## Facts

- A tractor-trailer operator delivered a shipment of rice to a New York City grocer.
- The grocer hired three neighborhood day laborers to unload the trailer rather than using regular employees.
- The laborers were not on the grocer’s payroll, received no benefits, had no taxes withheld, and were free to work for others.
- The grocer paid a single flat cash amount to one worker and left division of the money to the group.
- The laborers had performed unloading for the grocer before, but only sporadically and on an as-requested basis.
- During unloading, one laborer assaulted the driver, causing personal injuries.
- The driver sued the grocer for (a) vicarious liability for the assault and (b) negligent hiring/selection for failing to investigate the laborers.

## Issues

1. Whether the grocer could be held vicariously liable for the assault because it exercised sufficient actual or constructive control over the day laborers to treat them as servants/employees.
2. Whether the grocer owed a duty to conduct background inquiries when selecting day laborers for an as-needed unloading task, supporting a negligent hiring claim.

## Decision

- The court affirmed summary judgment for the grocer.
- The court held the record did not support a finding that the grocer exercised actual or constructive control over the performance and manner of the unloading work sufficient for respondeat superior.
- The court held that, under these circumstances, there was no duty to conduct background inquiries in selecting individuals for this as-needed unloading work.

## Legal Principles

- Respondeat superior liability requires proof that the defendant exercised actual or constructive control over the performance and manner of the worker’s tasks; absent such control, vicarious liability does not attach as a matter of law.
- For casual, short-term, as-needed manual labor of this type, a hirer has no general duty to conduct background inquiries into the workers selected, absent circumstances creating such a duty.

## Conclusion

The court ruled that the grocer was not responsible for a day laborer’s assault because the evidence did not show employer-type control over how the unloading was performed, and the grocer had no duty to investigate the background of workers engaged for this informal, as-needed unloading task.


Lazo v. Mak's Trading Co., 84 N.Y.2d 896, 644 N.E.2d 1350 (N.Y. 1994)