dissenting,
In Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 43 P3d 1106 (2002), this court held that, as a matter of law, an individual who owned and maintained his own truck, and who, along with other owner-drivers, occasionally hauled *108onions for a farmer to the processor, was a worker and the farmer a subject employer under the workers’ compensation statutes. That conclusion was based on this court’s application of the judicially created “right to control” and “nature of the work” tests. I joined the opinion in Rubalcaba, because I concluded that this court’s cases applying the “right to control” and “nature of the work” tests compelled that result. I am not willing, however, to do the conceptual “about face” that the majority does here, to conclude that plaintiff is not entitled to have a jury apply essentially the same considerations in deciding whether, for purposes of vicarious liability, there was a master-servant relationship between defendant and Stockert.
This case is only at the summary judgment stage. Thus, a jury must be permitted to decide whether there was a master-servant relationship between defendant and Stockert, sufficient to impose vicarious liability, unless we can declare that, on this record, “viewed in a manner most favorable to the [plaintiff], no objectively reasonable juror could return a verdict for the [plaintiff] * * ORCP 47 C (emphasis added).
The majority acknowledges the following:
“In cases in which the facts or reasonable inferences support a conclusion that there is an employer-employee relationship, this court allows the jury to render a verdict as to the individual’s employment status — although a conclusion of law — by way of resolving those conflicting facts or inferences on the basis of proper instructions.”
334 Or at 101.
However, having acknowledged the jury’s role in deciding whether vicarious liability should be imposed, the majority proceeds to ignore it. For the reasons that follow, I respectfully dissent.
This court “frequently [has] said or assumed that the existence of a master-servant relationship is to be determined according to whether the master had the right to control the conduct of the alleged servant.” Peeples v. Kawasaki Heavy Indust., Ltd., 288 Or 143, 146, 603 P2d 765 (1979). The majority follows that approach, concluding that, for purposes *109of vicarious liability, the “right to control” test is the only test that should be applied. 334 Or at 100-01. As I point out below, that conclusion is dubious because, in earlier tort cases, this court has indicated that a jury may consider factors similar to those identified in the “nature of the work” test in deciding whether to impose vicarious liability. Nevertheless, even assuming that the court should use only the “right to control” test to determine whether the record presents a dispute as to a material fact, the majority errs in its application of that test. There is evidence in the record, which I list below, that would permit a juror reasonably to infer that defendant had the “right to control” the performance of Stockert’s work.
First, defendant had the right to terminate the employment relationship at any time without contractual liability. In Rubalcaba, this court emphasized that an “employer’s power to terminate [is] particularly strong evidence of the right to control, because the ‘effect of [the power to terminate] possessed by the company required respondent to conduct this operation at all times as it might please the logging company and its manager.’ ” Rubalcaba, 333 Or at 620 (citing Bowser v. State Indus. Accident Comm., 182 Or 42, 56, 185 P2d 891 (1947)) (emphasis added). Although that same reasoning should apply here, the majority accords no weight at all in this case to the right to discharge.
Second, defendant had economic control over Stockert by requiring Stockert to purchase his entire meat and fish requirements from defendant. Defendant supplied the products to Stockert on credit, which Stockert settled with defendant on a 30-day basis. As security for the financial arrangement, the contract required Stockert to prepay $1,000 to defendant.
Third, defendant provided the most important equipment necessary to perform Stockert’s work by fiirnish-ing Stockert with a $5,000 refrigeration unit with the name “Land and Sea Food Co.” on its side.
Finally, defendant supplied Stockert with brochures describing the products, and defendant “trained” salesmen, like Stockert, by taking them on sales calls and advising them of effective selling techniques and suggested prices.
*110A jury, considering those factors, reasonably could conclude that defendant exercised a degree of control over the manner in which Stockert performed his work, sufficient to justify the imposition of vicarious liability.1 That is all that ORCP 47 requires at this stage of the proceedings. The majority incorrectly concludes otherwise and deprives plaintiff of the jury trial to which she is entitled.
