However, PPCT must approve the instructor trainers training request. Instructor trainers may not teach non-PPCT techniques. Unlike instructor trainers, instructors do not sign an agreement with PPCT.
However, instructors must follow certain procedures for class certification. Instructors must submit a training certification request, provide students with instruction manuals, and submit student evaluations, a training injury report, a class roster, and copies of the students exams to PPCT. When teaching a PPCT technique, instructors may not grossly modify the technique in the printed manual. Andersons opposition claimed that there were disputed issues of fact and developed an additional argument for PPCTs vicarious liability for the negligence of the instructors.
PPCT filed a second motion for summary judgment, arguing that 1 the instructors were not employees of PPCT, and 2 even if the instructors were independent contractors, PPCT was not liable for the torts of its independent contractors.
Andersons opposition again claimed disputed issues of fact and argued that principles of vicarious liability, respondeat superior, actual and apparent authority, and retained control made PPCT liable for the actions of the instructors. The superior court denied PPCTs motion for summary judgment on the negligence claim, finding that there were material facts in dispute as to whether plaintiff was injured during a segment of the training academy that was a part of the PPCT training.
Noting Andersons shifting theories of liability, the court allowed PPCT to move for summary judgment on the agency theories. PPCT made a third motion for summary judgment that was eventually withdrawn with permission to file a fourth motion for summary judgment addressing any remaining issues. In its fourth and final motion for summary judgment, PPCT argued that 1 Anderson could not establish duty or breach under her negligence claim, and 2 no agency relationship existed between PPCT and the instructors.
The court concluded that, as a matter of law, the instructors were not acting as agents of PPCT and granted PPCTs motion for summary judgment on the issue of agency.
As to the issue of negligence, the court concluded that previously identified factual disputes about whether dynamic training was part of PPCT training remained, and also determined that there was a factual dispute about whether the technique being used when [Anderson] was injured was a technique taught by PPCT. Therefore, the court denied PPCTs motion for summary judgment on the negligence claim but explained that at trial Anderson would have the burden of showing 1 what maneuver was involved in her injury; 2 that the maneuver [was] one that was being taught based on the training that the Instructors had received from PPCT; and 3 that it was somehow negligent or otherwise improper for PPCT to have instructed the Instructors to teach this maneuver to others.
Anderson moved for reconsideration of the courts characterization of the required elements of her negligence claim. Anderson maintained that she should not be required to show that the maneuver involved in her injury was based on PPCT training.
The court denied the motion for reconsideration and suggested that if Anderson could not meet her evidentiary burden, she should allow judgment to be entered and appeal. Anderson refused to voluntarily dismiss the case, leading the court to sua sponte reconsider its earlier decision and grant PPCT summary judgment on the negligence claim.
Anderson appeals the superior courts conclusions on summary judgment that 1 the instructors were not employees of PPCT, 2 the instructors were not independent contractors over whom PPCT retained sufficient control to impose liability, 3 there was no agency relationship between PPCT and the instructors, and 4 PPCT did not owe or breach a duty of care to Anderson. We disagree. Under the doctrine of respondeat superior, a master is liable for the negligence of a servant that occurs within the scope of employment.
The parties do not appear to have believed that they were creating a master-servant relationship. While two instructors referred to themselves as representatives of PPCT, they did not refer to themselves as employees, and one stated clearly that he did not work for PPCT.
Based on all of these factors, we conclude that, as a matter of law, the instructors were not servants of PPCT. We have recognized that a principal can be vicariously liable for the torts of its agents. Deposition statements by instructors that instructors are representative of [PPCT], instructors represent [DOC] and PPCT, and that instructor trainers are elite member[s] of the organization indicate that the instructors believed that their behavior reflected upon the reputation of PPCT.
There is no indication that the instructors believed they had the authority to act on PPCTs behalf. Addington articulated his belief that he represent[s] the techniques that [PPCT] teach[es] but not that he represent[s] the organization.
Anderson argues next that the instructors had apparent authority to act on PPCTs account. We have adopted the Restatement general rule for creation of apparent authority: [A]pparent authority to do an act is created as to [a] third person[] by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.
But because Anderson does not identify these statements, it would be impossible to determine whether her belief was reasonable. Furthermore, the statements were not made by the principal, PPCT. Although there is evidence in the record that instructors sometimes wore PPCT gear, there is no evidence that any of Andersons instructors wore PPCT gear during her training. This court has found it to be clear error for a trial court to find apparent agency when the third party never spoke with the principal about the transaction at issue.
