Mallory v. Brigham Young University

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 27
IN THE
SUPREME COURT OF THE STATE OF UTAH
RANDALL ROY MALLORY,
Plaintiff and Appellee,
v.
BRIGHAM YOUNG UNIVERSITY, a Utah nonprofit corp.,
SARAH ROBINSON, and Does I-X,
Defendants and Appellants.
No. 20120799
Filed July 8, 2014
On Certiorari to the Utah Court of Appeals
Fourth District, Provo Dep’t
The Honorable Claudia Laycock
No. 090403834
Attorneys:
Curtis L. Wenger, Salt Lake City, for plaintiff
Steven M. Sandberg, Provo, for defendants
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, and ASSOCIATE CHIEF JUSTICE NEHRING,
joined.
JUDGE STONE filed a dissenting opinion, in which JUSTICE PARRISH
joined.
Having recused himself, Justice Lee does not participate herein,
District Judge Andrew H. Stone sat.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 This case concerns the interpretation and application of the
term “Employee” in Utah’s Governmental Immunity Act (Act).
See UTAH CODE §§ 63G-7-101 to -904. Under the Act, plaintiffs who
have a claim against a governmental employee for acts committed
during the performance of the employee’s duties must file a notice
of claim within one year after the claim arises, or the claim is barred.
Id. §§ 63G-7-401(2), -402. In this case, Randall Roy Mallory was
injured in a motorcycle accident while leaving a Brigham Young
University (BYU) parking lot. He filed a complaint against BYU and
MALLORY v. BRIGHAM YOUNG UNIVERSITY
Opinion of the Court
its traffic cadet, Sarah Robinson (together, BYU Defendants),1 for
allegedly causing the injuries he sustained in that accident. In the
district court, the BYU Defendants maintained that, at the time of the
collision, they were “Employees” of Provo City as defined in the Act.
They further argued that because Mr. Mallory failed to file a timely
notice of claim with Provo City, his lawsuit was barred. The district
court agreed with BYU on both points and consequently dismissed
Mr. Mallory’s complaint for lack of subject matter jurisdiction.
Mr. Mallory timely appealed to the court of appeals, which reversed
the district court, holding that dismissal was premature given
insufficient evidence that the BYU Defendants were “Employees”
under the Act. BYU then filed a petition for writ of certiorari with
this court, which we granted.
¶2 We address two issues. The first is whether the court of
appeals erred in its construction of the Act’s statutory definition of
“Employee,”2 and the second is whether the court of appeals erred
in reversing the district court’s order of dismissal as premature. We
conclude that the court of appeals erred both in interpreting the
statutory definition of Employee and in reversing the trial court’s
dismissal. Accordingly, we reverse and reinstate the district court’s
order dismissing Mr. Mallory’s claims for lack of subject matter
jurisdiction.
BACKGROUND
¶3 On April 12, 2008, roughly 16,700 people attended BYU’s
spring football scrimmage at LaVell Edwards Stadium in Provo,
Utah. Following the game, Ms. Robinson, a BYU traffic cadet, was
directing traffic under the supervision of a BYU peace officer. A
Provo City ordinance allows a university’s nonpeace officer
employees to “direct traffic on public streets while under the
1
Like the court of appeals, we treat these two defendants as one
for purposes of our analysis on appeal. We do so because BYU is a
corporation and can thus “only act through [its] agents, be they
officers or employees.” Orlob v. Wasatch Mgmt., 2001 UT App 287,
¶ 18, 33 P.3d 1078 (internal quotation marks omitted). Because
Ms. Robinson’s actions as a traffic cadet were within the scope of her
employment by BYU, her actions and the actions of BYU are one and
the same. Therefore, the following analysis is equally applicable to
both.
2
When referencing the statutory definition of Employee in the
Act, we use “Employee.” When referencing other meanings of the
term, we use “employee.”
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Opinion of the Court
supervision of a peace officer employed by the same . . . university
. . . to aid in the orderly movement of traffic related to public
gatherings in excess of 5,000 people.” PROVO, UTAH, CODE
§ 9.10.060(2)–(3). At the time of the accident, Ms. Robinson was
stationed at the stadium’s west exit to facilitate the exodus of
motorists onto University Avenue—the public thoroughfare
adjacent to the parking lot. During this time, Ms. Robinson was in
continuous radio contact with her supervising peace officer. While
Ms. Robinson was directing traffic, Mr. Mallory drove his
motorcycle from the stadium parking lot onto University Avenue
and collided with another vehicle. Mr. Mallory suffered serious
bodily injury and incurred economic damages as a result of the
collision.
¶4 In February of the following year, Mr. Mallory filed a
complaint alleging that the BYU Defendants, among others,
negligently caused Mr. Mallory’s collision and were therefore liable
for damages. Mr. Mallory later amended his complaint and the BYU
Defendants responded with a timely answer. In their answer, the
BYU Defendants asserted that Mr. Mallory’s claims were barred by
the Act because at the time of the accident, Ms. Robinson was an
agent (and therefore an Employee) of Provo City and that
Mr. Mallory was thus required—but had failed—to file a notice with
Provo City within one year of when his claim arose.
¶5 The BYU Defendants subsequently filed a motion to
dismiss, again asserting that Mr. Mallory’s claims were barred
because he had failed to file a timely notice of claim as required by
the Act. The trial court granted the BYU Defendants’ motion,
holding that because the BYU Defendants were agents of Provo City,
they also qualified as its Employees under the Act. As a result, the
court ruled that Mr. Mallory’s failure to file a timely notice of claim
stripped the court of subject matter jurisdiction. The trial court
entered a final judgment dismissing all claims against the BYU
Defendants, and Mr. Mallory appealed.
¶6 On review, the Utah Court of Appeals disagreed with the
BYU Defendants’ assertion that because they were Provo City’s
agents, they were automatically its Employees. The court of appeals
based its conclusion primarily on the fact that the term “agents” is
not listed in the Act’s definition of Employee. Mallory v. Brigham
Young Univ., 2012 UT App 242, ¶ 32, 285 P.3d 1230. The court
concluded that “the omission of ‘agents’ suggest[s] that the Utah
Legislature was aware of the imprecision in the use of the term
‘agent’ and carefully selected language designed to limit immunity
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Opinion of the Court
to those relationships where the governmental entity exercises
control” over the actor sufficient to qualify the actor as the
government’s servant.3 Id. ¶ 34 (emphasis added). Additionally, the
court of appeals ruled that the district court dismissed the case
prematurely because the record provided “no information about the
control, if any, exercised by Provo City over the manner in which [the
BYU] Defendants performed traffic control activities.” Id. ¶ 38
(emphasis added). “As a result,” the court held, “there is insufficient
evidence to establish whether [the BYU] Defendants were acting as
Employees of Provo City.” Id. In light of that ruling, the court of
appeals remanded the case for further proceedings. Id. ¶ 44.
