Estate of Patrick Fields, by its Administrator, Michelle Fields, Michelle Fields, Individually, K.F., By Her Next Friend, Michelle Fields, A.F. By Her Next Friend, Michelle Fields, Jerry Fields, Individually and Mary Jane Fields, Individually v. Troy Shaw Michael Shaw and Sherry Shaw, Individually, and d/b/a Shaw Trucking and/or Shaw Farms Landus Cooperative d/b/a Farmers Cooperative Company and Grinnell Mutual Reinsurance Company

IN THE COURT OF APPEALS OF IOWA

No. 19-0985
Filed October 7, 2020

ESTATE OF PATRICK FIELDS, BY ITS ADMINISTRATOR, MICHELLE FIELDS,
MICHELLE FIELDS, INDIVIDUALLY, K.F. BY HER NEXT FRIEND, MICHELLE
FIELDS, A.F. BY HER NEXT FRIEND, MICHELLE FIELDS, JERRY FIELDS,
INDIVIDUALLY AND MARY JANE FIELDS, INDIVIDUALLY,
Plaintiffs-Appellees,

vs.

TROY SHAW; MICHAEL SHAW AND SHERRY SHAW, INDIVIDUALLY, AND
D/B/A SHAW TRUCKING AND/OR SHAW FARMS; LANDUS COOPERATIVE
D/B/A FARMERS COOPERATIVE COMPANY; AND GRINNELL MUTUAL
REINSURANCE COMPANY,
Defendants-Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Story County, James A. McGlynn,

Judge.

A farm cooperative takes interlocutory appeal from the denial of its motion

for summary judgment in a wrongful death suit arising from the actions of a grain

hauler. REVERSED AND REMANDED.

Brenda K. Wallrichs of Lederer Weston Craig PLC, Cedar Rapids, and Kent

A. Gummert of Lederer Weston Craig PLC, Des Moines, for appellants.

Brian P. Galligan of Galligan Law, P.C., Des Moines, Janice M. Thomas of

Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, Greg C. Schaffer of

Schaffer Law Firm, San Francisco, California, and Robert T. Simon, Travis E.

Davis, and Evan A. Garcia of The Simon Law Group, Hermosa Beach, California,

for appellees.

Heard by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
 2

TABOR, Judge.

Troy Shaw was hauling grain for the Landus Cooperative (Landus) when he

crashed into a farm tractor driven by Patrick Fields, causing Fields’s death.

Fields’s estate and family members1 sued Troy; Troy’s employer, Michael Shaw

and Shaw Trucking; and Landus. The estate asserts two claims against Landus:

(1) vicarious liability for Troy’s negligence and (2) direct liability for negligently

hiring Troy.2 In this pretrial appeal, Landus challenges the district court’s denial of

its motion for summary judgment on the negligent-hiring claim. Landus contends

it had no duty to evaluate the qualifications of an employee of its independent

contractor.

Finding merit in that contention, we reverse the summary judgment ruling.

The district court extended Landus’s liability beyond what is supported by current

Iowa authority. The record reveals no genuine issue of material fact to support the

position that Landus “hired” Troy as an independent contractor. And the estate did

not plead a claim that Landus was liable for failing to use reasonable care in

selecting Michael as an independent contractor. Thus, we reverse and remand for

entry of summary judgment for Landus on the negligent-hiring claim and for

dismissal of the punitive-damages claim.

1 We will refer to the plaintiffs collectively as the estate.
2 Because the father and son in this proceeding share the last name Shaw, we will
refer to them by their first names, Michael and Troy.
 3

I. Facts and Prior Proceedings

Landus is a farming cooperative that transports various agricultural goods

and products across Iowa.3 In 2016, Landus engaged Michael—the owner of

Shaw Trucking—as a grain hauler. Michael agreed to work for Landus under an

“Independent Contractor Agreement” stating:

1. This agreement does not constitute a hiring by either party.
It is the parties intention that Independent Contractor shall have an
Independent Contractor status and not be an employee for any
purposes . . . . Independent Contractor shall retain sole and
absolute discretion in the manner and means of carrying out their
activities and responsibilities under this Agreement. This Agreement
shall not be considered or construed to be a partnership or joint
venture, and the Company shall not be liable for any obligations
incurred by Independent Contractor unless specifically authorized in
writing. Independent Contractor shall not act as an agent of the
Company, ostensibly or otherwise, nor bind the Company in any
manner, unless specifically authorized to do so in writing.
2. Independent Contractor shall be responsible to the
management and directors of Company, but Independent Contractor
will not be required to follow or establish a regular or daily work
schedule, Independent Contractor shall supply all necessary
equipment, materials, and supplies. Independent Contractor will not
rely on the equipment or offices of Company for completion of tasks
and duties set forth pursuant to this Agreement.

