Bosch v. Perry, 66371
| Decision Date | 09 November 1983 |
| Docket Number | No. 66371,66371 |
| Citation | 311 S.E.2d 481,169 Ga.App. 28 |
| Parties | BOSCH v. PERRY et al. |
| Court | Georgia Court of Appeals |
David R. Autry, Atlanta, for appellant.
Thomas W. Thrash, Jr., Atlanta, Earl J. Van Gerpen, Marietta, for appellees.
Sandra and Robert Perry sued Dr. C.W. Bosch and William C. Galloway for personal injuries received by Mrs. Perry while she was on duty as a licensed practical nurse in the emergency room of Parkway Regional Hospital. Dr. Bosch, a physician with staff privileges at Parkway, entered the Parkway emergency room at approximately 5:00 a.m. with Galloway and a third person to obtain treatment for Galloway, who had suffered a chin laceration. Mrs. Perry was standing in the treatment room where Dr. Bosch was attempting to inject Galloway with a local anesthetic preparatory to suturing the wound. Galloway raised up suddenly from the treatment table and swinging his arms, struck Mrs. Perry, throwing her against a wall. The Perrys allege that both Galloway and Dr. Bosch were intoxicated at the time and that their negligence caused the resulting injury to Mrs. Perry's back.
Dr. Bosch moved for summary judgment as to all of the Perrys' claims. The Perrys moved for partial summary judgment as to Dr. Bosch's defense that their tort action was barred by Mrs. Perry's recovery of workers' compensation benefits as a result of her injury. The trial court denied Dr. Bosch's motion and granted the Perrys' motion for partial summary judgment. Dr. Bosch appeals.
1. Appellant contends that the trial court erred by granting appellees' motion for partial summary judgment and by denying appellant's motion on the issue of whether appellees were barred from maintaining a tort action by OCGA § 34-9-11 (Code Ann. § 114-103). We agree with appellant's contentions that the borrowed servant doctrine operates to extend immunity from tort liability to the special master of an injured borrowed servant who has received workers' compensation benefits. See generally, Freeman v. Pumpco, Inc., 167 Ga.App. 312, 306 S.E.2d 385 (1983); Jarrard v. Doyle, 164 Ga.App 339, 297 S.E.2d 301 (1982). Thus, a special master employing a borrowed servant who is a general servant of a general master is not such a third person against whom a common law action will lie under the provisions of OCGA § 34-9-11 (Code Ann. § 114-103). Scott v. Savannah Elec. etc. Co., 84 Ga.App. 553, 557-558, 66 S.E.2d 179 (1951). See Clements v. Ga. Power Co., 148 Ga.App. 745, 747(1), 252 S.E.2d 635 (1979). Therefore, we must now consider appellant's contention that Mrs. Perry was his borrowed servant.
The test for borrowed servants requires: Fulghum Indus. v. Pollard Lumber Co., 106 Ga.App. 49, 52, 126 S.E.2d 432 (1962). The issue of the right to control a borrowed servant relates specifically to the occasion when the injury occurred. Six Flags Over Ga. v. Hill, 247 Ga. 375, 377, 276 S.E.2d 572 (1981); Freeman, supra 167 Ga.App. at 313, 306 S.E.2d 385.
The evidence disclosed that Mrs. Perry was an employee of the hospital; she was assigned by the hospital to work in the emergency room; she was paid by the hospital; and her working hours were set by the hospital. Appellant stated by affidavit that during the "occasion" of assisting him in the treatment of Galloway in the emergency room, Mrs. Perry was under his direct charge and control. However, the hospital administrator testified by deposition that even while a nurse is assisting a physician in the emergency room and the physician has the duty of supervising the nurse in the medical care of the patient, the hospital does not relinquish control of the nurse.
While we have an apparent conflict in the evidence as to fulfillment of the first requirement of the borrowed servant test, we find no conflict as to the second element, as the evidence adduced on motion for summary judgment established that the hospital retained control over Mrs. Perry, even while she assisted appellant.
Initially, Mrs. Perry and a registered nurse were both present in the treatment room for the purpose of assisting appellant. However, after eye contact and gestures between the two nurses, the registered nurse left the treatment area to telephone her supervisor and to report that appellant did not appear capable of suturing Galloway due to appellant's intoxication. The incident in which Mrs. Perry alleges she was injured occurred while this telephone conversation was taking place. Thus, although Mrs. Perry did not immediately abandon her post in the treatment area, the evidence establishes without contradiction that even before she received any injury, she and the other emergency room nurse had acted in concert to withdraw from the control of appellant and to place themselves under the control of their employer, the hospital.
After being knocked against the wall by Galloway, Mrs. Perry left the treatment area, and both she and the registered nurse refused to return. Their refusal to return was apparently with the approval of their superiors, who advised them to do nothing to aggravate the situation. During the course of the episode, the two nurses contacted or received advice and direction from the nursing supervisor on duty, the assistant director of nursing, and the hospital administrator.
Thus, it conclusively appears under the particular facts and circumstances of the instant case, that the hospital retained and exercised control and direction over the nurses while they were assisting appellant. See Charter Builders v. Sims Crane Serv., 150 Ga.App. 100, 103, 256 S.E.2d 678 (1979). Cf. Six Flags, supra 247 Ga. at 378, 276 S.E.2d 572. The second requirement of the borrowed servant test, of which all three elements must be established (Charter Builders, supra 150 Ga.App. at 102(2)(a), 256 S.E.2d 678; Pilcher v. Wise Elec. Co., 129 Ga.App. 92, 93, 198 S.E.2d 713 (1973)), has not been satisfied. It is therefore unnecessary for us to determine whether issues of fact remain as to the first and third elements of the test.
As Mrs. Perry was not a borrowed servant of appellant, appellees were not barred from maintaining an action in tort against appellant as a third-party tort-feasor. Avis...
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