STANDARD OF REVIEW
¶7 “We review the court of appeals’[] interpretation of a statute
for correctness and give no deference to its conclusions of law.” State
v. Ostler, 2001 UT 68, ¶ 5, 31 P.3d 528.
¶8 With regard to the motion to dismiss, “we review the court
of appeals’ decision for correctness, focusing on whether that court
correctly reviewed the [district] court’s decision under the
appropriate standard of review.” Medved v. Glenn, 2005 UT 77, ¶ 8,
125 P.3d 913 (alteration in original) (internal quotation marks
omitted). “Jurisdictional questions, such as subject matter
jurisdiction, are reviewed for correctness.” Canfield v. Layton City,
2005 UT 60, ¶ 10, 122 P.3d 622.
ANALYSIS
I. THE COURT OF APPEALS ERRED IN ITS CONSTRUCTION
OF “EMPLOYEE” UNDER THE ACT
¶9 The Act “governs all claims against governmental entities
or against their [E]mployees or agents arising out of the performance
of the [E]mployee’s duties, within the scope of employment, or
under color of authority.” UTAH CODE § 63G-7-101(2)(b).4 The Act
in turn defines “Employee” as a class of persons that “includes . . . a
governmental entity’s officers, employees, servants, trustees, or
commissioners” along with nine other specific—but wide-
ranging—groups of persons, including tutors, authorized student
3
The term “servants” is one of the expressly included classes in
the Act’s definition of “Employee.” UTAH CODE § 63G-7-102(2)(a)(i).
4
The Act defines a “claim” as “any asserted demand . . . or cause
of action . . . whether arising . . . against a governmental entity or
against an [E]mployee in the [E]mployee’s personal capacity.” Id.
§ 63G-7-102(1).
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Opinion of the Court
teachers, members of governing bodies, volunteers, and educational
aides. Id. § 63G-7-102(2)(a) (emphasis added). Only one discrete
group—independent contractors—is categorically excluded from the
statutory definition of Employee. Id. § 63G-7-102(2)(c).
¶10 The BYU Defendants urge us to interpret the Act’s
definition of Employee to include all authorized agents of a
governmental entity except those that are independent contractors.
The BYU Defendants acknowledge that the Act does not explicitly
include the term “agent” in its statutory definition of Employee, but
argue that this omission does not connote the legislature’s intent to
restrict Employee status to only those enumerated categories.
Instead, the BYU Defendants argue that the legislature’s decision to
define Employee by describing what that term “includes,”—rather
than declaring what it “means”—demonstrates the legislature’s
intent to provide illustrative, but nonexhaustive, examples of
Employee status under the Act. Additionally, the BYU Defendants
assert that each of the enumerated classes in the statute—including
independent contractors—are agents of a governmental entity when
performing a governmental function. The BYU Defendants argue,
therefore, that the legislature intended Employee to include all
agents of a governmental entity except those agents that are
independent contractors.
¶11 The court of appeals disagreed with the BYU Defendants’
interpretation. The court argued that it could not lightly assume that
the legislature simply “overlooked ‘agents’ when listing examples
of governmental Employees.” Mallory v. Brigham Young Univ., 2012
UT App 242, ¶ 21, 285 P.3d 1230. The court went on to explain that
the term agent is “susceptible to both a broad and narrow meaning,”
the broad meaning characterized by a relationship where the agent
has “significant discretion,” and the narrow one characterized by a
relationship where the “principal maintains strict control.” Id. ¶ 24.
The court of appeals reasoned that the legislature’s omission of the
word “agent” acted as a disavowal of the potentially broad meaning
of “agent,” in light of the legislature’s purposeful inclusion of the
terms “employee” and “servant”—which connote stricter
control—but exclusion of “independent contractor,” which connotes
less control. In other words, the court of appeals concluded that the
structure of the Act’s definition of Employee evinced the
legislature’s intent to “narrow[] the applicability of the [Act’s]
individual immunity to a subset of the more expansive definition of
agent”— specifically to that subset over which the governmental
entity “can exercise the level of control to create a servant or
employee relationship.” Id. ¶ 27.
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MALLORY v. BRIGHAM YOUNG UNIVERSITY
Opinion of the Court
¶12 We agree with the court of appeals that Employee includes
some, but not all, agents as that term is broadly interpreted. That
much is clear from the language of the statute expressly excluding
those agents that also qualify as independent contractors. See UTAH
CODE § 63G-7-102(2)(c). But we disagree with the court of appeals’
conclusion that a governmental agent who (1) is not an independent
contractor, but (2) does not fit neatly into one of the statutorily listed
categories of Employees, must “be sufficiently under the control of
the governmental entity to qualify as its servant” in order to enjoy
Employee status under the Act. Mallory, 2012 UT App 242, ¶ 29.
A. The Word “Includes” Is Nonexclusive
¶13 “When interpreting statutory language, our primary task is
to give effect to the intent of the legislature.” Turner v. Staker &
Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600. “[W]e determine the
statute’s meaning by first looking to the statute’s plain
language . . . .” State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667
(internal quotation marks omitted). In doing so, we seek to “render
all parts [of the statute] relevant and meaningful,” Millett v. Clark
Clinic Corp., 609 P.2d 934, 936 (Utah 1980), “avoid[ing] an
interpretation which renders portions of, or words in, a statute
superfluous or inoperative,” Platts v. Parents Helping Parents, 947
P.2d 658, 662 (Utah 1997). Additionally, “[w]hen examining the
statutory language we assume the legislature used each term
advisedly and in accordance with its ordinary meaning.” Provo City
v. Ivie, 2008 UT App 287, ¶ 4, 191 P.3d 841 (internal quotation marks
omitted).
¶14 Utah Code section 68-3-12(1)(f) declares that when any
statute uses the word “includes,” it “means that the items listed are
not an exclusive list, unless the word ‘only’ or similar language is
used to expressly indicate that the list is an exclusive list.” See also
Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 (“When
‘including’ precedes a list, its common usage is to indicate a partial
list.”). Section 68-3-12(1)(a) further mandates that this rule of
construction “shall be observed, unless the construction would be:
(i) inconsistent with the manifest intent of the Legislature; or
(ii) repugnant to the context of the statute.”
¶15 We begin by noting that the Act contains no express
language indicating that the list of persons who qualify as
Employees under the Act is exclusive. And as discussed below, we
find that applying the statutory meaning of “includes” to Utah Code
section 63G-7-102(2)(a) yields results neither inconsistent with the
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intent of the legislature (as derived from its plain language), nor
repugnant to its context.
