Tarron v. Bowen Machine & Fabricating, Inc. – 7/7/2009
Arizona Court of Appeals Division One Holds That Reverses Summary Judgment and Holds That Right to Control Under the Borrowed Servant Doctrine Is a Question of Fact.
James Tarron, an employee of Phelps Dodge, was injured on the job as a result of the negligence of workers loaned to Phelps Dodge by Bowen Machine & Fabricating. Tarron sued Bowen, claiming that Bowen was vicariously liable for its workers’ negligence. The trial court granted partial summary judgment to Tarron on the vicarious liability issue, and, after a jury trial, Bowen appealed.
The Court of Appeals reversed. Under the borrowed servant doctrine, Bowen, the general employer, is not liable for its employees’ negligence unless Bowen had the right to control the particular work that caused the accident. Testimony in the case strongly suggested that Phelps Dodge, the special employer, had the right to control the negligent employees, but the contract between Phelps Dodge and Bowen provided that Bowen had “exclusive right to control” its employees’ work. Unlike the trial court, the Court of Appeals concluded that the contract provision was not dispositive on the right-to-control issue. The contract did, however, make right to control a fact question, thus defeating Bowen’s claim that it was entitled to summary judgment. The Court noted also that a general employer and a special employer can have joint control over a worker, but that too is a question of fact.
Judge Barker authored the opinion; Judges Hall and Thompson concurred.