storekeeper has no duty under section 344 to protect customers
from a fleeing shoplifter “until the storekeeper knows or should
know that a criminal act (like shoplifting) is likely to occur which
might imperil the safety of customers”); Dwiggins v. Morgan
Jewelers, 811 P.2d 182, 182–83 (Utah 1991) (holding that the owner
of a jewelry store was not liable for injuries suffered by the plaintiff
who was struck with a crowbar during a robbery that occurred
while she was shopping at the store, and stating that the duty
described in section 344 “exists in Utah, but . . . does not arise until
the business owner knows, or should know, that criminal acts are
likely to occur”).
¶33 While Gray did not involve an intentional tort committed by
an employee of an independent‐contractor security company, it
suggests that the Utah Supreme Court did not intend to limit
premises liability to conditions on the land. However, before the
owner can be liable for the intentional acts of third parties inflicted
on the owner’s patrons, the owner must know or have reason to
know that such acts are likely to occur. This same limitation has
been applied by the Utah Supreme Court in determining the
liability of a store owner for the acts of its independent contractor.
¶34 In Pagan v. Thrift City, Inc., 460 P.2d 832 (Utah 1969), a store
owner hired an independent contractor to operate a merry‐goround
on its parking lot. Id. at 833. The store owner did not direct
or control the operation of the merry‐go‐round. Id. A mother was
injured while trying to rescue her unconscious child from the
merry‐go‐round, and she sued the store owner. Id. After the district
court granted summary judgment in favor of the store owner, the
mother appealed. The supreme court explained,
20120599‐CA 23 2014 UT App 48
Castellanos v. Tommy John, LLC
A possessor of land who holds it open to the public
for business purposes is subject to liability for
injuries to members of the public where harm is
caused by negligent or intentional acts of third
persons provided the possessor of the land failed to
exercise reasonable care to discover that such acts are
being done or likely to be done, or to give a warning
adequate to enable visitors to avoid harm.
Id. at 834. Because there was no evidence presented that the merrygo‐
round was being operated in a negligent manner or that its
operation presented a hazardous situation which might cause harm
to a member of the public, the supreme court upheld the summary
judgment in favor of the store owner. Id. (citing Restatement
(Second) of Torts § 344 (1965)).
¶35 Based on these Utah decisions, a preliminary question here
is whether Tommy John knew or had any reason to know that the
security guards hired by Thor Staffing might intentionally attack
its patrons. Because Tommy John hired Thor Staffing, it is apparent
that Tommy John anticipated the possibility that patrons might
create a risk of harm to other patrons or property. But that is not
the conduct that caused Castellanos’s injuries. He alleged that he
was injured by the intentional acts of the security guards employed
by Thor Staffing, not by another patron. See Schreiber v. Camm, 848
F. Supp. 1170, 1177 (D.N.J. 1994) (distinguishing between injuries
caused by another patron and injuries inflicted by an independent
security guard).
¶36 In his complaint, Castellanos alleged that “Tommy John
knew or should have known that security guards under its
supervision, had a propensity to commit the type of acts
complained of herein.” But he points us to no evidence that
supports that allegation. To establish that Tommy John had a duty
to keep its patrons safe from the acts of Thor Staffing’s security
guards, Castellanos bore the burden to establish that Tommy John
knew or had reason to know that its patrons were at risk of
physical injury from the security guards’ intentional acts. At the
summary judgment stage, Castellanos could not rest merely on the
20120599‐CA 24 2014 UT App 48
Castellanos v. Tommy John, LLC
allegations in his complaint. See Orvis v. Johnson, 2008 UT 2, ¶ 18,
177 P.3d 600 (explaining that after a party moving for summary
judgment shows that there is no genuine issue of material fact, the
burden shifts to the nonmoving party “who may not rest upon the
mere allegations or denials of the pleadings, but must set forth
specific facts showing that there is a genuine issue for trial”
(citation and internal quotation marks omitted)). Without some
evidence that Tommy John knew or had reason to know that the
security guards were likely to commit intentional torts on patrons
of the establishment, the district court properly granted summary
judgment in favor of Tommy John.