¶16 We agree with the court of appeals that the legislature “was
aware of the imprecision in the use of the term ‘agent’ and carefully
selected language” to clarify, to the extent possible, the intended
scope of the definition. Mallory, 2012 UT App 242, ¶ 34. But we
disagree that the legislature’s omission of “agent” in section
63G-7-102(2)(a) necessarily implies that a person or entity that does
not fit into one of subsection (2)(a)’s enumerated categories “must be
sufficiently under the control of the governmental entity to qualify
as its servant” in order to be an Employee under the Act. Id. ¶ 29
(emphasis added). While the court of appeals’ interpretation offers
a plausible explanation for the legislature’s omission of the word
“agent,” we ultimately reject it because it nullifies the statutorily
mandated meaning of the word “including.” Specifically, this
interpretation would require persons or entities who do not fit the
enumerated categories to shoehorn their relationship with the
governmental entity into that of a “servant” (one of the already-
listed categories of Employees) in order to establish Employee
status. Such a requirement would effectively render section 63G-7-
102(2)(a) an exhaustive list rather than a partial one; it would
foreclose the possibility—clearly contemplated by the statute’s use
of the word “includes”— that a governmental entity’s agent could
be its Employee without fitting neatly into one of the listed
categories of subsection (2)(a).
¶17 Accordingly, we overrule the court of appeals’ finding that
“to be individually protected by the [Act], the agent must be
sufficiently under the control of the governmental entity to qualify
as its servant,” if that agent does not fall into one of the other
specifically listed categories. Mallory, 2012 UT App 242, ¶ 29. In so
doing, we hold only that the language of the statute supports the
conclusion that Employee status can extend to governmental agents
that are neither servants, independent contractors, nor any of the
other explicitly listed classes.5
5
We decline, however, to specifically identify which agents may
fall into this category because, as described below, this
determination is unnecessary to the outcome of this case. See Goebel
v. Salt Lake City S. R.R., 2004 UT 80, ¶ 33, 104 P.3d 1185 (“We
generally do not decide issues unnecessary to the outcome of the
case . . . .”). We do, however, acknowledge not only the complex
interplay between the common law statuses of agent, servant,
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Opinion of the Court
II. THE BYU DEFENDANTS QUALIFY AS
“EMPLOYEES” UNDER THE ACT
¶19 We now examine whether the court of appeals erred in
reversing the trial court’s order granting BYU Defendants’ motion
to dismiss. Because we find that the BYU Defendants were servants,
and therefore Employees, of Provo City, we reverse.
¶20 As noted above, the district court premised its dismissal
upon the determination that the BYU Defendants were servants of
Provo City and therefore Employees under the Act. Accordingly, the
court held that it lacked subject matter jurisdiction because Mr.
Mallory had failed to file a timely notice of claim with Provo City.
On review, the Utah Court of Appeals ruled that the trial court’s
decision was premature, Mallory v. Brigham Young Univ., 2012 UT
App 242, ¶ 39, 285 P.3d 1230, because the record was “insufficient
to show whether Defendants were acting as servants . . . of Provo
City, and were therefore Employees covered by the [Act].” Id. ¶ 38.
The court found the record particularly lacking on the question of
how much control Provo City had actually exercised over the BYU
Defendants in relation to their governmental function of traffic
control. Id. (“[T]he record does not establish whether Provo City had
any role in developing BYU’s traffic direction program, provided
any oversight of that program, or imposed requirements for the
hiring, training, or supervision of cadets.”) We disagree with respect
to the sufficiency of the record and conclude that based on the
evidence presented to the trial court, the BYU Defendants were
servants of Provo City and therefore entitled to Employee status
under Utah Code section 63G-7-102(2)(a)(i). Accordingly, the trial
court properly dismissed Mr. Mallory’s claims because he failed to
file a timely notice of claim with Provo City. See UTAH CODE §§ 63G-
7-401(2), -402.
A. Right to Control Is Sufficient to Establish a
Master-Servant Relationship
¶21 “A servant is an agent employed by a master to perform
service in his affairs whose physical conduct in the performance of
5
(...continued)
employee, and independent contractor, but also the rather confusing
statutory structure of Utah Code section 63G-7-102(2). It would be
helpful for the legislature to address the issue of which
governmental agents, if any, are covered by the Act’s definition of
Employee when such agents do not fit within one of the Act’s listed
categories.
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the service is controlled or is subject to the right to control by the
master.” RESTATEMENT (SECOND) OF AGENCY § 2(2) (1958); see also
BLACK’S LAW DICTIONARY 1491 (9th ed. 2009) (defining “servant” as
“a person who, by contract or operation of law, is for a limited
period subject to the authority or control of another person in a
particular trade, business or occupation” (internal quotation marks
omitted)). A master-servant relationship exists “if the [principal]
controls, or has the right [to] control, the manner in which the
operations are to be carried out.” Foster v. Steed, 432 P.2d 60, 62 (Utah
1967).
It is important to distinguish between a servant and an
agent who is not a servant . . . . The important
distinction is between service in which the actor’s
physical activities and [his or her] time are surrendered
to the control of the master, and service under an
agreement to accomplish results or to use care and skill
in accomplishing results.
Dowsett v. Dowsett, 207 P.2d 809, 811 (Utah 1949). Because a master-
servant relationship cannot “be defined in general terms with
substantial accuracy,” courts commonly look to several factors in
determining whether such relationship exists. RESTATEMENT
(SECOND) OF AGENCY § 220 cmt. c (1958). Hallmarks of a master-
servant relationship include the “right to discharge” the alleged
servant, the “nature of [the] work” performed, and whether the
relationship is “for a definite piece of work.” Intermountain
Speedways, Inc. v. Indus. Comm’n, 126 P.2d 22, 24 (Utah 1942). Of
paramount importance in this determination, however, is the
principal’s right to control the “means and method of performance.”
Id.6 If the principal has the right to control the agent’s method and
6
Utah courts have long held, in a variety of contexts, that the
“right to control,” is the essential hallmark of a master-servant
relationship. E.g., Averett v. Grange, 909 P.2d 246, 249 (Utah 1995);
Foster, 432 P.2d at 62 (tort case holding that “if the defendant
controls, or has the right [to] control, the manner in which the
operations are to be carried out, the defendant is liable as a master”)
(emphasis added)); Christean v. Indus. Comm’n, 196 P.2d 502, 507
(Utah 1948) (worker’s compensation case holding that the right to
control is determinative and “the fact that [the master] fails to
exercise [that right] is of no importance”); Utah Fire Clay Co. v. Indus.
Comm’n, 40 P.2d 183, 187 (Utah 1935) (worker’s compensation case
holding that “[t]he distinguishing criterion is the right to control”);
(continued...)