The agreement also indemnified Landus “against any and all

liabilities . . . which may be imposed upon or incurred by or asserted against

[Landus] as a result of any negligence or misconduct on Independent Contractor’s

part, or from any breach or default of” the agreement “which is caused or

occasioned by the acts of Independent Contractor or agents for Independent

Contractor.” Michael agreed to “assume[] all risk in the use and operation of the

Independent Contractor’s vehicle(s) and related vehicle equipment” as well as to

3Landus has its principal place of business in Ames and operates under the name
Farmers Cooperative Company.
 4

“be responsible for providing proper safety devices and equipment to safeguard

users or operators of the vehicle and related equipment.”4

For several months, Shaw Trucking hauled grain for Landus without

incident. Michael employed his son, Troy, to do most of the driving—Troy drove

ninety percent of the Landus hauls.5 Troy testified that he did not talk to anyone

working at Landus before he started making deliveries. Although Troy knew of the

agreement between his father and Landus, Troy said he did not read the contract.

In June 2017, Troy was making a daytime delivery in one of Michael’s

semi-trailer trucks. His route crossed a “relatively flat and straight” stretch in rural

Greene County. On that two-lane paved road, Troy crashed into the back of a

farm tractor. The impact pushed the tractor into a ditch and flipped it upside down.

The tractor driver, Patrick Fields, suffered fatal injuries in the collision.

At the scene, the Iowa State Patrol conducted an investigation and collected

evidence. During an inventory of the truck, the officer discovered a spoon and pop

can; both had burn marks on the bottom. The state crime laboratory reported

finding heroin residue on them.6 A few hours after the accident, the patrol took

Troy’s urine sample. When questioned, Troy denied using drugs or drinking

alcohol before driving the truck. But he admitted taking hydrocodone, a painkiller,

after the crash to relieve back pain. Troy’s lab results returned positive for both

morphine and norquetiapine, an anti-psychotic medication.

4 Landus does not raise an argument about this indemnity provision on appeal.
5 Both Michael and Troy had valid Iowa commercial driver’s licenses.
6 During his deposition, Troy testified the items found in the semi-trailer truck dated

back to 2012.
 5

Patrick Fields’s estate—along with his parents, wife, and children—brought

a wrongful death suit against Troy, Michael, Michael’s companies—Shaw Trucking

and Shaw Farms—and Landus. The estate asserted five main claims7: (1) Troy

was negligent in operating the truck; (2) Michael was vicariously liable for Troy’s

negligence because Troy was acting as his agent at the time of the collision;

(3) Michael was directly liable for negligently entrusting the truck and negligently

hiring Troy; (4) Landus was vicariously liable for Troy’s negligence because Troy

acted as an agent or subagent for Landus; and (5) Landus was directly liable for

negligently hiring Troy. In May 2018, Landus moved for summary judgment,

contending it “retained no control over the day to day operations of Mike Shaw’s

business as an independent contractor, and therefore Landus did not owe a duty

to plaintiffs.” The district court interpreted Landus’s argument as addressing only

vicarious liability. The court found a genuine issue of material fact on whether

Landus exercised substantial control over Michael’s work to establish vicarious

liability and, if so, whether Landus exercised its control with reasonable care.

Thus, the court denied summary judgment.

After Landus moved for summary judgment, the estate filed an amended

petition asserting a new punitive-damages claim against Landus for recklessness

in employing Troy. Landus moved to dismiss the claim, asserting again that it

owed no duty to Fields and could not be liable for the willful and wanton disregard

7 The estate also sued Grinnell Mutual Reinsurance Company, Patrick Fields’s
carrier for underinsured-motorist coverage. But the district court granted the
company’s motion to sever. So that claim is not relevant to this appeal.
 6

of the rights or safety of others. In line with its summary judgment ruling, the court

found Landus did bear a duty to Fields and rejected the motion to dismiss.

