Santorii v. MartinezRusso (CA1 8/23/16)

The court concludes that real-estate salespeople are not employees of their brokerage for tort purposes.

A real-estate salesman, while on the job, caused a car accident that killed Plaintiff’s decedent. She sued the brokerage firm for which he worked on the basis of  respondeat superior. The firm moved for summary judgment, arguing that the salesman was an independent contractor. The trial court granted the motion; Plaintiff appealed.

The Court of Appeals affirms.

Plaintiff cited R4-28-1109(D) of the Administrative Code: a broker “is responsible for the acts of all . . . salespersons . . . acting within the scope of their employment.” But other regulations require the broker to supervise only licensed activities and the handling of forms and records, so “a broker’s responsibility is more limited than that of an employer that supervises all aspects of an employee’s work.” In addition, though real-estate salespersons are “employees” for purposes of workers comp and unemployment, the Arizona Supreme Court has declined to apply that to tort law;  “cases arising under . . . social legislation are not necessarily authorities for principles giving rise to common law liability . . .”

Plaintiff cited an illustration from Restatement §220 (elements of employer-employee relationship) to the effect that a real-estate salesman who causes an accident makes his broker liable but not his principal. The court says that the point of the illustration is the part about the principal, for purposes of which it simply assumes that the broker is an employee.

The court also declines to hold that Defendant had a non-delegable duty. Nothing in Arizona law requires even a duty, much less a non-delegable one.

Plaintiff also contended that in this particular case there was a question of fact about the relationship. The court, after reviewing the facts, disagrees.  

(Opinion: Santorii v. MartinezRusso)