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Opinion of the Court
manner of performance, that agent is a servant whether or not the
right is specifically exercised. But if agents rendering service retain
the right to control the manner in which it is performed, those agents
are not servants. See Dowsett, 207 P.2d at 811 (“Those rendering
service but retaining control over the manner of doing it are not
servants.” (emphasis omitted)).7
B. Provo City Has the Legal Right to Control the BYU Defendants
¶22 In light of this well established standard for determining the
existence of a master-servant relationship, we hold that the BYU
Defendants were servants—and therefore Employees—of Provo City
because the city retained the right to control the manner in which the
BYU Defendants directed traffic. Support for this determination
6
(...continued)
Tasters Ltd. v. Dep’t of Emp’t Sec., 819 P.2d 361, 366 (Utah Ct. App.
1991) (employment benefits case emphasizing that the “‘right to
control’ has historically been an integral element” of the
master–servant relationship under the Utah Employment Security
Act); BLACK’S LAW DICTIONARY 1402 (9th ed. 2009) (stating that “[a]t
common law, the [employee-employer] relationship was termed
‘master-servant,’” and defining the master-servant relationship as
“[t]he association between one in authority and a subordinate,
esp[ecially] between an employer and an employee”). We note that
in most of these cases the court was examining the distinction
between an employee and an independent contractor. While this
question is slightly different from the one we address today, we
nevertheless find these cases persuasive in light of the historical
understanding that the employer-employee relationship is the
quintessential example of a master-servant relationship.
7
We disagree with the dissent’s assertion that the factors
enunciated in Averett v. Grange, 909 P.2d 246, 249 (Utah
1995)—including, importantly, the consideration of any covenants
or agreements that exist concerning the right to control—are
generally applicable outside the workers’ compensation context. We
read Averett to explicitly limit mandatory consideration of these
factors to the context of workers’ compensation. Id. (explaining that
the Averett factors, which inform the distinction between employees
and independent contractors, were created “for purposes of the
Workers’ Compensation Act”). Thus, while these factors may inform
our analysis of the employee versus independent contractor
distinction in the Governmental Immunity Act context, we certainly
are not bound by them, and the absence of any one of the factors is
not fatal to our ultimate conclusion.
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comes from the Provo City Code, which strictly regulates the
circumstances under which the BYU Defendants may perform the
city’s nondelegable duty of traffic control, and contains several
additional controls over the direction of traffic by nonpeace officers,
including the city’s ability to terminate the BYU Defendants’ service
at any time.8
¶23 Provo City has adopted an ordinance under which “a
person who is employed by a college or university and is not a peace
officer may direct traffic on public streets while under the
supervision of a peace officer employed by the same college or
university.”9 PROVO, UTAH, CODE § 9.10.060(2).10 However, the
ordinance restricts the engagement of nonpeace officers to the
8
The dissent suggests that the sine qua non of an employer-
employee relationship is a contractual agreement, either oral or
written, that sets forth the terms of the relationship and the
employer’s right to control the employee. Infra ¶¶ 41–42 (concluding
that the absence of an “oral or written” agreement creates a “gap in
the evidence regarding the pivotal issues of the creation and
existence of BYU’s relationship with Provo City vis-à-vis the
provision of traffic control” and arguing that the majority relies on
the “flawed premise[] that the ordinance, rather than an actual
agreement” is the source of Provo’s authority to control the manner
of traffic control). But the dissent does not explain why the key
distinction between a servant and an independent contractor—i.e.,
the right to control the physical manner in which the work is
performed—cannot just as easily be established by the text of a city
ordinance as it can by the language of a contract. See infra ¶ 37. An
ordinance can establish this right to control, and, as described below,
the Provo City ordinance does grant the city the right to control the
physical manner in which traffic control is performed.
9
“Peace officers” include “law enforcement officers” under Utah
Code section 53-13-102, and “’[l]aw enforcement officer’ specifically
includes . . . members of a law enforcement agency established by a
private college or university provided that the college or university
has been certified by the commissioner of public safety according to
the rules of the Department of Public Safety.” UTAH CODE
§ 53-13-103(b)(xi). BYU’s University Police is a law enforcement
agency certified by the commissioner of public safety as required by
this statute.
10
This ordinance was enacted pursuant to Utah’s Traffic Code,
which allows municipalities to adopt “additional traffic ordinances
not in conflict with” state law. UTAH CODE § 41-6a-207(3).
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narrow circumstance of “public emergency or to aid in the orderly
movement of traffic related to public gatherings in excess of 5,000
people.” Id. § 9.10.060(3). Moreover, the ordinance grants the Provo
chief of police “full power, at any time, to suspend any subordinate
officer, or employee, person or agents.” Id. § 9.01.050(1).
¶24 The relationship between Provo City and the BYU
Defendants, acting pursuant to the Provo City ordinance, exhibits
the hallmarks of a master-servant relationship. As noted above, the
paramount consideration in the master-servant analysis is the “right
to control” the manner in which the servant performs its duties.
Here, the ordinance controls and limits the manner in which BYU
may utilize non-peace officers when directing traffic on Provo’s
public streets.11 First, the ordinance requires non-officers to be
11
The dissent emphasizes the fact that the ordinance is
nonbinding to support its conclusion that no contract existed
between Provo and the BYU Defendants with respect to traffic
control duties. Infra ¶ 41 (noting that the “Provo City ordinance is
permissive and does not bind anyone to act; it has no effect unless
BYU agrees to provide traffic control”). As stated in footnote 8
above, a binding written or oral contract is not necessary to establish
a master’s right to control; an ordinance can accomplish the same
result. But even if it were necessary to establish the existence a
contract, this court has held that the existence of a contract
modifying employment relationships can be established (or implied
in fact) by the conduct of the parties, if such conduct “meet[s] the
standards of a unilateral offer and acceptance.” Hodgson v. Bunzl
Utah, Inc., 844 P.2d 331, 334 (Utah 1992). Unilateral offers are by
definition nonbinding in that the offeree is not bound to perform if
he or she chooses not to. But a unilateral offer’s nonbinding nature
has no bearing on whether a contract exists postacceptance. A
unilateral contract is established if and when the offeree begins
substantial performance. The ordinance in this case is like a
unilateral offer, which the BYU Defendants accepted by performing
traffic control pursuant to the terms of the ordinance. Thus, that the
ordinance is nonbinding is irrelevant to the determination of
whether a “meeting of the minds” existed between the parties with
respect to traffic control on the date in question, after the BYU
Defendants had undertaken to perform traffic control. See infra ¶ 39
(stating that “a meeting of the minds must exist between the parties”
for an agency relationship to exist (internal quotation marks
omitted)). In this case, a “meeting of the minds” was indeed
(continued...)
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supervised by a state-certified peace officer who can exercise peace
officer powers. PROVO, UTAH CODE § 9.10.060(2); see also UTAH CODE
§ 53-6-205(1)(b).12 Provo City’s ordinance-mandated supervision
requirement means that BYU is not free to direct traffic in any
manner that it chooses. For example, BYU may not employ
unsupervised traffic cadets, nor may BYU allow traffic cadets to
supervise each other.
