[SOLVED] Asphalt & Concrete Services, Inc. (ACS), was

Asphalt & Concrete Services, Inc. (ACS), was working on a play pad at St. John Regional Catholic School in Frederick, Maryland. ACS project manager Blake Wood contacted William Johnson at Higher Power Trucking, LLC, to arrange for a dump truck to haul material from a quarry to the job site. One day, while Johnson was driving the dump truck between the job site and the quarry, the truck struck and injured Moran Perry, who was crossing an intersection.
To recover for his injuries, Perry ﬁled a lawsuit in a Maryland state court against ACS. Perry alleged that Johnson’s negligence in operating the dump truck was the proximate cause of his injuries and that Johnson was ACS’s employee. ACS, however, claimed that Johnson was an independent contractor. A jury agreed with Perry and awarded him $529,500 in damages. The court issued a judgment in Perry’s favor, and ACS appealed.
Pursuant to the doctrine of respondent superior, an employer may be found liable for torts committed by its employee while acting in the scope of employment. ACS does not dispute this well-established rule, but it argues that the evidence showed that Mr. Johnson was not its employee.
Maryland courts have traditionally considered five criteria in determining whether or not an employer/employee relationship exists between two parties. These criteria, developed from the common law standard for determining the master/servant relationship, include
(1) the power to select and hire the employee,
(2) the payment of wages,
(3) the power to discharge,
(4) the power to control the employee’s conduct, and
(5) whether the work is part of the regular business of the employer.
Of the five factors, the factor of control stands out as the most important. Whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done is the decisive, or controlling, test.
Here, the evidence indicated as follows:
(1) ACS called Mr. Johnson directly to reserve his trucking services;
(2) Mr. Wood spoke only to Mr. Johnson when calling Higher Power;
(3) ACS directed Mr. Johnson to go to the quarry to pick up materials for the play pad project and gave him the time to be there for the pick-up;
(4) Mr. Johnson was required to bring the materials directly to the job site after his truck was loaded, and if Mr. Johnson did not deliver the materials promptly, ACS had the right to dock his pay or to no longer employ him;
(5) ACS paid Mr. Johnson on an hourly basis from the time he picked up his first load until ACS dismissed him from the job site;
(6) after Mr. Johnson delivered his first load of materials, ACS directed him to return to the quarry to pick up and bring back additional materials; and
(7) at the job site, Mr. Johnson was obligated to follow ACS’s directions in terms of where to drop the materials, how much material to drop, and how many times he would need to return to the quarry. Based on that evidence, a jury could find that Mr. Johnson was subject to ACS’s control, and ACS was liable for Mr. Johnson’s negligence pursuant to the doctrine of respondent superior.
The state intermediate appellate court afﬁrmed the jury’s ﬁnding with respect to Johnson’s status as ACS’s employee. The court disagreed, however, with the lower court’s admission of certain Johnson’s status as ACS’s employee. The court disagreed, however, with the lower court’s admission of certain evidence that may have inﬂuenced the jury’s ﬁnding of proximate cause for Perry’s injuries. As a result, the court reversed the judgment on this ground and remanded the case for a new trial.

Required:
Why did ACS contend that Johnson was not its employee? Discuss.

Question: Asphalt & Concrete Services, Inc. (ACS), was