Retained Control Anderson argues that the instructors were independent contractors, and because PPCT retained control over the manner in which they conducted training, PPCT is liable for the instructors negligence. We agree with the superior courts conclusion that PPCT did not retain sufficient control for liability to attach. As a general rule, an employer is not responsible for the negligence of an independent contractor.
We consider a number of factors when deciding whether retained control applies, none of which is individually determinative of the outcome. The right to conduct safety inspections and the authority to direct that dangerous equipment not be used or operations cease because of safety concerns indicated retained control in Hammond v.
Bechtel Inc. Alyeska Pipeline Service Co. Matanuska Electric Assn,29 the right to conduct inspections and stop work were not sufficient to attribute liability where the contract indicated that the independent contractor was responsible for safety compliance.
Inspections and stop-work provisions do not necessarily establish retained control if the employer does not assume any affirmative safety duties. In Moloso the court also noted that [i]f the employer reserves and exercises only the right to inspect the construction work to see that the contract specifications are met while the independent contractor controls how and when the work is to be done, there is probably not sufficient retained control to subject [the employer] to liability. However, as in Petranovich, any safety requirements were the responsibility of the instructor, not PPCT.
While PPCT told instructors to follow specific speed and repetition guidelines during training, these procedures were designed to help students retain information. The record does not indicate that PPCT has the right to order a training stopped or resumed. PPCT may have the right to review an instructor trainers techniques or to receive course evaluations, but this is insufficient to indicate retained control under both the Restatement guidelines32 and Moloso.
In its sua sponte order denying PPCTs motion for summary judgment the superior court explained that, in order to prevail on her negligence claim, Anderson must show at trial 1 what maneuver was involved in [her] injury; 2 that the maneuver is one that is being taught based on the training that the Instructors had received from PPCT; and 3 that it was somehow negligent or otherwise improper for PPCT to have instructed the Instructors to teach this maneuver to others.
The superior court framed Andersons negligence claim too narrowly. Anderson argues that a reasonable training program should include safety precautions that were not included in the PPCT course.
While the general rule is that a person is not required to act to protect another, we have concluded that, when an actor undertakes to render services to another, section of the Restatement Second of Torts sometimes establishes a duty of care. Banner Health System we recognized that multiple provisions of the Restatement reflect the overarching view that undertakings can create a duty of care and that one who voluntarily assumes a duty must then perform that duty with reasonable care.
Nor does the claim require a showing that PPCT had control over the DOC academy or had an agency, independent contractor, or master- servant relationship with the instructors. The Martial Arts students are not only NOT taught when they are Justified, but they are trained to initiate this level of force as a Stimulus-Response; this is bad as well because no decision-making is involved in this type of response.
An example would be the attacker grabbing your shirt, and your instantaneous response is to grab their arm while simultaneously kicking them in the groin, stepping in, throwing them to the ground, striking their eyes, with a crushing heel kick breaking their ribs, as you take cover away. Obviously, Martial Arts has no place in Law Enforcement and Security Agencies as their primary system to manage uncooperative suspects; it would be fine to have Martial Arts as an option in Deadly Force situations, but not as a primary system.
This leads to increased criminal and civil liability for the officer as well as the Agency he or she works for. An explanation of why it is the most effective system is as follows: Going back to examples in a Martial Arts Dojo, during sparring competitions…almost all of the strikes, punches, blocks, and kicks produce decent effectiveness in gaining an advantage and scoring points.
But every once in a while…with over competitors over several hours, you find a punch, strike, or kick that has devastating results. This rare instance, other than unintended impact to the groin area, is almost always a severe motor dysfunction, by a perfect type of punch, strike, or kick to a Nerve Motor Point. This type of motor dysfunction is only temporary, lasting only five or ten minutes with no permanent damage; they might get a bruise because of it, but that is all.
If you had a team of trained observers who could keep track of every strike, kick, and punch done by every competitor over the course of several hours, you might discover that the exact same type of nerve motor point was struck hundreds of times over the course of the event, but only resulted in a severe motor dysfunction two times.
In other words, that severe motor dysfunction was done by accident during the Martial Arts Competition, by blind luck.
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