In March 2019, Landus filed a motion for summary judgment on the

negligent-hiring claim. Landus argued that Michael, as an independent contractor,

made the sole hiring and firing decisions for his business. Because Landus had

no control over who Michael hired as employees, Landus argued it had no duty to

look into Troy’s qualifications.

Rejecting that argument, the district court found that Landus did have a duty

to investigate Troy. The court acknowledged Troy was “an employee or

subcontractor of Shaw Trucking” and not of Landus. But it reasoned that at least

two Landus employees knew Troy had a history of drug use.8 That knowledge,

the court found, imposed a duty on Landus to investigate Troy. Finding a genuine

issue of material fact as to whether Landus breached that duty, and if so, whether

its failure to screen Troy for drug use caused Patrick Fields’s death, the court

denied the motion. Landus unsuccessfully moved for reconsideration.

Landus then sought interlocutory review.9 The supreme court granted the

request and transferred the appeal to this court. Landus challenges the denial of

its motion seeking summary judgment on the negligent-hiring claim.

8 Debra Ott, a customer-service specialist, and Evan Hager, an operations
technician, gave depositions. Hager testified he heard rumors that Troy used
marijuana. Ott also was aware of rumors about Troy’s drug use but could not
remember when or from whom she heard that information.
9 The estate did not resist Landus’s application for interlocutory appeal.
 7

II. Scope and Standard of Review

We review a summary judgment ruling for correction of errors at law.

MidWestOne Bank v. Heartland Co-op, 941 N.W.2d 876, 882 (Iowa 2020).

Summary judgment is appropriate when there is no genuine issue of material fact,

the only conflict is the legal consequences of undisputed facts, “and the moving

party is entitled to judgment as a matter of law.” Id. (citation omitted). “The moving

party has the burden of showing the nonexistence of a material fact.” Nelson v.

Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting Hlubek v. Pelecky, 701 N.W.2d

93, 95 (Iowa 2005)). “An issue is ‘genuine’ if the evidence in the record ‘is such

that a reasonable jury could return a verdict for the non-moving party.’” Id. (quoting

Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857

(Iowa 2008)). “We view the evidence in the light most favorable to the nonmoving

party, who is entitled to every legitimate inference that we may draw from the

record.” Id. at 6–7. “When the facts are undisputed, we reverse only if the district

court misapplied the law.” Iowa Dep’t of Human Servs. ex rel. Palmer v. Unisys

Corp., 637 N.W.2d 142, 149 (Iowa 2001).

Summary judgment is usually not appropriate in negligence cases, as

negligence or causation questions are normally for the jury. Thompson v.

Kaczinski, 774 N.W.2d 829, 832 (Iowa 2009). “The moving party bears the burden

of demonstrating the nonexistence of a material fact question.” Banwart v. 50th

St. Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa 2018). But “the nonmoving party

may not rest upon the mere allegations of his [or her] pleading but must set forth

specific facts showing the existence of a genuine issue for trial.” Id. (alteration in

original) (citation omitted).
 8

III. Analysis

To begin, we clarify this appeal’s scope. In its briefing, the estate devotes

considerable space to the issue of vicarious liability determined in the first motion

for summary judgment. But Landus contests only the ruling on its second motion

for summary judgment and the denial of its motion to dismiss the punitive-damages

claim. Landus challenges the district court’s conclusion that Landus could be

directly liable to the estate for negligently hiring Troy.10

A. Direct Liability Negligent-Hiring Claim

Landus first contends the court erred in concluding that an employer of an

independent contractor has a duty to vet, qualify, and drug-screen the employees

of the independent contractor. In Landus’s view, the Restatement (Second) of

Torts section 411 (Am. Law Inst. 1965)—as adopted by this court in Jones v.

Schneider National, Inc., 797 N.W.2d 611, 614–15 (Iowa Ct. App. 2011)—imposes

a duty of reasonable care in “hiring” a contractor, not the contractor’s employees.

