Utah Court of Appeals
Can businesses face liability for independent negligence when employees are found to be volunteers? Guss v. Cheryl, Inc. Explained
Summary
Teresa Guss, a paraplegic customer, was injured when Derek Edvalson (son of the business owner) assisted her to her vehicle using a makeshift ramp at Cheryl, Inc.’s salon. The jury found that the son was a volunteer, not an employee, but still allocated 42% fault to Cheryl, Inc. for independent negligence.
Analysis
In Guss v. Cheryl, Inc., the Utah Court of Appeals addressed whether a business can be held liable for its own independent negligence even when a jury determines that the person who caused the injury was a volunteer rather than an employee.
Background and Facts
Teresa Guss, a paraplegic customer, regularly received facial treatments at Cheryl, Inc.’s home-based salon. Because Guss used a wheelchair, salon staff routinely assisted her into and out of the building. On March 12, 2004, the owner’s 21-year-old son Derek helped Guss return to her vehicle using a newly installed ramp. When Derek lifted the rear wheels of Guss’s wheelchair to help her transfer into her car, she fell forward and suffered serious back and leg injuries requiring surgery.
Key Legal Issues
The central issues were whether Cheryl, Inc. could be held liable for independent negligence separate from any respondeat superior claim, and whether such a claim had been properly pleaded and tried. The jury found Derek was a volunteer, not an employee, eliminating vicarious liability, but still allocated 42% fault to Cheryl, Inc.
Court’s Analysis and Holding
The court applied the doctrine of trial by consent under Utah Rule of Civil Procedure 15(b). Despite vague pleadings, Cheryl, Inc. actively participated in a trial that focused significantly on the company’s independent negligence. The company’s opening statements, closing arguments, and approved jury instructions all addressed fault allocation and the business owner’s duty to customers. The court found no facial inconsistency in a verdict that held the company independently liable while rejecting vicarious liability.
Practice Implications
This decision demonstrates that businesses cannot escape liability simply because an individual who assists customers is deemed a volunteer rather than an employee. Companies may still face direct liability for their own negligent acts or omissions in how they manage customer safety. Defense counsel must be vigilant about objecting to unpleaded theories early in litigation, as active participation without objection may constitute consent to trying additional claims under Rule 15(b).
Case Details
Case Name
Guss v. Cheryl, Inc.
Citation
2010 UT App 249
Court
Utah Court of Appeals
Case Number
No. 20090592-CA
Date Decided
September 10, 2010
Outcome
Affirmed
Holding
A business entity may be held independently liable for its own negligence even when the jury finds that an individual who assisted customers was a volunteer rather than an employee, and such independent negligence claims may be tried by consent despite vague pleadings.
Standard of Review
Correction-of-error standard for whether trial court erred in entering judgment on theory not raised by pleadings; trial court’s determination that issue was fully tried reviewed for fair opportunity to defend
Practice Tip
When defending businesses in personal injury cases, object early and clearly to any independent negligence theories not properly pleaded, as active participation in trial without objection may constitute consent to trying unpleaded claims.
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