AMI 707 Agent or Independent Contractor
Ark. Model Jury Instr., Civil AMI 707
Arkansas Model Jury Instructions-Civil
December 2023 Update
Chapter 7. Agency—Employment—Partnership—Joint Enterprise—Imputed Liability
AMI 707 Agent or Independent Contractor
One of the questions for you to decide is whether at the time of the occurrence (alleged agent) was the agent of (employer), or was an independent contractor.
An agent is a person who, by agreement with another called the principal, acts for the principal and is subject to [his][her][its] control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation.
If one person has the right to control the actions of another at a given time, the relationship of principal and agent may exist at that time, even though the right to control may not actually have been exercised.
An independent contractor is one who, in the course of [his][her] independent occupation, is responsible for the performance of certain work, uses [his][her] own methods to accomplish it, and is subject to the control of the employer only as to the result of [his][her] work.
[Any (negligence)(fault) of an agent while acting in the scope of [his][her] authority is charged to [his][her] principal. On the other hand, any (negligence)(fault) of an independent contractor is not charged to [his][her] employer.]
NOTE ON USE
This instruction may be given only when there is an issue whether a person is an agent or an independent contractor.
This instruction should not be given when the party is prohibited as a matter of law from denying responsibility for the acts of the person engaged by him, whether the person hired be an agent or an independent contractor. For example, see AMI 708 and 709.
Use AMI 209 with this instruction only if it is undisputed that the alleged agent was performing a service for and was being compensated by the principal. Otherwise, use AMI 207.
This instruction should not be used when ultrahazardous activities are involved.
Do not use last paragraph when the issue of agent or independent contractor is submitted on interrogatories.
COMMENT
This instruction is a correct statement of the law. Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988).
In distinguishing between agents and independent contractors, the Arkansas Supreme Court has relied on the Restatement (Second) of Agency § 220, which articulates ten factors to guide this inquiry. It has held that the first factor—the principal's right to control the putative agent's behavior—carries the most weight. See Blankenship v. Overholt, 301 Ark. 476, 479, 786 S.W.2d 814, 815 (1990); see also Howard v. Dallas Morning News, Inc., 324 Ark. 91, 100, 918 S.W.2d 178, 183 (1996); Dickens v. Farm Bureau Mut. Ins. Co. of Ark., 315 Ark. 514, 517, 868 S.W.2d 476, 478 (1994).
A physician may be found to be an agent or employee of a for-profit clinic or hospital where he practices. Medi–Stat, Inc. v. Kusturin, 303 Ark. 45, 792 S.W.2d 869 (1990).
A contract between the owner of a construction project and an independent contractor may present a question of fact with respect to the duty to supervise. Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993).
An agreement may be implied from conduct or oral statements of the parties, even though a writing provides otherwise. Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996).
State law, not federal law, including the Federal Motor Carrier Safety Administration regulations, controls the question of whether drivers of leased trucks are employees of motor carriers-lessees or independent contractors. Kistner v. Cupples, 2010 Ark. 416, at 2, citing 49 C.F.R. § 376.12(c)(4).
© 2023 Arkansas Supreme Court Committee on Jury Instructions-Civil
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