Landus also contends: “[W]hether an employer of an independent contractor owes

duties to hire and select the independent contractor’s employees, the conclusion

is the same under [Restatement (Second) of Torts section 411] and the successor

provision in [Restatement (Third) of Torts: Liability for Physical and Emotional

Harm section 55 (Am. Law Inst. 2012)].” Although the district court focused on the

10 The estate argues the second motion for summary judgment and motion to
reconsider were procedurally improper because they repeated arguments the
court rejected in the first motion for summary judgment. But the estate did not
raise that objection below. So we cannot reach it here. See Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”).
 9

Restatement (Second) in its ruling, we will touch on section 55 of the Restatement

(Third) of Torts.11

But first, we examine the tort of negligent hiring. The supreme court has

recognized a claim for negligent hiring, which requires proof:

(1) that the employer knew, or in the exercise of ordinary care
should have known, of its employee’s unfitness at the time of hiring;
(2) that through the negligent hiring of the employee, the
employee’s incompetence, unfitness, or dangerous characteristics
proximately caused the resulting injuries; and
(3) that there is some employment or agency relationship
between the tortfeasor and the defendant employer.

Godar v. Edwards, 588 N.W.2d 701, 708–09 (Iowa 1999) (quoting 27 Am. Jur. 2d

Employment Relationship § 473, at 913 (1996)). The court went on to “conclude

that an employer has a duty to exercise reasonable care in hiring individuals, who,

because of their employment, may pose a threat of injury to members of the

public.” Id. at 709.

The court also recognized that a claim of negligent hiring includes a claim

of negligent retention and supervision. Id. A negligent-retention-and-supervision

claim requires proof that an employer failed “to exercise ordinary care in

supervising the employment relationship so as to prevent the foreseeable

misconduct of an employee from causing harm to others.” Bandstra v. Covenant

Reformed Church, 913 N.W.2d 19, 42 (Iowa 2018) (quoting 27 Am. Jur. 2d

Employment Relationships § 375, at 885 (2014)). At its core, this claim requires

proof the employer reasonably should have foreseen the risk of harm to third

parties. See id.

11Counsel for Landus agreed in oral argument that we could look to either
Restatement in analyzing the duty question.
 10

Iowa courts frequently consult the Restatements as guidance on tort

questions. Our supreme court has not adopted the employer-liability provisions of

either the Restatement (Second) or the Restatement (Third) of Torts, but it has

embraced or favorably discussed other sections. See Ludman v. Davenport

Assumption High Sch., 895 N.W.2d 902, 910 (Iowa 2017); Thompson, 774 N.W.2d

at 829; see also Jones, 797 N.W.2d at 614 (collecting cases).

To resolve this appeal, we look first to the Restatement (Second) of Torts

as our guide. Section 409 provides the general rule: “Except as stated in

§§ 410–429, the employer of an independent contractor is not liable for physical

harm caused to another by an act or omission of the contractor or his servants.”

But a comment to this section notes:

[T]he law has progressed by the recognition of a large number of
“exceptions” to the “general rule.” These exceptions are stated in
§§ 410–429. They are so numerous, and they have so far eroded
the “general rule,” that it can now be said to be “general” only in the
sense that it is applied where no good reason is found for departing
from it.

Restatement (Second) of Torts § 409 cmt. b. Section 411 (“Negligence in

Selection of Contractor”) provides one relevant exception to the general rule

against employer liability:

An employer is subject to liability for physical harm to third
persons caused by his failure to exercise reasonable care to employ
a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless
it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third
persons.

Id. § 411 (emphasis added).
 11

In Jones, we tacitly recognized that driving semi-trailer trucks could fall into

the section 411 categories of work. 797 N.W.2d at 617. Jones, the employee of

an independent contractor, Fehrle Trucking, was injured by the driver-owner,

Elmer Fehrle. Id. at 612. Jones sued Fehrle’s employer, Schneider Carriers,

asserting Schneider “had not exercised reasonable care in selecting Fehrle

Trucking as an independent contractor.” Id. at 612–13. The issue was whether

Schneider was liable to Jones as a “third person” under section 411. Id. at 615.

This court held that the phrase “third persons” did not include “protection for

employees of an independent contractor.” Id. at 616.

We went further, though, and discussed whether the evidence Jones

presented created a genuine issue of material fact—had recovery been

permitted—that Schneider was liable for selecting Fehrle Trucking. Id. We found

no genuine issue of material fact for two reasons. First, the evidence was

insufficient for a jury to find Fehrle Trucking was unfit. In dicta, the opinion said,

“we cannot expect an employer to obtain a driving record of each driver” for an

over-the-road carrier. Id. at 617. Second, most of the evidence Jones presented

arose after the date of hiring, yet “the plaintiff must prove that ‘the employer knew,

or in the exercise of reasonable care should have known, of . . . unfitness at the

time of hiring.’” Id. at 617 (quoting Godar, 588 N.W.2d at 708) (alteration in

original).12 Because the record failed to reflect a genuine issue of material fact, we

affirmed summary judgment for Schneider. Id.

