If you believe “The Sopranos” did not get its story lines from real-life events, or maybe those real-life events no longer happen, take note of the following employment lawsuit. In the category of truth being just as strange as fiction, now comes the Michigan employment law case of Dennis Cole v. the Bada Bing Club (the actual name of the club) and Atlantis Lounge.9/25/2014. Mr. Cole sued the now-closed club in Lincoln Park, because its manager and three cohorts lured him to the basement (where else?) of the club and there taped him to a chair, beat him up and drilled through his hand with an electric drill.
Deviating slightly from the TV script, the four wise-guy wannabees (Henry Ramirez, Nathaniel Brewer, Ryan English and Coty Grifka) who maimed and bloodied Cole were arrested, convicted, and sent to jail. But that was not enough for Mr. Cole. He sued the owner of the Bada Bing (Mr. Nagy Mickhail) in state court on the principle of vicarious liability, for negligence in allegedly hiring, retaining and supervising Ramirez, the manager of the club and the ringleader in Coles’ beating. Perhaps amazingly, Mr. Cole did not “disappear” before the trial.
The trial court found that the Bada Bing’s manager was an independent contractor, not an employee. Therefore Mikhail could not be liable either directly or vicariously for Ramirez’s extreme employee disciplinary policies. Undaunted, Cole appealed the lower court’s finding based on the questions of who controlled Mr. Ramirez’ work, hours, work processes and the methods work.
As with more mundane employment, the same principles of employment and contractor apply here. The Appeals Court reasoned that where an individual “contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished,” he or she is, by definition, an independent contractor. But, “[i]f the employer of a person or business who is ostensibly labeled an ‘independent contractor’ retains control over the method of the work, there is in fact no contractee-contractor relationship” and the principles of master and servant apply. Therefore, the Appeals Court looked further into the activities of the owner and his manager.
The Appeals Court found the trial court was correct in determining that the Ramirez, the manager, was an independent contractor working on a verbal agreement that gave him control over the day-to-day operations of the club. Though Cole asserted that a formal contract existed between Mickhail and Ramirez, Mikhail presented the court with a document specifically identifying Ramirez as an independent contractor. But—this time adhering to the standard mob-show script—the document was unsigned and the by-now-convicted Ramirez denied any knowledge of it.
The court then considered the testimony of other Bada Bing employees. One of them, Frank Ziola, acknowledged that he was hired by, and paid by, Ramirez. According to Ziola, Ramirez “paid (employees) what he thought they were worth and if you complained you were gonna get it.” He described himself as “work(ing) for” Ramirez. It was Ramirez, said Ziola, who acted as an “enforcer” who “took care” of things that came up. Grifka, another “associate,” described Mickhail as a “boss,” but said that his work-related dealings were with Ramirez. Neither Ziola nor Grifka appeared to be privy to the inner workings of the relationship between Mickhail and Ramirez.
Despite testimony from fellow henchman that the manager “answered to the owner when things went wrong or needed to be done differently,” the Court relied more on evidence presented by Mickhail establishing that he only came to the club to collect “rents.” The “rents” were $12,000 each month “regardless of how the club performed.”
In conclusion, the Appeals Court could not find sufficient nexus between the manager and the owner to rule that an employer-employee relation existed between the two individuals.
Cole had also complained that the certain duties of the owner are non-delagable and the owner should still be held vicariously liable for the intentional torts committed by another person with whom he is in contract. But the Court held that because the manager was not an employee but an independent contractor who directly controlled the club and lounge, the duties that would be there more directly in an employment relationship were not present in the contractual relationship.
In true “Sopranos” fashion Mickhail, the owner, got off the hook.
Candelaria v BC Gen Contractors, Inc, 236 Mich App 67, 73; 600 NW2d 348 (1999); Campbell, 273 Mich App at 234 (quotation omitted).”