No Response to Statement of Undisputed Material Facts Results in Loss

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s statement of undisputed material facts, summary judgment was granted and affirmed.

In Mack v. Comcast Corporation, No. W2017-02326-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2018), plaintiff had an unreturned Comcast cable modem at his house, and a worker attempted to retrieve it. During this attempted retrieval, there was an altercation, and the worker was injured. Plaintiff was arrested, his mug shot was published and he lost his job, but the criminal charges were eventually dismissed. Plaintiff brought this case alleging various causes of action against several defendants, including Comcast.

Comcast filed a motion for summary judgment asserting that it was not liable for the worker’s actions. Comcast argued that it uses outside vendors to do recovery work, and that the “persons alleged to be Comcast employees by the [plaintiff] were actually independent contractors for a separate entity that was an independent contractor for Comcast.” At the relevant time, Comcast had contracted with a company called CES to handle the recovery of equipment. In support of their motion, Comcast filed a statement of undisputed material facts, as well as an affidavit from the business manager of CES. Plaintiff filed a response to the motion for summary judgment, but failed to respond to the statement of undisputed material facts. After a hearing, the trial court granted Comcast’s motion for summary judgment, and the Court of Appeals affirmed.

The issue here was whether Comcast could be held liable for the worker’s actions.

The Tennessee Supreme Court has held that the following factors should be considered when determining whether a person is an agent of an independent contractor: (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) the self-scheduling of work hours, and (7) the freedom to render services to other entities. The most indicative factor is the right to control the conduct of the work. Control is a key element in the creation of a principal-agent relationship.

(internal citation omitted). Relevant to the control analysis, defendant Comcast submitted an affidavit from the company with which it contracted for recovery work. The affidavit stated that CES was an independent contractor with “full discretion in how it went about conducting equipment retrieval efforts;” that CES “used independent contractors as retrieval contractors to retrieve or attempt retrieval of Comcast equipment at the addresses provided;” that these retrieval contractors “had discretion in how they went about attempting retrieval” and “were allowed to organize and operate their retrieval attempts as they saw fit.”

The Court of Appeals ruled that this evidence negated an element of plaintiff’s claim (that the worker was an employee of Comcast), and that plaintiff failed to offer any countervailing evidence. The Court reasoned that the “law is clear that in order to hold a principal liable for the acts of another, a plaintiff must prove that the person causing the injury was the principal’s agent.” (internal citation omitted). Here, the affidavit and statement of facts filed by defendant established that the worker was an independent contractor of CES. Defendant “negated the proposition that the alleged tortfeasors were working on their behalf,” and plaintiff “did not marshal any evidence controverting the established fact that the individual tortfeasors were working as independent contractors for CES at the time of the events in question.” Summary judgment was accordingly affirmed.

This case shows the importance of properly responding to a motion for summary judgment. Plaintiff’s failure to respond to defendant’s statement of facts here was deemed fatal to their case.

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