¶25 Second, the Provo City ordinance controls the circumstances
under which the BYU Defendants are allowed to direct traffic,
narrowing that authority to times of “public emergency” or where
necessary “to aid in the orderly movement of traffic related to public
gatherings in excess of 5,000 people.” PROVO, UTAH, CODE
§ 9.10.060(3). Thus, the BYU Defendants may direct traffic only when
these conditions are present, and consequently do not retain
wholesale control over when and where they can direct traffic on
Provo City’s public streets.
¶26 Third, Provo City ordinance grants the Provo chief of police
“full power, at any time, to suspend any subordinate officer, or
employee, person or agents, in the Police Department.” Id.
§ 9.01.050(1). Accordingly, Provo City retained the right to discharge
the BYU Defendants—as agents of the Police Department— at any
time. The dissent argues that the BYU Defendants were not “in the
Police Department” and therefore not subject to the Chief’s
11
(...continued)
established when the BYU Defendants undertook traffic control
duties pursuant to the ordinance.
12
Contrary to the dissent’s assertion, it is not determinative to the
question of the BYU Defendants’ relationship whether Robinson was
supervised by a BYU police officer instead of a Provo City officer.
To exercise control over the BYU Defendants, Provo City need not
physically participate in the actual direction or training of cadets;
rather, Provo City can and does exercise control by requiring that
certain individuals with specific training perform the supervision.
For example, a business owner may exercise control over an
employee cashier by requiring the cashier to be supervised by a
manager who in turn has been properly trained—in house or
otherwise—to the owner’s satisfaction. That is the case here. Provo
City required cadets to be supervised by BYU peace officers who are
in turn required by state law to undergo training that satisfies Provo
City’s needs. This requirement is still an exercise of control, even if
supervision and training is performed by an entity other than Provo
City.
13
MALLORY v. BRIGHAM YOUNG UNIVERSITY
Opinion of the Court
suspension power. However, the language of the ordinance is
permissive (“…may direct traffic”) when granting authority to non-
officers, indicating that the BYU Defendants may conduct traffic
only at the pleasure and discretion of Provo City. Unlike an
independent contractor, the BYU Defendants do not find their
authority in contractual terms that grant them independent legal
rights under the contract. Instead, they rely only on a permissive
grant of authority in a municipal ordinance, an authority which may
be granted, modified, or revoked at the will and pleasure of the city,
with or without notice, for any or no reason. A conclusion to the
contrary—that Provo City did not have the power to fire the BYU
Defendants—would be strange indeed, given that Provo City
remains invariably responsible for the actions of its agents under the
nondelegable duty doctrine. A contrary conclusion would mean that
even if Provo City found the BYU Defendants’ traffic control
practices to be unsafe (but still legal), it could not order them to
cease and would have to simply assume all liability for what, in the
City’s view, was an unsafe practice. This conclusion is
untenable—especially in light of the purpose of the Act, which is to
protect the public fisc. Thus, Provo City surely has authority to
protect its financial resources by removing the BYU Defendants if
the city determines they are controlling traffic in manner the city
deems inappropriate.
¶27 Finally, and most importantly, we note that because the
BYU Defendants derive their authority to direct traffic exclusively
from the Provo City ordinance, Provo’s city council could, at any
time, rescind the ordinance or amend it to provide for additional
control and direction over BYU and its agents. For example, Provo
City could mandate specific uniforms for nonofficers, require
nonofficers to stand in certain places while directing traffic, or direct
the use of specific hand gestures. The “fact that [Provo City] fail[ed]
to exercise [that right] is of no importance” to the master-servant
determination. Christean, 196 P.2d at 507. What matters is the fact
that Provo City retains the right to control, by statute, every aspect
of traffic regulation on its public streets. In sum, because Provo City
has the statutory right to control and discharge the BYU Defendants
with respect to the manner, time, place, and circumstances under
which BYU Defendants direct traffic on Provo City streets, the BYU
Defendants are servants of Provo City when doing so. And as
servants of Provo City, the BYU Defendants also qualify as
Employees of Provo City under the Act.
¶28 The dissent wonders whether today’s holding would
potentially extend immunity from civil suit to “private security
14
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JUDGE STONE, dissenting
guards” and “private highway contractors’ flagpersons” by virtue
of the statutory restrictions placed upon them. Infra ¶ 44 n.2. It
would not. At most, our decision simply recognizes the possibility
that statutorily regulated individuals, if performing a governmental
function, may be “Employees” as defined in the Governmental
Immunity Act, if they act pursuant to a statute or ordinance that
asserts control over the manner in which they perform that
governmental function. The group of individuals and entities
potentially subject to such classification is small. And even if they
qualify as Employees under the Act, the ultimate question of
immunity would remain unresolved pending further analysis under
the Act’s specific requirements, including the myriad waivers of
immunity and exceptions to those waivers. See UTAH CODE § 63G-7-
301. Thus, the dissent’s implication that our holding will
automatically extend governmental immunity to a extensive array of
private actors is misplaced.
C. Smith v. Four Corners Does not Preclude Today’s Holding
¶29 Mr. Mallory argues that this court’s ruling in Smith v. Four
Corners Mental Health Center, Inc., 2003 UT 23, 70 P.3d 904, precludes
a finding that Ms. Robinson was an Employee under the Act due to
lack of sufficient evidence in the record. We disagree.
¶30 In Four Corners, a foster child brought an action against
foster parents for an alleged sexual assault perpetrated by another
foster child in the home. The foster parents argued that “their status
as employees of [the Department of Human Services (DHS)]
establishe[d] an agency relationship entitling them to immunity
under the umbrella of DHS.” Id. ¶ 22. The only evidence regarding
the relationship between DHS and the foster parents, however, was
the foster parents’ bare allegations that they were “licensed,
approved, and controlled by DHS as foster parents,” and that “DHS
placed [the foster child] in their home.” Id. ¶ 27. Importantly, the
foster parents did not allege the manner in which DHS controlled,
or had the right to control, their service as foster parents. Without
this crucial information, we ruled that “it is not possible to
distinguish as a matter of law whether the [foster parents] are
[E]mployees, who are entitled to immunity.” Id.
¶31 The facts of this case are readily distinguishable. In Four
Corners, the extent to which DHS actually controlled or had the right
to control the foster parents was impossible to discern because there
was no evidence in this regard beyond the foster parents’ mere
allegation of general control. In this case, however, the evidence
supporting Provo City’s right to control is established by more than
15
MALLORY v. BRIGHAM YOUNG UNIVERSITY
JUDGE STONE, dissenting
bare assertions made by the BYU Defendants. The Provo City Code
controls whom BYU may employ to direct traffic, when BYU may
direct traffic, and mandates that BYU traffic cadets be supervised by
a peace officer who is also an employee of BYU. PROVO, UTAH, CODE
§ 9.10.060(2). Additionally, other ordinances support the right of
Provo City to remove or control any nonofficer who is directing
traffic within the Provo City limits. See id. § 9.01.050(1). From this
evidence, as detailed above, we are able to conclude that Provo City
not only had the right to control, but also exercised some degree of
actual control over the manner, place, and time in which BYU
Defendants directed traffic. Therefore, the BYU Defendants qualify
as servants of Provo City and thus as Employees under the Act.
