Colwell v. Oatman
| Decision Date | 27 March 1973 |
| Docket Number | No. 71--454,71--454 |
| Citation | 32 Colo.App. 171,510 P.2d 464 |
| Parties | Robert Patrick COLWELL and the State Compensation Insurance Fund, Plaintiffs-Appellees, v. Perry OATMAN and Labor Pool of Colorado, Inc., a Colorado Corporation, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
William Myrick, Denver, John Criswell, Englewood, for plaintiffs-appellees.
Montgomery, Little & Young, David C. Little, Denver, for defendant-appellant.
Plaintiffs, Robert Colwell and the State Compensation Insurance Fund, brought this action against Labor Pool of Colorado, a corporation in the business of furnishing labor to other businesses, and its employee, Perry Oatman, seeking damages for injuries Colwell received while on the job. Plaintiffs allege that Labor Pool and Oatman were responsible for Colwell's injuries, which resulted from an accident in which Oatman, while attempting to unload a refrigerator from a truck, dropped it off the rear of the truck onto Colwell. Oatman was not served with process and did not appear.
By this action, plaintiff Colwell sought his medical expenses, lost wages, pain and suffering, and temporary and total disability. The State Compensation Insurance Fund was joined as subrogee to certain of Colwell's rights. The jury returned a verdict in favor of Colwell and the Fund in the amount of $75,000. Labor Pool appeals. We affirm.
The following facts were established at trial. On the date of the accident, Colwell's employer, Murph's Express, ordered two men from Labor Pool to help with the loading and unloading of heavy appliances. Oatman and another man were selected by Labor Pool. Upon their arrival at Murph's Express, the management refused to allow Oatman's partner to start work due to his 'obviously drunken condition.'
Thereafter, Oatman was assigned to assist Colwell in moving some refrigerators. Colwell soon noted that Oatman had a strong odor of alcohol about him and due to intoxication or for other reasons, he was unable to handle the refrigerators in the loading operation. As a result, Colwell completed the loading operation on his own. He and Oatman then drove to the site where the refrigerators were to be unloaded. Upon arrival there, Colwell instructed Oatman to remain on the ground and lower the refrigerators to the ground as Colwell slid them off the back of the truck. It soon became apparent that Oatman did not have sufficient strength to accomplish this task and they switched positions. Colwell then instructed Oatman to bring the refrigerators out to the edge of the truck bed and hold back on the weight as each appliance was unloaded. As the first refrigerator was being unloaded, Oatman allowed it to topple off the end of the truck onto Colwell, and the injuries complained of resulted.
Labor Pool brings this appeal, asserting several points of error. We affirm.
Labor Pool first argues that under the terms of its contract with Murph's Express, Oatman was a loaned service employee, exclusively under the control of Murph's Express, and that, thus, Labor Pool could not be held responsible under theory of respondeat superior. The problem of determining whether the general or the special employer is responsible for the torts of a servant loaned by the general to the special, has been confronted before by the Colorado Supreme Court. Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044; Landis v. McGowan, 114 Colo. 355, 165 P.2d 180. Although the results of these cases differ, the ultimate principle to be extracted from each is that a determination of which master is to be liable, in the absence of statute, depends upon who controls the servant. This determination is ultimately a question of fact. The question becomes one of determining whether sufficient facts were offered to support the jury's conclusion that Labor Pool had not surrendered enough control over Oatman to escape liability for his torts.
Testimony at the trial established the following facts with regard to the nature of Labor Pool's business: It is only when the persons hired by Labor Pool are performing services for one of its customers that either Labor Pool or the employee receives any compensation; the compensation of these employees is paid by Labor Pool, which withholds taxes, social security and workmen's compensation premiums; and Labor Pool has the right to hire and fire its own employees.
Further evidence established that when Labor Pool sends an employee on a job, the employee presents to the customer a contract covering his services. The contract specifically provides that the loaned employees are employees of Labor Pool and cannot be hired by the special employer for a period of ninety days. The contract also provides other restrictions on the use of the employees.
After an employee is on the job, Labor Pool continues to exercise a certain degree of control over the employee. The fact that Labor Pool has this right, regardless of the manner in which it is exercised, is, in itself, sufficient evidence to establish the requisite control to hold Labor Pool liable. Keitz v. National Paving & Contracting Co., 214 Md. 479, 134 A.2d 296, 136 A.2d 229. Testimony further established that Labor Pool representatives can visit the job sites from time to time and actively supervise Labor Pool's employees on the job. They also make checks on the employee's physical condition.
Labor Pool, relying on Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975, maintains that a contrary rule is in effect in the State of Colorado. We do not agree. The Jacobson case is entirely consistent with the rule we announce here. The distinguishing factor between the two cases is that in the Jacobson case, the loaning employer did not retain any significant control over the loaned employee and it was the loaned employee who was injured by the third party.
Labor Pool's customers also have certain elements of control over the employee. For example, a customer may request a certain employee (a request not binding on Labor Pool) or it may refuse to utilize the services of any individual sent by Labor Pool....
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