In Weinfeld v HR Photography, Inc. a videographer knocked a wedding guest to the ground with his video equipment during a wedding reception, resulting in a lawsuit where the issue of the videographer’s employment status was at issue.

HR photography Inc. was hired to provide photography and video services at the wedding. In turn, HR Photography hired a videographer to handle the video aspect of the work.

The plaintiff, the injured wedding guest, filed suit in Nassau County Supreme Court against the individual videographer under a theory of negligence, and against the photography company claiming negligent hiring, negligent retention, and negligent supervision.

The Nassau County Supreme Court granted HR Photography’s motion for summary judgment, concluding that the videographer was an independent contractor and that there was no evidence that HR Photography was negligent in hiring, supervising, or retaining the videographer.

On appeal, the Appellate Division discussed the status of the law and the rule for liability based upon negligent hiring. The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts. The key consideration in determining whether an employer-employee relationship exists is whether the alleged employer exercises control over the means used to achieve the results.

Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule.

In this case, the Court looked to the deposition testimony, which showed this wedding was the first time HR Photography hired the videographer, did not provide the videographer with health insurance, did not provide the videographer with a W-2 form, and the videographer used his own equipment at the wedding. Further, the Court ruled that HR Photography demonstrated, prima facie, that it did not know and that it did not have reason to know of any propensity on the part of the videographer to engage in the conduct that allegedly caused the accident.   As such, the trial court’s decision was affirmed.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.