CONCLUSION
¶32 We hold that the court of appeals’ construction of the Act’s
statutory definition of Employee was in error. Additionally, we hold
that the BYU Defendants were servants of Provo City and therefore
statutory Employees under the Act. Consequently, Mr. Mallory’s
failure to file a timely notice of claim divested the district court of
subject matter jurisdiction over his lawsuit. We therefore reverse the
court of appeals’ decision vacating the trial court’s order of
dismissal.
JUDGE STONE, dissenting:
¶33 I respectfully dissent. Drawing all reasonable inferences
from the factual record in favor of Mr. Mallory, as is required under
a rule 12(b)(1) analysis, the facts in this case are not sufficient to
conclude that the BYU defendants qualify as “employees” under the
Utah’s Governmental Immunity Act (Act).1 To the contrary, the
evidence developed below supports an inference that BYU’s
relationship with Provo City was one of independent contractor,
thus excluding BYU from the statutory definition of employee.
1
As a procedural matter, a motion to dismiss brought under rule
12(b)(1) of the Utah Rules of Civil Procedure is governed by the
same standard of review as a rule 12(b)(6) motion. Specifically,
factual allegations are accepted as true and all reasonable inferences
to be drawn from those facts are considered in a light most favorable
to the plaintiff. See Gregory v. Shurtleff, 2013 UT 18, ¶ 8, 299 P.3d 1098;
Peterson v. Delta Air Lines, Inc., 2002 UT App 56, ¶ 2, 42 P.3d 1253.
16
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JUDGE STONE, dissenting
ANALYSIS
I. THE PROPER ANALYSIS BEGINS WITH THE ACT’S
EXCLUSION OF INDEPENDENT CONTRACTORS
FROM THE DEFINITION OF “EMPLOYEE”
¶34 First, I agree with Part I of the Court’s opinion that the
Utah Court of Appeals erred in interpreting the Act. The issue is
simply whether the BYU defendants were servants or independent
contractors. Independent contractors are expressly excluded from
the definition of “employee” under the Act; “servants” are included.
Therefore, in examining whether the court of appeals erred in
reversing the trial court’s granting of the BYU defendants’ motion
to dismiss, the proper inquiry should be whether the BYU
defendants qualify as independent contractors.
¶35 The factors relevant to an assessment of independent
contractor status and the right- to-control concept have been applied
“most frequently when deciding whether a worker was an employee
or an independent contractor for the purpose of determining
whether the Workers’ Compensation Act controlled the remedies
available to an injured party.” Dyson ex rel. Glover v. Boy Scouts of
Am., 923 P.2d 1383, 1385 (Utah 1996). However, the common law
right-to-control standard is derived from agency law, “the purpose
of which is to define the limits of a master’s vicarious liability for a
servant’s tortious conduct.” Id. (citing Bennett v. Indus. Comm’n, 726
P.2d 427, 430 n.2 (Utah 1986); RESTATEMENT (SECOND) OF AGENCY
§ 220 (1958) (outlining elements of right-to-control test)).
¶36 This court has identified several main facts which are
helpful in determining whether an employer had the right to control
an alleged employee. Averett v. Grange, 909 P.2d 246, 249 (Utah
1995). These factors include (i) “whatever covenants or agreements
exist concerning the right of direction and control over the
employee”; (ii) “the right to hire and fire”; (iii) “the method of
payment” (i.e., wages versus payment for a completed job or
project); and (iv) “the furnishing of equipment.” Id. (internal
quotation marks omitted).
¶37 Importantly, it is the right to control the physical manner
in which the work is performed that is determinative. In Dowsett v.
Dowsett, this Court emphasized that
“[a]n agent who is not subject to control as to the
manner in which he performs the acts that
constitute the execution of his agency is in a
similar relation to the principal as to such
17
MALLORY v. BRIGHAM YOUNG UNIVERSITY
JUDGE STONE, dissenting
conduct as one who agrees only to accomplish
mere physical results. For the purpose of
determining liability, they are both ‘independent
contractors’ and do not cause the person for
whom the enterprise is undertaken to be
responsible . . . .”
207 P.2d 809, 811 (Utah 1949) (emphasis omitted) (quoting
RESTATEMENT (FIRST) OF AGENCY § 220 cmt. c (1933)). This is the key
distinction between the agent who is a servant and the agent who is
an independent contractor. As the Restatement indicates:
(1) A master is a principal who employs an agent
to perform service in his affairs and who controls
or has the right to control the physical conduct of
the other in the performance of the service.
(2) A servant is an agent employed by a master
to perform service in his affairs whose physical
conduct in the performance of the service is
controlled or is subject to the right to control by
the master.
(3) An independent contractor is a person who
contracts with another to do something for him
but who is not controlled by the other nor subject
to the other’s right to control with respect to his
physical conduct in the performance of the
undertaking. He may or may not be an agent.
RESTATEMENT (SECOND) OF AGENCY § 2 (1958).
¶38 Not surprisingly, in the context of respondeat superior
liability, this court has applied a similar right- to-control test. See
Foster v. Steed, 432 P.2d 60, 63 (Utah 1967). The Foster case dealt with
the relationship between a franchisor oil company, Texaco, and its
franchisee, an operator of a service station. The court held that
“[n]one of the evidence cited by plaintiff indicates that Texaco
retained control of the [franchisee’s] day-to-day operation but,
rather, merely influenced the result to be achieved, revealing an
independent contractor status.” Id.
18
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JUDGE STONE, dissenting
II. AFTER APPLYING THE RIGHT-TO-CONTROL TEST TO THE
PROFERRED EVIDENCE, THERE IS A REASONABLE
INFERENCE THAT BYU IS AN INDEPENDENT CONTRACTOR
A. BYU’s Relationship with Provo City Is not Clearly Defined in
the Record, but Stems from a Nonbinding Ordinance
¶39 “‘[A]n agency is created and authority is actually conferred
very much as a contract is made’: a meeting of the minds must exist
between the parties.” Wardley Corp. v. Welsh, 962 P.2d 86, 89 (Utah
Ct. App. 1998) (quoting 3 AM. JUR. 2D Agency § 17 (1986)). Therefore,
the first inquiry is into the fundamental nature of the relationship
between BYU and Provo City.