12Unlike the estate, Jones did not allege negligent retention, only negligent hiring.
See Jones, 797 N.W.2d at 617.
 12

In sum, this court applied section 411 but denied Jones relief. Id. From

Jones and other favorable discussions in previous cases, we find “ample authority

for the adoption of section 411 as a standard of care that binds an employer in

selecting an independent contractor.” Id. at 615. Yet, like the district court, we

recognize the Jones holding does not dictate the result here. Jones precludes

recovery from the employer by an injured plaintiff who is an employee of an

independent contractor. See id. It does not answer the question whether the

employer has direct liability for acts of the independent contractor’s employee.

We turn next to section 55 of the Restatement (Third) of Torts: Liability for

Physical and Emotional Harm. Although similar in substance to the Restatement

(Second), section 55 frames the analysis differently. As the New Mexico Court of

Appeals recently explained:

The Restatement (Third) of Torts, like the Restatement (Second) of
Torts, includes specific rules for the [employers] of independent
contractors, recognizing the policy-based modifications of duty that
arose under the Restatement (Second) of Torts’ approach.
However, the Restatement (Second) of Torts’ approach is grounded
in a “general principle” that, subject to numerous exceptions, one
who hires an “independent contractor is not liable for physical harm
caused” by the contractor. Restatement (Second) of Torts §
409 . . . . In contrast, the Restatement (Third) of Torts begins with
the imposition of a general duty of care and then crafts limitations
based on “considerations of policy and principle that warrant limiting
the duty of care owed by the hirer.” [Restatement (Third) of Torts:
Liability for Physical and Emotional Harm] § 55 cmt. a.

Lopez v. Devon Energy Prod. Co., 468 P.3d 887, 894 (N.M. Ct. App. 2020).

In other words, section 55 presupposes that an employer who hires an

independent contractor may be held liable for the negligent actions of the

independent contractor. This approach differs from the Restatement (Second),

which begins with the general rule that an employer is shielded from liability for the
 13

harmful acts of its independent contractors. The comments to section 55 further

explain:

Under this Section . . . when A hires B, A is subject to liability if A is
under a duty of care and negligently causes harm within the scope
of liability. The involvement of additional independent contractors (or
subcontractors) is a fact that may be relevant to the determination of
negligence, factual cause, or scope of liability, but not to the
existence of a duty of reasonable care.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 55

cmt. i.13

Under this framework, Landus may be subject to liability for Troy’s conduct

if the harm arose out of a breach of Landus’s duty in hiring Michael and Shaw

Trucking. But as discussed later, we are unable to consider this line of argument

because the estate did not plead a claim alleging that Landus was negligent in

hiring Michael. Instead, the complaint alleges only: “Defendant Landus was

negligent in hiring Troy . . . and in failing to ensure Troy . . . exhibited the necessary

skills, ability, and experience to operate the Shaw truck . . . in a safe and lawful

manner.” Section 55 does not reach a negligent-hiring claim against an employee

of the independent contractor, like Troy.

13 Accompanying this comment is an illustration in which a party planner hires a
fireworks vendor to provide a large show. The vendor relies on two assistants who
have no experience with large fireworks displays. The negligent conduct of one of
those assistants injures a party guest. The planner had a duty of care because
she hired a vendor to conduct an activity that posed a risk of physical harm to
others. The planner was liable to the guest for her negligence in hiring the vendor
without inquiring into the vendor’s qualifications if that negligence was a factual
cause of the harm to the guest and the harm was within the scope of the risk posed
by the negligence. See Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 55 cmt. i, illus. 7. This scenario suggests Landus may have
been liable to the estate for hiring Michael without inquiring into his qualifications
had the estate pleaded that claim.
 14

The estate’s argument fares no better under section 411 of the Restatement

(Second) as Jones adopted. The comment to section 411 defines the standard of

care that a reasonable person would use under the particular circumstances. It

emphasizes these factors:

(1) the danger to which others will be exposed if the contractor’s work
is not properly done; (2) the character of the work to be
done—whether the work lies within the competence of the average
man or is work which can be properly done only by persons
possessing special skill and training; and (3) the existence of a
relation between the parties which imposes upon the one a peculiar
duty of protecting the other.

