Reference no: EM133211863

1. After ten years of being a wizard after graduating from Hogwarts, Harry Potter yearned for a real persons' job, and got one delivering packages to UPS customers. Although Harry was great at driving broomsticks, it turns out he is not a very good driver of vans.

2. One day you are driving down the street in your neighborhood and you collide with the van driven by Harry when he didn't stop at a stop sign. You are injured. The van Harry is driving is painted brown (as UPS vans are), and also contains removable magnetic signs displaying the UPS name and logo. When he gets out of the van at the accident scene, Harry is wearing a UPS uniform. The van is not owned by UPS, but by Harry himself.

3. UPS's agreement with Harry is that he is authorized to service UPS customers in your neighborhood. The agreement is memorialized in a contract that identifies Harry as an "independent contractor" and provides that "the manner and means by which Contractor performs the services shall be at Contractor's sole discretion and control and are Contractor's sole responsibility." The agreement gives either party the power to terminate in the event of the other party's breach.

4. The agreement also recites a detailed list of procedures that Harry must follow in processing, picking up, and delivering packages and contains a provision under which Harry is required to indemnify UPS in the event Harry loses or damages packages bound for UPS's customers. Harry is contractually required to "wear a UPS uniform," and is required to submit to unannounced operational inspections and audits at UPS's sole discretion. Harry is also required to maintain the van in good working order, load and unload the van in strict accordance with specifications established by UPS, and always prominently maintain the UPS magnetic labels on the three sides of the van when making deliveries for UPS. Harry's van also contains a tracking device so that UPS can monitor and review the logistics of Harry's deliveries, and Harry can turn the tracking device off when he is not delivering for UPS. Finally, Harry is free to deliver the UPS packages at any time that is convenient for him during assigned delivery days, and he is free to use the van for other purposes when not delivering packages to UPS customers.

5. For your personal injuries arising out of the accident, you sue UPS. UPS seeks a "Summary Judgment", arguing that Harry is an independent contractor for whose alleged negligence UPS is not vicariously liable.

6. Explain whether UPS's request for Summary Judgment will be granted and who, if anyone, will pay for your damages. Explain your answer fully.