¶40 In undertaking a similar analysis, the majority suggests
that the relationship between Provo City and the BYU defendants
stems from the Provo City ordinance, which provides that “a person
who is employed by a college or university and is not a peace officer
may direct traffic on public streets while under the supervision of a
peace officer employed by the same college or university.” PROVO,
UTAH, CITY CODE § 9.10.060(2). As the majority observes, this
ordinance is limited to circumstances of “public emergency or to aid
in the orderly movement of traffic related to public gatherings in
excess of 5,000 people.” Id. § 9.10.060(3).
¶41 The majority errs when it concludes, based on this
ordinance, that “[t]he relationship between Provo City and the BYU
Defendants, acting pursuant to the Provo City ordinance, exhibits
the hallmarks of a master-servant relationship.” Supra ¶ 24. The
Provo City ordinance is permissive and does not bind anyone to act;
it has no effect unless BYU agrees to provide traffic control, hire
cadets, and supervise them. While the Provo City ordinance would
have facilitated this agreement, there is nothing in the record
regarding the operative terms of this agreement or even whether it
was oral or written. Thus, there exists a gap in the evidence
regarding the pivotal issues of the creation and existence of BYU’s
relationship with Provo City vis-à-vis the provision of traffic control.
The majority does not address this gap in evidence, but instead too
narrowly focuses on the ordinance alone as defining these parties’
relationship when it is merely one aspect of the relationship. As a
corollary, Ms. Robinson’s actions as traffic cadet stem from and are
influenced by the relationship between BYU and Provo City, but her
actual authority is derived from her employment by BYU, the terms
of which are not in the record. Because the ordinance expressly
requires that she be an employee of BYU, she cannot have greater
status, vis-à-vis Provo, than BYU. Cf. Luker Sand & Gravel Co. v.
19
MALLORY v. BRIGHAM YOUNG UNIVERSITY
JUDGE STONE, dissenting
Indus. Comm’n, 23 P.2d 225, 227 (Utah 1933) (“In no event could
Osment’s relationship to the Sand & Gravel Company be more
intimate than that of Hobbs himself.”).
¶42 The majority posits that “most importantly . . . because the
BYU Defendants derive their authority to direct traffic exclusively
from the Provo City ordinance, Provo’s city council could, at any
time, rescind the ordinance or amend it to provide for additional
control and direction over BYU and its agents.” Supra ¶ 27 (emphasis
added). Respectfully, this observation is based on the flawed
premises that the ordinance, rather than an actual agreement, is the
exclusive source of authority and, secondarily, that a governmental
entity retains the right to control simply through the power to
legislate. An agent of the government is always subject to a potential
right to control by future legislation. The fact that Provo City could
rescind or amend the ordinance in the future to create a level of
control that did not previously exist cannot provide the foundation
for finding a master-servant relationship. Such an approach would
render the Act’s clear exception of independent contractors from the
term “employee” meaningless.
¶43 The government’s potential power to regulate is really no
different in this regard than the retained authority of a private
person using an independent contractor. A homeowner might
require a plumber to perform “in a workmanlike manner” but that
is hardly the retention of a right to control. See Dowsett v. Dowsett,
207 P.2d 809, 811 (Utah 1949) (recognizing that a nonservant may
operate under an agreement “to use care and skill in accomplishing
results”). A homeowner might go further and specify a particular
faucet to be installed by a plumber, but that would not amount to
sufficient control to vitiate the independent nature of the plumber.
The homeowner could, hypothetically, by virtue of his right to
control who may enter his or her home, insist on supervising every
aspect of the plumbing job, down to work hours, uniforms, the
snugness of the joints and the sealant used. This might transform the
contract between the homeowner and the plumber into an
employer-employee relationship. But the fact that a homeowner has
the legal ability to structure the relationship in that manner does not
mean that all homeowners who hire plumbers are employers. A
party’s mere legal ability to insist on a different agency, whether it
derives from legislative power or otherwise, does not constitute a
right to physically control the agency that actually existed.
¶44 All agents are subject to control. It is control over the
physical manner of carrying out the work that determines servant or
20
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JUDGE STONE, dissenting
independent contractor status. Here, the record supports only a
general restriction on BYU’s ability to direct traffic on city streets at
its large events: if BYU chooses to use cadets, they must be BYU
employees and they must be supervised by POST-certified BYU
police. That is hardly control by Provo over the physical conduct of
the BYU police or its cadets.2
¶45 A city might contract with an independent contractor to
paint a courthouse, build a jail, or repair a highway. The fact that
such contracts might have limitations specifying what the job
is—which courthouse and which color, detailed architectural plans
for the jail, or traffic safety requirements for the highway
repair—does not imply a retained right to control that transforms
the relationship from an independent contract. Similarly, if a city
were to contract with a private firm to provide snow plowing, but
only when it snows, the fact that snowstorms might occur
intermittently does not equate to a “right to control” when the
plowing occurs. Here, absent more evidence, it can be inferred that
Provo has simply determined to allow BYU or its private police force
the authority to control traffic at large university events.
¶46 Finally, even if we were to consider only the ordinance
itself, its terms do not support a conclusion that Provo City had the
right to control the physical conduct of the traffic cadet’s duties.
Instead, the ordinance at issue is an express delegation to BYU and
its private police force of the rights to hire and supervise cadets. This
is the opposite of Provo reserving the right to control: instead of
supervising the physical conduct of the traffic cadet’s duties, Provo
allowed a private party to do so. This loose, standardless delegation
would not be enough to render Provo City liable based on BYU’s
performance of the task, and therefore should not be enough to
result in immunity.
¶47 The court should have examined the actual agency
relationship as it existed at the time of the accident for purposes of
liability and immunity. The question here is, having authorized
2
State statute places fairly extensive restrictions on private
security guards, considerably more than the restrictions placed on
BYU in using traffic cadets. See UTAH CODE §§ 58-63-101 to -503.
Under the court’s reasoning, should a private guard end up
performing a governmental function such as directing traffic at a
private event, they are immune. Likewise, are private highway
contractors’ flagpersons, who presumably also operate under at least
some state regulation or safety laws, similarly immune from civil
action?
21
MALLORY v. BRIGHAM YOUNG UNIVERSITY
JUDGE STONE, dissenting
agent (BYU and its cadets) to perform a task, what control did Provo
actually reserve? What was the actual arrangement that existed at
the time of the accident? Applying the established test for finding an
independent contractor, and at this stage indulging all inferences in
favor of the nonmoving party, the court should ask: (1) what
covenants, express or implied, exist concerning the right to control
the physical manner in which the work is carried out? (2) which
party had the right to hire and fire? (3) what was the method of
payment? and, (4) who supplied tools and equipment? Harry L.
Young & Sons, Inc. v. Ashton, 538 P.2d 316, 318 (Utah 1975).
