The opinion of the court was delivered by: LORD, III
Defendant Costa Lines, Inc. ("Costa"), has moved for summary judgment in this personal injury case on two grounds. First, Costa asserts that there was no legal relationship between Costa and Alstons Shipping and Travel, Ltd. ("Alstons"), whose employee's negligence allegedly was responsible for plaintiff's injury, sufficient to hold Costa liable. Second, Costa maintains that an exculpatory clause in its promotional literature and on the ticket purchased by plaintiff bars plaintiff's recovery. We will deny defendant's motion for summary judgment on both grounds.
Plaintiff purchased a ticket from Costa for an air-sea package tour. On August 9, 1975, plaintiff flew from Baltimore to San Juan, Puerto Rico. In San Juan she boarded the Carla C, a vessel owned by Costa, en route to Curacao, Caracas, Trinidad, Martinique and St. Thomas.
At Trinidad, plaintiff purchased a ticket on board the Carla C for an automobile tour of the island, sponsored by Alstons. While plaintiff was traveling in a taxicab owned and operated by Alstons, the cab left the road and struck a tree, resulting in a concussion and other injuries to plaintiff. Plaintiff alleges that the negligence and recklessness of Alstons' employee in the operation of the vehicle permit her to hold Costa vicariously liable, on the theory that Alstons acted as Costa's servant when it transported Costa's passengers on Trinidad.
In examining the nature of the relationship between Costa and Alstons, we must view the evidence most favorably to plaintiff and resolve all inferences in her favor. Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870 (3d Cir. 1972). Plaintiff's affidavit and exhibits disclose a close working relationship between the two companies. Costa's promotional literature mentioned "well-planned shore excursions" at each port of call, and at another point described Alstons as a "port agent". Near each port, including Trinidad, Costa's entertainment directors announced the tour; tour information was posted and tickets were sold on board the Carla C. Costa had told Alstons it would give Alstons all its Trinidad shore tour business, and immediately before the Carla C reached Trinidad, Costa personnel announced, advertised and sold tickets for only the Alstons' tour. The tickets for the shore excursion had "Costa Lines, Inc." printed on one side. Plaintiff has also submitted an exchange of letters between Costa and Alstons executives, in which Costa agreed to give Alstons all the Trinidad shore tour business from its ships and Alstons acknowledged receipt of the letter from Costa.
Costa's liability could be based on either of two legal theories: a real master-servant relationship between Costa and Alstons, and Costa's representation that Alstons was its servant. We will examine these in turn.
A. MASTER-SERVANT RELATIONSHIP
Under the doctrine of respondeat superior, a master is liable for the torts of his servants committed while they are acting in the scope of their employment, but a principal generally has no liability for the torts of independent contractors. Restatement (Second) of Agency §§ 219, 250 (1957). The Pennsylvania courts have delineated on several occasions the perimeters of the master-servant relationship. It is true that the existence of such a relationship in each case "must be decided on its own facts [and] the existence of all or some of the factors discussed in the . . . cases is not necessarily controlling," George v. Nemeth, 426 Pa. 551, 554, 233 A.2d 231 (1967). Nonetheless, the Pennsylvania Supreme Court has laid down a general principle in Green v. Independent Oil Co., 414 Pa. 477, 484, 201 A.2d 207, 210 (1964):
"[The] hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result." (citation omitted)
The distinction between master-servant (or "employer-employee") and independent contractee-contractor thus turns on the master's right to control the work done by the servant. Accord, Restatement (Second) of Agency § 220 (1957).
Plaintiff contends that there is a factual issue as to whether a master-servant relationship existed between Costa and Alstons. She argues one could be inferred on the basis of "the totality of the circumstances" -- i.e., the intimacy between the two companies described above. It is true that plaintiff does not allege directly those facts establishing Costa's right to control Alstons which are necessary to constitute a master-servant relationship. We hold, however, that the cumulative effect of plaintiff's evidence would permit a finder of fact to infer that Costa had the right to control the conduct of Alstons' work. In particular, Costa's advertisement of "well planned shore excursions", with no specification of who planned them, permits the inference that Costa did. This inference becomes even stronger when the presence of Costa's name on the tickets for the tour is considered. We cannot say at this time that a jury could not infer from these and other facts that Costa had the right to direct the manner in which the tour would be conducted, or, in other words, that a master-servant relationship existed.
Costa has produced an affidavit from its secretary stating that Costa neither determined the manner in which the shore tours were conducted, chose the tour's equipment or personnel nor set the prices for the tours. While these facts are not directly disputed, we note first that they assert only that Costa never exerted any control over Alstons, not that Costa had no right to control. Thus, like plaintiff's evidence, this evidence leaves to inference the crucial factor of right to control. Second, if this proof were presented in the form of oral evidence at trial, the finder of fact would be free to disregard it as ...