¶37 Although other jurisdictions have held that the provision of
responsible security personnel, once undertaken, is a nondelegable
duty, we are not convinced that this approach is consistent with
Utah law absent some knowledge on the part of the premises
owner. As the Texas court noted, the plaintiff is not without a
remedy, because he has a direct liability claim against the owner if
the owner negligently hired the security company. See Fifth Club,
Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006). Where the owner
acted reasonably in hiring an independent‐contractor security
company and had no prior knowledge that the security company’s
employees were committing intentional torts against its patrons,
we see no reason to expand the nondelegable duty exception to the
nonliability rule for independent contractors.
¶38 Many charities, schools, and business establishments
routinely hire off‐duty police officers or independent‐contractor
security companies to maintain the peace at their businesses or
during special events. In addition to protecting their own property,
the provision of security services protects innocent patrons from
the inappropriate behavior of others. We can think of no reason to
discourage this practice by eroding the nonliability rule.
Furthermore, it is unlikely that these employers are in a better
position to provide security services themselves than the
independent‐contractor security company they would hire.
Consequently, to the extent such services are provided, it may be
best to encourage that persons or businesses with security
experience be retained to do so.
20120599‐CA 25 2014 UT App 48
Castellanos v. Tommy John, LLC
¶39 We are also mindful that the Utah Legislature has not
characterized security work as inherently dangerous or carved out
an exception holding business owners or employers liable for the
conduct of their independent‐contractor security personnel. See id.
(noting that nondelegable duties may be statutorily imposed).
Rather, Utah has a statutory scheme that governs security work
and requires licensure to engage in the practice of a contract
security company. Utah Code Ann. § 58‐63‐301(1) (LexisNexis
2012). See generally id. §§ 58‐63‐101 to ‐601 (LexisNexis 2012 & Supp.
2013) (the Security Personnel Licensing Act). Utah law also requires
security companies to carry liability insurance, presumably to
ensure that a security company is able to cover damages in the
event a company or one of its employees is at fault for an injury.
See id. § 58‐63‐302(1)(j)(i) (LexisNexis Supp. 2013) (requiring every
contract security company to file and maintain evidence of
comprehensive general liability insurance). In addition, the
independent‐contractor security company hires the individual
security guards and as “an employer may be held vicariously liable
for the acts of its employee if the employee is in the course and
scope of his employment at the time of the act giving rise to the
injury.” See Newman v. White Water Whirlpool, 2008 UT 79, ¶ 8, 197
P.3d 654. As a result, the independent‐contractor security company
is in the best position to prevent injury to third parties by
responsibly hiring and training its security guard employees.
¶40 We conclude that under Utah law the risk of liability for the
intentional acts of the employees of an independent‐contractor
security company falls on the security company unless the
employer of the security company retains control over the means
and methods of the security personnel’s work, see supra ¶ 9, acts
negligently in hiring the security company, see infra ¶¶ 41–42, or
has reason to know that intentional torts by the security company’s
employees are likely, see supra ¶ 33. Castellanos failed to come
forward with evidence of any of these circumstances. We therefore
conclude that the district court correctly rejected Castellanos’s
vicarious liability claims against Tommy John.
20120599‐CA 26 2014 UT App 48
Castellanos v. Tommy John, LLC
II. Negligent Hiring, Supervision, and Retention
¶41 Finally, Castellanos argues that the district court erred in
granting summary judgment on his negligent hiring claim because
disputed issues of material fact precluded the district court from
determining that Tommy John was not negligent as a matter of law.
“[S]ummary judgment is appropriate in negligence cases only in
the clearest instances.” Dwiggins v. Morgan Jewelers, 811 P.2d 182,
183 (Utah 1991). “Bare allegations of negligence unsupported by
facts, however, are insufficient to withstand a motion for summary
judgment.” Id.
To establish a claim of negligence, the plaintiff must
establish four essential elements: (1) that the
defendant owed the plaintiff a duty, (2) that the
defendant breached that duty, (3) that the breach of
duty was the proximate cause of the plaintiff’s injury,
and (4) that the plaintiff in fact suffered injuries or
damages.
Webb v. University of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906 (citation
and internal quotation marks omitted). “The tort of negligent
hiring, supervision, or retention is an exception to the general rule
‘that there is no affirmative duty to control the conduct of a third
party so as to prevent the third party from causing harm to
another.’” Tomlinson v. NCR Corp., 2013 UT App 26, ¶ 24, 296 P.3d
760 (quoting Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 41 cmt. a (2012)), cert. granted, 304 P.3d 469
(Utah 2013).