B. The Facts Support an Inference that the BYU Defendants
Were Independent Contractors
¶48 As to the first question, the parties agreed that, if cadets
were used, they would be employed by BYU and supervised by BYU
police.3 It does not matter that cadets perform a governmental
function; the Act assumes that there will be governmental functions
delegated4 to independent contractors, and does not extend
immunity to them.
¶49 The ordinance limits traffic cadets’ authority to direct
traffic to certain defined circumstances and conditions. That is
consistent with an independent contractor relationship, which is
typically limited to a “particular project or piece of work.” Young &
Sons, 538 P.2d at 318.
¶50 The record indicates that Provo City had no involvement
in Ms. Robinson’s supervision. Ms. Robinson was on the radio with
her supervising BYU police officer and not a Provo City police
officer. Provo City did not dictate how many hours cadets worked
or determine where they would be stationed. Indeed, the Provo City
police chief’s affidavit merely states that he had “witnessed” cadets
3
The Court’s opinion necessarily implies that the BYU police,
when supervising cadets, are also Provo employees. They are, after
all, acting for Provo and subject to the same “control” as the cadets.
Is Provo liable for workers compensation claims for these officers?
Tax withholding? Overtime violations? Why would the tests be any
different?
4
While Provo may have a nondelegable duty here to maintain
safe streets, that is irrelevant for purposes of analyzing who is an
“employee” under the act. The Act makes no distinction between
delegable and nondelegable functions. Plainly, state actors engage
independent contractors to perform nondelegable duties all the time.
Every state highway project potentially involves such contracts.
22
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JUDGE STONE, dissenting
in action and was “satisfied” with their “professional manner.”
There is nothing in the affidavit to suggest that the chief or other
Provo City police officers, acting in their official capacities, reviewed
the cadets’ performance or provided input regarding the manner or
method in which they performed their duties. The same can be said
with respect to the training provided to cadets. As acknowledged at
oral argument and as confirmed by the chief’s affidavit, the chief
simply ”reviewed” the training carried out by BYU and was
“satisfied” with that training.
¶51 Next, Provo City did not participate in BYU’s hiring or
firing decisions regarding cadets. The Provo City ordinance in this
case contemplates that the individuals directing traffic, under the
circumstances discussed above, would be employed by “a college or
university,” thus implying that BYU and not Provo City would
retain the right to hire and fire these individuals. In fact, the record
implies that BYU was solely responsible for reviewing the cadets’
skills and qualifications as part of the selection process, engaging the
cadets, and compensating the cadets.
¶52 Notably, the majority concludes that Provo City “retained
the right to discharge the BYU Defendants . . . at any time” and cites
Provo City Code section 9.01.050(1) as support for this proposition.
Supra ¶ 26. However, the cited ordinance grants the Provo chief of
police power to suspend only with respect to officers and agents “in
the Police Department” and does not extend to the BYU police or its
cadets.5 The police chief’s affidavit conveys that the two police
departments, Provo City and BYU, coordinate on a regular basis and
that he considers the BYU police officers to be “colleagues” rather
than subordinates. The fact that BYU had the sole right to hire and
fire, as well as to direct and supervise the cadets, favors a finding
that the cadets were employed by BYU in carrying out independent
5
The Provo Code establishes a Provo Police Department, PROVO,
UTAH, CODE § 9.01.010, and the provisions giving the Provo chief
control do not even permit him to fire subordinate officers—only
suspend them for up to fifteen days. Id. § 9.01.050(1). By its terms,
this does not apply to BYU police or BYU cadets. Importantly, the
Provo chief also has the ability to appoint special patrolmen to serve
without pay and expressly requires the Chief to supervise such
patrolmen. Id. § 9.01.070. It is revealing that Provo evidently had the
ability to appoint its own volunteer patrolmen, and retain
supervision of them, but did not do so with respect to traffic control
at BYU events. Instead, it authorized BYU to employ cadets, and
required that BYU supervise them.
23
MALLORY v. BRIGHAM YOUNG UNIVERSITY
JUDGE STONE, dissenting
contractor duties. See Ludlow v. Indus. Comm’n, 235 P. 884, 888 (Utah
1925) (“[A]n independent contractor can employ others to do the
work and accomplish the contemplated result without the consent
of the contractee, while an employé cannot substitute another in his
place without the consent of his employer.”).
¶53 In addition to the lack of supervision and hiring/firing
authority, Provo City also had nothing to do with the compensation
provided to either the cadets or the BYU police. The payment of
compensation is a key factor commonly used to distinguish between
independent contractor and employees in a variety of contexts. See
Young & Sons, 583 P.2d at 318 (listing as a factor to consider “the
method of payment, i.e., whether in wages or fees, as compared to
payment for a complete job or project”).
¶54 Specifically, BYU receives no compensation from Provo for
traffic direction. By using its own employees and cadets, BYU
assumes the risks and reaps the benefits of having control over
staffing those positions. That is a hallmark of an independent
contractor rather than an employee. Likewise, the basic indicia of an
employment relationship between Provo City and the cadets are
missing. Provo City did not provide Ms. Robinson any wages,
benefits, or insurance or withhold any taxes from her compensation.
While not dispositive, the manner in which the parties structured
their relationship is at least probative of Ms. Robinson’s status as a
servant or independent contractor.
¶55 The final factor weighing in favor of an inference that the
BYU defendants were independent contractors is that Provo City did
not provide any equipment necessary for the cadets or the BYU
police to perform its traffic control activities. Consistent with the
other factors, all favoring an independent contractor status, the
record reveals that BYU retained the right to determine appropriate
equipment.
¶56 To conclude, Provo City passed an ordinance that
authorizes university cadets, employed by a university and
supervised by university police, to direct traffic in certain specified
situations. Based upon the record below, there is nothing to indicate
that Provo City reserved any authority over those cadets, either in
terms of supervision, hiring, firing training, disciplining,
dispatching, or assisting. BYU, pursuant to the Provo City
ordinance, employed Ms. Robinson, among others, as student cadets
to assist BYU’s own police force in traffic control and direction
activities on Provo City streets. On this record, we must infer that
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JUDGE STONE, dissenting
BYU selected Ms. Robinson, directed her in the timing and
placement of her traffic direction, provided her with any necessary
traffic control equipment, and otherwise supervised every aspect of
her duties. Nothing in the record suggests that Provo had any say in
how many cadets (if any) were assigned to work that day, where
they were stationed, how many were supervised by how many
university police officers, how long before the game they appeared,
how long after they stayed, how they dressed, or whether they were
equipped with flags, flares, whistles, vests, or signs. Under these
circumstances, there is at least an inference that the BYU defendants
were acting as independent contractors without active participation
by Provo City. Based on that inference, the motion to dismiss should
have been denied. I would affirm the Utah Court of Appeals.
25