Restatement (Second) of Torts § 411 cmt. c.

Citing this source, the district court found Landus had a duty “to carefully

select and hire drivers it intended to use.” That included “a duty to investigate

reports of drug use by Troy Shaw after he was hired as a driver.” But the court did

not determine that Troy was a “contractor” under section 411 before imposing a

duty on Landus. Instead, the court premised its conclusion on the unexamined

presumption that Troy “was hired as a driver.” While acknowledging Landus’s

position, the court found a question of material fact based on its expansive reading

of section 411, reasoning:

Landus asserts that it is insulated from responsibility because the
independent contractor relationship was between Landus and
Michael Shaw d/b/a Shaw Trucking, and was not directly with Troy
Shaw. It is undisputed that Troy Shaw was not a signing party to the
agreement with Landus. Troy Shaw’s employment was as an
employee or subcontractor of Shaw Trucking. The essence of this
argument is that Landus delegated its hiring and retention duties
under [section] 411 to Michael Shaw. However Landus has not cited
the Court to any authority which permits it to avoid its hiring and
retention responsibilities to another party. Therefore, Landus has
failed to show that it can avoid its responsibilities on a theory of
delegation.
 15

Based on the foregoing, the Court finds that a fact question
exists as to whether Landus breached its duty to the public as
provided by [section] 411.

After considering existing Iowa case law, we find the court misapplied the duty

analysis. When the court applies incorrect law, we must reverse. Palmer, 637

N.W.2d at 149.

As plaintiff, the estate must show it has a legal basis for claiming damages.

In the complaint, the estate asserted that Troy “was acting within the course and

scope of an employment and/or agency relationship with Michael Shaw . . . [and]

Shaw Trucking.” Also that Troy, Michael, and Shaw Trucking “were acting within

the scope and course of an agency relationship with” Landus. The estate further

maintained that at the time of the accident, Troy “was acting as an agent and/or

subagent for” Landus. According to the estate’s argument, because Landus failed

to investigate whether Troy “exhibited the necessary skills, ability, and experience

to operate the Shaw truck . . . in a safe and lawful manner,” Landus was negligent

in hiring Troy. The estate emphasizes Landus’s failure to consider Troy’s driving

record and drug history and to test him for drugs.

Landus insists it had no duty to investigate each truck driver of its many

independent contractors. In support, Landus points to the dicta in Jones,

suggesting the employer had no responsibility to obtain a driving record for each

over-the-road carrier working for the independent contractor. See Jones, 797

N.W.2d at 617. Landus faults the estate for not offering supporting authority to

show that Landus had a duty to investigate, vet, drug-test, or otherwise qualify the
 16

employees of Shaw Trucking, despite identifying Troy as a “subagent” of Landus

in the pleadings.14

On the other hand, Landus claims the federal motor carrier safety

regulations are controlling here, contending those regulations place the duty on

Michael to vet, qualify, and drug-screen his employees. Landus cites Harris v.

Velichkov, where the federal district court for Nebraska applied specific provisions

of the federal regulations to determine whether an employer of an independent

contractor could be liable under a nondelegable-duty doctrine. See 860 F. Supp.

2d 970, 984 (D. Neb. 2012). Repeating the designations in that case, Landus uses

the terms “shippers” and “motor carriers” to distinguish the respective duties and

obligations of Landus and Shaw Trucking.15

14 The Eighth Circuit Court of Appeals reached the same conclusion in a factually
similar case, Harris v. FedEx National LTL, Inc., 760 F.3d 780, 783 (8th Cir. 2014).
FedEx contracted with Fresh Start to transport its trailers between warehouses.
Harris, 760 F.3d at 782. A driver for Fresh Start was involved in a fatal collision.
Id. When the injured parties sued FedEx under the theory of respondeat superior
in hiring, training, and supervising the driver, the court denied relief. It found no
vicarious liability for a harm caused by the contractor or it servants. Id. at 783.
When the plaintiffs argued FedEx was liable for the driver’s negligence because
he was acting as FedEx’s employee or servant, the court weighed the factual
assertions and determined he was not. Id. at 785. FedEx had no duty to inquire
into the certification of the driver who was an employee of Fresh Start. Id. But the
circuit court did not address the plaintiffs’ negligent-hiring claim, as it went unpled
below. Id. at 786. Harris still illustrates the difference in the two claims—vicarious
liability of the employer is possible if the employee of the contractor was acting as
an employee or servant of the employer. The direct-liability claim is a different
theory, and one that our supreme court has not acknowledged.
15 In Velichkov, the court determined that the federal regulations imposed a duty