¶42 To recover under a theory of negligent hiring, supervision,
or retention, a “plaintiff must show that [the defendant] had a duty
to protect him from harm at the hands of its employees, a negligent
breach of that duty, and the harm and damages caused by that
breach.” J.H. v. West Valley City, 840 P.2d 115, 124 (Utah 1992)
(emphasis added); see also Jackson v. Righter, 891 P.2d 1387, 1392
(Utah 1995) (“In the context of a claim for negligent supervision or
retention, a duty may arise when an employer could reasonably be
expected, consistent with the practical realities of an
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Castellanos v. Tommy John, LLC
employer–employee relationship, to appreciate the threat to a plaintiff
of its employee’s actions and to act to minimize or protect against
that threat.” (emphases added)); Black’s Law Dictionary 1135 (9th
ed. 2009) (defining “negligent hiring” as “[a]n employer’s lack of
care in selecting an employee who the employer knew or should
have known was unfit for the position, thereby creating an
unreasonable risk that another person would be harmed”).
However, Castellanos points us to no authority to support the
proposition that an employer of an independent contractor may be
held liable for the negligent hiring, supervision, or retention of the
contractor’s employees.
¶43 Castellanos contends that “[t]he evidence here created at
least an inference Tommy John made an inadequate investigation
to verify that Thor[ Staffing]’s services were competent and safe for
public invitees and was therefore negligent.” In response, Tommy
John asserts that Castellanos did not plead a claim against it for
negligently hiring Thor Staffing. According to Tommy John,
Castellanos’s amended complaint only alleged that Tommy John
was negligent in hiring, supervising, and retaining the security
guards. Because Tommy John hired Thor Staffing and contracted
with it to hire and supervise the individual security guards,
Tommy John asserts it had no duty to exercise care in Thor
Staffing’s hiring or supervision of the individual security guards.
¶44 Castellanos brought a direct negligence claim against
Tommy John for negligent hiring, supervision, and retention.
Specifically, Castellanos alleged,
70. Tommy John, at all times material hereto, was the
employer of the security guards at the
[establishment] . . . and as such had the duty,
responsibility and authority to exercise supervisory
control over [the establishment] security officers.
71. Tommy John knew or should have known that
security guards under its supervision, had a propensity
to commit the type of acts complained of herein.
72. Tommy John, acting in its capacity as an employer
of the security guards negligently hired, retained, and
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Castellanos v. Tommy John, LLC
failed to train, control or terminate the [establishment]
security guards, all or some of whom possess personal
propensities and characteristics making them unfit to
serve as security guards.
73. As a direct and proximate result of the negligent,
careless and reckless acts and omissions of Tommy
John, [Castellanos] has suffered and will continue to
suffer the injuries and damages set forth in each of
the preceding Counts of this Complaint.
(Emphases added.) Notably, Castellanos’s amended complaint did
not allege that Tommy John negligently hired or retained Thor
Staffing. And it is undisputed that the security guards involved in
the altercation with Castellanos were employed by Thor Staffing,
not Tommy John. Moreover, there is no indication in the
Agreement that Tommy John had supervisory authority over Thor
Staffing’s hiring practices or employees. See supra ¶¶ 2, 12. Finally,
Castellanos came forward with no facts that could establish that
Tommy John had a duty to exercise reasonable care in the hiring,
supervision, and retention of Thor Staffing’s employees.
¶45 In sum, Castellanos alleged that Tommy John negligently
hired, supervised, and retained the individual security guards, but
the undisputed facts indicate that the security guards were
employees of the independent contractor, Thor Staffing.
Accordingly, the district court correctly granted summary
judgment on Castellanos’s negligence claim because Tommy John
had no duty to exercise care in the hiring, supervision, and
retention of Thor Staffing’s employees and Castellanos did not
allege that Tommy John negligently hired Thor Staffing.

Outcome: ¶46 The district court correctly granted summary judgment on
Castellanos’s vicarious liability claims because none of the
exceptions to the nonliability rule for the acts of independent
contractors is applicable here. The district court also correctly
granted summary judgment on Castellanos’s negligent hiring,
supervision, and retention claim because Castellanos alleged only
that Tommy John was negligent in its hiring of the individual
security guards rather than its hiring of the independent contractor,
Thor Staffing.

¶47 Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: