December 2013 - Parks & Recreation - 23

significant evidence in establishing
an independent contractor relationship. Under such circumstances, the
agency is not responsible or held liable for the alleged negligence of the
independent contractor.
Free Bird
In the case of Thomas v. Oregon State
Police, 2013 U.S. Dist. LEXIS 90938
(Dist. Ore. 6/25/13), the issue before
the federal district court was whether
defendant Oregon Parks and Recreation Department (OPRD) was liable for the alleged negligence of an
agency and individuals providing security services at a state fair.
On August 14, 2009, OPRD entered into a contract with Starplex
Corporation for the provision of
security, crowd management and
related services at the Oregon State
Fair (OSF). On September 3, 2010,
Starplex provided security services
at a Lynyrd Skynyrd concert during
the Fair. Plaintiff Robert Thomas
(Thomas) attended that concert and,
while there, participated in a physical
altercation with another attendee.
Following the altercation, Starplex
employees asked Thomas to leave the
premises and escorted him to the center
aisle. Thomas responded by demanding
that security remove the other attendee
as well. While moving toward the exit,
Thomas was taken to the ground multiple times and placed in handcuffs by
Starplex employees, resulting in Thomas' fractured collarbone.
Thomas conceded that Starplex
was not an employee of OPRD. Instead, Thomas argued that Starplex
was acting on behalf of OPRD and,
therefore, Starplex employees were
agents of OPRD. As a result, Thomas claimed OPRD should be held
vicariously liable for the alleged negligence of Starplex security officers.

In response, OPRD maintained that
Starplex and its employees were not
acting as OPRD agents during the
Fair. As characterized by OPRD,
" nothing in the security contract
with Starplex nor any other evidence
established that OPRD had a right or
duty to monitor Starplex employees. "
As a result, OPRD claimed it was entitled to summary judgment, which
would effectively dismiss Thomas'
negligence claims against OPRD.

conduct of the agent that gave rise to
the tort claim.
In this particular instance, Thomas
had argued that Starplex was subject
to OPRD's control, and thus was
OPRD's agent based on " the terms
of the Contract. "
Applying " general principles of
contract interpretation, " the federal
district court noted that " contract
terms are to be given their ordinary
meaning. " Further, " when the terms

An agency will be liable for the negligent acts of its
agents, both employees and volunteers, when such
negligence was related or incidental to an agent's
responsibilities.
Agency Relationship?
The issue before the federal district
court was, therefore, " whether a reasonable jury could find that Starplex
was a nonemployee agent of defendant. " For Starplex to be considered
a nonemployee agent of OPRD, the
court would require Starplex to: (1)
be subject to OPRD's control and
(2) act on behalf of OPRD.
Moreover, the court noted that a
principal, in this case OPRD, " can
be liable for the torts of a nonemployee agent [in this case Starplex]
only if those actions are within actual or apparent authorization of the
principal " :
[A] principal is vicariously liable
for an act of its nonemployee agent
only if the principal intended or authorized the result or the manner of
performance of that act. Intention
or authorization over the manner of
performance must include the right
to control the physical details of the

of a contract are clear, the intent
of the parties must be ascertained
from the contract itself. " Examining
the terms of OPRD's contract with
Starplex, the court found OPRD's
" methods of control " stated in the
contract did not affect " the performance of Starplex or its employees
in a way that would establish an
agency relationship. "
Although the plain language of
the Contract does allow for OPRD
to determine and modify the delivery schedule, as well as to evaluate
the quality of the completed performance, these provisions do not serve
as evidence that Starplex was subject
to OPRD's control.
Most importantly, the court noted that the contract specifically
stated that " OSF cannot and will
not control the means or manner
of Contractor's performance. " Further, the court found " [t]he remainder of the Contract also serves as

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