on motor carriers to investigate and otherwise qualify the drivers it hired for
employment. 860 F. Supp. 2d at 980. So the case turned on whether FedEx, as
an employer of an independent contractor, was a motor carrier. Id. at 979. The
court defined motor carrier as “a person who owns or leases a commercial motor
vehicle in connection with a business affecting interstate commerce.” Id. (quoting
49 C.F.R. § 390.5). By contrast, a shipper “is someone who sends or receives
property transported in interstate or foreign commerce.” Id. (citing 49 C.F.R.
 17

The estate complains that Landus did not focus on the federal motor carrier

safety regulations in the district court. Landus counters that it argued in its motion

to reconsider that the court’s analysis was “contrary to the statutory duty imposed

upon shippers by transportation laws.” We need not settle this dispute. The

discussion of the federal motor carrier safety regulations in Velichkov applied to

the issue of a nondelegable duty and not to negligent hiring. See id. at 978–80.

So we opt to decide the negligent-hiring issue before us without considering the

federal regulations.16

Using the Restatements as guidance, we see no basis for imposing a duty

on Landus to measure Troy’s fitness to operate a semi-trailer truck. Section 411

of the Restatement (Second) imposes liability for harm to third persons caused by

the employer’s “failure to exercise reasonable care to employ a competent and

careful contractor.” The district court found that Troy was not a contractor or an

employee of Landus. Yet it placed a duty on Landus “to carefully select and hire

drivers it intended to use.” Section 411 does not impose such a duty. Neither

does section 55 of the Restatement (Third). Thus, Landus would not be liable for

Troy’s conduct as a servant or employee of its independent contractor.

§ 376.2(k)). The court concluded that the independent contractor, Fresh Start, was
the motor carrier because it was responsible for transporting FedEx’s products
using its own transportation services. Id. Because it acted as a motor carrier, the
court held that Fresh Start had the duty to investigate the drivers it hired as
additional help. Id. at 980 (declining to impose burden of duty on FedEx who had
no relationship with the Fresh Start drivers).
16 We are also mindful that “the notion of nondelegable duty usually relates to

vicarious liability.” Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 55 cmt. d (clarifying that “the hirer’s direct liability in negligence
does not presuppose, or require a finding of, a nondelegable duty”). To avoid
conflating the issue on appeal with the vicarious-liability issue still alive in the
district court, we decline to address the federal regulations.
 18

The undisputed facts show Landus never contracted with Troy and did not

communicate with Troy before he began hauling for Michael. Troy did not see the

contractor agreement. And no facts show Landus intended to use Troy as a

driver—only that it intended to employ Michael’s business, Shaw Trucking.17 In

briefing, the estate asserts the district court discussed the facts and supporting

authority for Landus’s “direct retention of Troy Shaw” in the first motion for

summary judgment, discerning a direct employer-employee relationship. In its

response to that motion, the estate quoted Godar, 588 N.W.2d at 709, for the

principles governing the negligent-hiring tort, arguing: “[T]he traditional

employer/employee relationship need not be present to invoke this doctrine. All

that is required in that respect is a showing that ‘there is some employment or

agency relationship’ between the parties.” But the estate did not cite authority that

established there was an “employment or agency relationship” between Landus

and Troy, let alone “direct retention.”

17The estate probably understood this distinction because their amended petition
added allegations that both Troy and Michael were unfit to operate commercial
vehicles and that Landus was aware of this incompetence. The estate alleged
Landus was directly liable because of its lack of care in the hiring of “independent
haulers,” bringing Michael’s competence and fitness into the action. The court also
amended its ruling to specifically set forth its reliance on 49 C.F.R. section 382.301
(2016). That federal regulation states in pertinent part:
Prior to the first time a driver performs safety-sensitive functions for
an employer, the driver shall undergo testing for controlled
substances as a condition prior to being used, unless the employer
uses the exception in paragraph (b) of this section. No employer
shall allow a driver, who the employer intends to hire or use, to
perform safety-sensitive functions unless the employer has received
a controlled substances test result from the [officer or administrator]
indicating a verified negative test result for that driver.
49 C.F.R. § 382.301(a). This provides a claim against Michael as “a driver, who
the employer intends to hire or use,” but not against Troy because Troy is Michael’s
employee and Landus retained no control over Michael’s hiring decisions.
 19

To be clear, the negligent-hiring claim in the estate’s amended complaint

alleged the negligent hiring, retention, and supervision of Troy. The estate did not

plead a claim that Landus was liable for failing to exercise reasonable care in hiring

Michael as an independent contractor, which led to the hiring of Troy.

Comment (a) to section 409 of the Restatement (Second) of Torts defines

“independent contractor” to mean “any person who does work for another under

conditions which are not sufficient to make him a servant of the other. It is

immaterial . . . whether it is done under a specific contract or under a general

contract of employment.” Our supreme court has found there is an

employer-employee relationship “[w]hen the person hiring has the right to control

the details of the work as well as the results.” LaFleur v. LaFleur, 452 N.W.2d 406,

408 (Iowa 1990). “In contrast, if the person hired is free to do the work without

being subject to the order of the person hiring as to details, the hired person is an

independent contractor.” Id.

Here, the Independent Contractor Agreement shows Landus and Michael

did not agree to give Landus any significant control over the details of the trucking

operation: they agreed Michael would “retain sole and absolute discretion in the

manner and means of carrying out their activities and responsibilities under this

Agreement.” He would “not be required to follow or establish a regular or daily

work schedule,” or “rely on the equipment or offices of [Landus] for completion of

tasks and duties set forth” in the agreement. Based on the agreement’s language,

Landus hired Michael as an independent contractor. But the record reveals no

genuine issue of material fact that Landus directly hired Troy.
 20

We stress that the conclusion in the second summary judgment ruling

differs from that in the first summary judgment ruling on the vicarious-liability

claim.18 In the first ruling, the court determined Landus could be vicariously liable

for Patrick Fields’s death under section 414 of the Restatement (Second) of Torts,

which deals with the issue of retained control:

One who entrusts work to an independent contractor, but who retains
the control of any part of the work, is subject to liability for physical
harm to others for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise his control
with reasonable care.

Vicarious liability differs from the theory the estate advanced in the amended

petition, and which Landus sought to dismiss in its second motion for summary

judgment (that is, direct liability based on negligent hiring). The court’s initial ruling

finding a genuine issue of material fact whether Landus retained sufficient control

over Shaw Trucking to impose vicarious liability for Troy’s conduct does not

change the scope of Landus’s duty under section 411.

Neither our court nor the supreme court have extended section 411 to

encompass the vetting of an employee of the independent contractor. Indeed, the

estate does not identify an Iowa case that holds an employer liable under a theory

of negligent hiring for the harm caused by an employee of its contractor. Because

there is no current authority that supports adopting a broader interpretation of the

Restatement provisions, we decline to do so. We leave it to our supreme court to

determine whether section 411 of the Restatement (Second) of Torts or section 55

18 When asked during oral arguments to distinguish the claims for vicarious liability
from the claims for negligent hiring, retention, and supervision, both parties agreed
that the concept of retained control applied only to the vicarious-liability claim.
 21

of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm

should be extended to impose a duty on employers to vet the employees of their

independent contractors. See Rosauer Corp. v. Sapp Dev., L.L.C., 856 N.W.2d

906, 907 (Iowa 2014) (noting court of appeals “appropriately” deferred to supreme

court on expansion of implied warranty).

We conclude the district court misapplied the law in denying Landus’s

motion for summary judgment on the claim of direct liability for negligent hiring.

Our review of the record shows there is no genuine issue of material fact that

Landus independently or separately hired or retained Troy. And we find no

authority for extending an employer’s direct liability to the conduct of its

independent contractor’s employee. Thus, Landus was entitled to summary

judgment on the estate’s claim under that theory. We reverse and remand for entry

of an order dismissing this claim against Landus.

B. Punitive Damages

The estate asserts a claim for punitive damages based on the direct liability

theory—that Landus was negligent in hiring, retaining, and supervising Troy. We

review the court’s ruling on Landus’s motion to dismiss for correction of errors at

law. Rees v. City of Shenandoah, 682 N.W.2d 77, 78 (Iowa 2004). Because we

have already found the estate has no claim on that ground, we reverse the court’s

ruling and remand for entry of an order to dismiss the claim for punitive damages.

REVERSED AND REMANDED.