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State v. Sparks3/1/1999
ivities of day-to-day living, must be reached without the assistance of any@ presumption in favor of coverage. In pursuing the task confronting us, our goal is to establish a definition that will not foreclose compensation for injuries that manifest themselves at work, even though the employee may be involved in an activity that most people accomplish on a daily basis.
We are persuaded that the best analogy is found in the area of master/servant concepts; specifically, the doctrine relating to the right of control. We have previously invoked that doctrine to distinguish independent contractors from agents and employees for purposes of vicarious liability. Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 411 (Wyo. 1997). It is because of the right to control the details of the activities in which the employee is engaged that we impute vicarious liability to employers for the acts of their employees. Conversely, vicarious liability does not attach to one who hires an independent contractor because of the absence of that right of control. The explanation found in a leading treatise is:
" ince the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk * * *." W. Page Keeton, Prosser and Keeton on the Law of Torts' 71 at 509 (5 ed. 1984) (footnoteth omitted).
We said, when confronted with a claim that coverage for an injured individual was not available because he was an independent contractor, alluding to the tests for resolving that question:
An outstanding one of these is whether the employer has or has not retained the right of control over the party whose status is in question. If he has retained such right, the party is generally regarded as a servant. Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189; 28 R.C.L. 762; 71 C. J. 455, and cases cited." Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P.2d 736, 743 (1938).
We observe that several of our sister states also invoke the right of control test in worker's compensation cases for determining the issue of whether a claimant is an employee. Kelley v. Rossi, 395 Mass. 659, 481 N. E. 2d 1340, 1342 (1985); State v. Turner, 952 S. W. 2d 354, 357 (Mo. App. 1997); Oregon Drywall Systems, Inc. v. National Council on Compensation Ins., 153 Or. App. 662, 958 P.2d 195, 197 (1998); Glover By and Through Dyson v. Boy Scouts of America, 923 P.2d 1383, 1385 (Utah 1996). We deem this same doctrine, the right to control the details of the activity in which the employee is engaged, an appropriate test to determine whether the activities at work are normal activities of day-to-day living. The purpose of the doctrine in vicarious liability cases translates readily to worker's compensation issues. In both instances, the doctrine identifies the party who is vested with discretion over the work environment, and is, therefore, in the best position to mitigate the risks. This is an appropriate basis for distinction because the party possessing the ability to mitigate the risk normally should bear the cost of failing to do so.
We are satisfied that when an employee is engaged in activities over which the employer is vested with the right of control, these cannot be normal activities of day-to-day living because the employer has no such right with respect to the normal activities of day-to-day living. Consequently, the statutory phrase would allude to those activities accomplished within the workplace over which the employer is not vested with any right of control. We turn then to what the phrase "right of control" connotes. In
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