There is, however, more to this issue than the majority acknowledges. In the past, this court has commented that, in determining the existence of a master-servant relationship for purposes of vicarious liability, a jury may consider the various factors outlined in Restatement (Second) of Agency, section 220 (1958). See Wallowa Valley Stages v. Oregonian, 235 Or 594, 386 P2d 430 (1963) (so stating). Section 220 provides:
“(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
“(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
“(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
“(b) whether or not the one employed is engaged in a distinct occupation or business;
“(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
“(d) the skill required in the particular occupation;
*111“(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
“(f) the length of time for which the person is employed;
“(g) the method of payment, whether by time or by the job;
“(h) whether or not the work is a part of the regular business of the employer;
“(i) whether or not the parties believe they are creating the relation of master and servant; and
“(j) whether the principal is or is not in business.”
(Footnote omitted.)
In Wallowa Valley Stages, this court, referring to the factors identified in section 220 of the Restatement, stated:
“If the foregoing considerations are used in the trial of jury cases, the trial court ultimately has to tell the jurors, at least in a general way, how to apply to the case at hand their affirmative or negative answers to the Restatement tests. They must arrive at a general verdict based upon their decision that the actor in a given case was, or was not, a servant. Thus, the trial courts understandably rely strongly upon the element of control, or the right to control, and in their instructions relate to the general concept of control such other suggestions, like those found in § 220 of the Restatement, as they may see fit to use.”
235 Or at 599 (emphasis added).
As applicable to this case, Wallowa Valley Stages clearly established that, in determining whether the relationship between defendant and Stockert is of a nature sufficient to justify the imposition of vicarious liability, a jury is entitled to consider, and may give some weight to, the factors outlined in section 220 of the Restatement. The factors outlined in section 220 of the Restatement closely parallel the “nature of work” test that this court applied in Rubalcaba to hold as a matter of law that the claimant was a worker and that the farmer was a subject employer. See also Woody v. *112Waibel, 276 Or 189, 554 P2d 492 (1976) (identifying and applying the “nature of the work” test factors).
Here, a jury could find that a number of the factors identified in the Restatement are present and, when considered along with the primary right to control factors, are sufficient to impose vicarious liability.
Evidence conforming to the Restatement factors include the following: Defendant is a corporation that sells meat and fish products. The sale of defendant’s products to the public is accomplished by salesmen, like Stockert, who sell to customers in certain geographic areas.
Stockert was not engaged in a distinct occupation, as usually is the case with independent contractors. The skill used in selling meat and fish products is typical of a route salesman, and that relationship usually is one of master-servant. Stockert had no independent business listing in the yellow pages of the telephone directory, did no advertising, and used business cards identifying himself as “Adam Stockert, a representative of Land & Sea Food Co” (Emphasis added.) Stockert had no employees of his own. At the time of Stockert’s death, the relationship had existed for four years. Stockert carried commercial auto insurance in the amount of $300,000, endorsed to show defendant as an additional insured.
In Wallowa Valley Stages, a jury had determined that Badgett, who distributed Oregonian newspapers in eastern Oregon, was an employee of the Oregonian for purposes of vicarious liability. On appeal to this court, the Oregonian contended that, as a matter of law, Badgett was an independent contractor and the jury should not have been permitted to decide the issue. In affirming the judgment against the Oregonian, the court stated:
“We do not hold that the amount of supervision exercised in the case at bar was sufficient to constitute Badgett an employee as a matter of law. Neither can we hold that Badgett was an independent contractor as a matter of law. We hold that there was evidence from which the jury could draw its own inferences on the matter”
235 Or at 602 (emphasis added).
*113Conceptually, this case is indistinguishable from cases like Wallowa Valley Stages. The evidence of control and the evidence consistent with the factors identified in the Restatement are not, as a matter of law, sufficient one way or the other to define the relationship between defendant and Stockert. However, the record does contain evidence that is sufficient for a jury to decide whether the relationship is of the type that justifies the imposition of vicarious liability. That is all that is required under this court’s cases.
Durham and Riggs, JJ., join in this dissenting opinion.The majority relies extensively on this court’s decision in Jenkins v. AAA Heating, 245 Or 382, 421 P2d 971 (1966). According to the majority “the facts of this case are not materially different from those in Jenkins, * * 334 Or at 106. In that case, there was a complete absence of control over the manner in which the salesmen did their work. All that the heating company did was provide an order book and pay commissions for any order brought to the company. Here, as set out earlier, defendant had the right to terminate the relationship at will, provided key equipment, supplied brochures regarding the product and the product itself, and bore some economic risk in the sale of the product. Those facts alone are sufficient to distinguish this case from Jenkins.