Murrell v. Goertz

Oklahoma Court of Appeals · 1979 · Torts

597 P.2d 1223 (1979)

Updated July 23, 2026

Tortsvicarious liabilityindependent contractor vs. servantsummary judgmentrespondeat superiorservantindependent contractorright to control

Facts

Bruce Goertz was making monthly collections connected with delivery of the Daily Oklahoman when plaintiff confronted him about damage to her screen door allegedly caused by the newspaper carrier throwing papers into it. The argument ended with plaintiff slapping Goertz and Goertz striking plaintiff, allegedly causing injuries requiring treatment and hospitalization. Plaintiff alleged Goertz was the publisher's servant either by agreement or because the publisher created the apparent belief that he was its servant by allowing him to deliver papers, advertise the product, and collect accounts. The publisher relied on an affidavit from Russell Westbrook and Goertz's deposition stating that Westbrook was an independent distributor, that he hired Goertz as an independent carrier salesman, and that Goertz was responsible to Westbrook rather than to the publisher.

Issue

Whether Oklahoma Publishing Company could be held liable on the theory that Bruce Goertz was its servant rather than an independent contractor or the employee of an independent contractor. More specifically, the question was whether the summary-judgment record showed any substantial factual dispute about the publisher's right to control the physical details of Goertz's work.

Rule

Summary judgment is proper only when the record presents no substantial controversy as to material facts or issues. In distinguishing a servant from an independent contractor, the decisive test is the right to control the physical details of the work; an independent contractor performs according to his own methods and manner, free from the employer's control and direction except as to the result. If the evidence regarding status is reasonably susceptible of only one inference, the court decides the issue as a matter of law; if the facts are disputed or different reasonable inferences may be drawn, the issue is for the jury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tulsa, Red Prairie Gazette contracts with Nolan Pierce to distribute its papers in north Tulsa. Nolan hires Kara Benton to deliver papers and collect monthly payments; the Gazette sets route boundaries, requires deliveries by 6:30 a.m., and tells carriers to place papers in plastic sleeves, but Nolan alone hires, supervises, and pays Kara. During a collection visit, Kara shoves a subscriber and causes injury.

If the subscriber sues Red Prairie Gazette on a respondeat superior theory, which is the strongest argument for summary judgment in the Gazette's favor?

Explanation. The decisive test is the alleged employer's right to control the physical details of the work. General standards such as territory, deadlines, and packaging concern the result to be achieved, not the day-to-day manner of performance. Where an intermediary independently hires and supervises the worker, and the defendant lacks control over physical details, the worker is treated as an independent contractor or the employee of one, making summary judgment appropriate if no contrary evidence creates a genuine factual dispute. (Derived from Murrell v. Goertz (1979).)