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Print Page Letting Their Guard Down
by Ron Davis

A security guard’s status as an “independent contractor” has doomed his bid to blame the owners of a Texas shopping center for injuries he suffered on the job.

The shopping center is Richland Mall in Waco, and the security guard fell down a flight of stairs while on patrol at the center. He later said that when he approached the stairway to start his descent, he bypassed a “wet floor” sign, and then began falling as he took a step down the stairs. He added that as he fell, he reached for a handrail but “there wasn’t any for some reason,” then landed on his right knee. The injuries his knee sustained required hospital care.

He sued the owners of the shopping center, arguing that the stairway at the time of his accident was covered in grooves or “etchings” that were a pinkish in color. He said he was uncertain about the handrail, but did reach out for it with his left hand (though later photographs showed a handrail that was in place and that would have been to the guard’s right on the stairway).

The daughter of the accident victim said that after the accident she chatted with her father’s supervisor, who, she noted, told her that “the steps were dangerous because of the grooving or etching.” She also said the supervisor added that he had almost slipped there himself on one occasion.

The company that employed the injured guard, however, works under contract with the shopping center. The general manager of the center testified that the company submits a “monthly inspection report” on matters related to the condition of the center and any investigations it performs.

As to accident investigation techniques, the general manager said she relies on the contractor. So, she added, any statements the accident victim’s supervisor made were not as an agent of the shopping center, but as an independent contractor and could therefore not be attributed to the center’s owners.

Under Texas law, an agent must act on behalf of another person and be subject to that person’s control. On the other hand, an independent contractor can act for and on behalf of someone else. But since the contractor is not under that other person’s control, the relationship of agency does not exist. So an agent represents the company he or she works for (usually as an employee); an independent contractor merely represents the contracting firm.

A Texas court, in ruling in favor of the shopping center’s owners, explained, “The record supports the conclusion that the security firm and its officers were merely independent contractors…. [The injured security guard] failed to carry his burden and establish as a threshold matter that an agency relationship existed between the shopping center and the security firm.” (Cuffee v. CBL/Richland Mall, LP, 2008 WL 2777904 [Tex.App.-Austin])

Decision: July 2008
Published: August 2008

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