Evans v. Webster

Decision Date05 July 1991
Docket NumberNo. 89CA2026,89CA2026
Citation832 P.2d 951
PartiesB. Maxine EVANS, Plaintiff-Appellee, v. Myrle WEBSTER, Defendant-Appellant. . IV
CourtColorado Court of Appeals

Bartholomew & Cristiano, Frank V. Cristiano, Denver, for plaintiff-appellee.

White and Steele, P.C., Sandra Spencer Coleman, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Myrle Webster, appeals the judgment entered on a jury verdict in favor of plaintiff, B. Maxine Evans. We reverse and remand.

Plaintiff was injured when she fell while attempting to secure the garage door at the defendant's home. At the time, plaintiff was working for the defendant as a personal attendant pursuant to a contract between defendant and a temporary help agency, Kelly Assisted Living Services. Plaintiff sustained severe injuries as a result of the fall and could no longer work.

Plaintiff filed for, and received, workers' compensation benefits for her injuries through Kelly. She also instituted this negligence suit to recover damages against defendant for the same injuries. The suit was based on the theory that she was not defendant's employee and, therefore, was not limited to a remedy in the nature of workers' compensation.

At trial, defendant moved for a direct verdict claiming the evidence clearly established that the plaintiff was a loaned employee. The court denied the motion. It found there was no credible evidence of an employment relationship between plaintiff and defendant. According to the trial court, the uncontradicted evidence demonstrated that Kelly was the sole employer of plaintiff as a matter of law. It reasoned that defendant was not a borrowing employer pursuant to the provision of the Workers' Compensation Act now codified as § 8-41-102, C.R.S. (1990 Cum.Supp.), and thus, it concluded that plaintiff's negligence action was not barred.

The jury determined defendant was negligent and returned a verdict for plaintiff in the amount of $180,000. This appeal followed.

The record reveals the following facts as being undisputed. Defendant was an elderly widow who required the assistance of a personal attendant. At the urging of a close friend, she contacted Kelly. Kelly was in the business of providing home health aides and temporary live-in companions to its clientele. When a client requested a Kelly worker, Kelly would select a qualified individual and assign the worker to the client's home. Plaintiff was one such worker.

On September 14, 1987, an agreement was reached between Kelly and defendant pursuant to which Kelly agreed to furnish the services of a home health aide. The agreement provided that the aide would be employed to work in the defendant's home eight to ten hours a day, six days a week. No term of employment was specified, though both parties regarded the relationship as permanent or of indefinite duration.

The agreement also incorporated instructions originating with defendant. These were specific descriptions of the aide's assigned duties noted in writing on the agreement. Kelly made no changes in these instructions but merely passed them on verbatim to the aide. According to the instructions, the aide's job was to provide companionship and to assist in shopping and light housekeeping work. Responsibility also fell upon the aide to ensure defendant's safety in the home. The aide was authorized to drive defendant's car and use whatever of defendant's tools, utensils, and other household implements were needed in performing her tasks.

The total charge for the home health aide services was $93 per day to be paid by defendant to Kelly. The aide was paid a fixed amount by Kelly according to the number of hours worked for defendant. The amount charged by Kelly for the aide's services was at a rate greater than the amount Kelly paid the aide. The extra charge covered, besides Kelly's profit, social security, such expenses as Kelly's payment of workers' compensation, and unemployment insurance for the benefit of the aide.

Defendant was free to utilize and direct the aide's performance of the contract as the particular situation demanded, and Kelly reserved to itself only the right to prohibit the performance of certain tasks requiring special skills or competence. Kelly would intervene in the aide's performance of her duties only at defendant's request. If defendant determined that the aide was not performing as agreed or if she was dissatisfied with the aide for any other reason, the defendant could unilaterally terminate the aide and/or cancel the contract with Kelly. Finally, the agreement did not prohibit the aide from becoming defendant's employee, nor did it give Kelly the right to replace or reassign the aide.

Pursuant to the agreement, Kelly selected plaintiff and assigned her to defendant's account. Plaintiff assumed her duties, and on the first day at work she was injured.


Defendant contends that the trial court erred in denying her motion for a directed verdict. She argues that she was plaintiff's special employer under the "loaned servant" doctrine and, therefore, was immune from tort liability by virtue of the statute now codified as § 8-41-102, C.R.S. (1990 Cum.Supp.) We agree.

In evaluating motions for directed verdict, we must determine whether there is any evidence of sufficient probative force to support the trial court's findings. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). We do so by considering all evidence in the light most favorable to the party against whom the motion is directed and by indulging every reasonable inference that can be legitimately drawn from the evidence in that party's favor. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984).

A motion for directed verdict should be granted only in the clearest of cases when the evidence is undisputed and it is plain no reasonable person could decide the issue against the moving party. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778 (1967). If there is no conflicting evidence with respect to the particular issue raised by the motion for directed verdict and the only concern is the legal significance of undisputed facts, then the appellate court may make an independent determination of the issue. See Weed v. Monfort Feed Lots, Inc., 156 Colo. 577, 402 P.2d 177 (1965); Romero v. Liquor & Beer Licensing Board of Pueblo, 540 P.2d 1152 (Colo.App.1975).

Here, the trial court decided the underlying employment issue as a matter of law. It took great pains to say that only one inference was possible from the evidence presented, namely, that plaintiff was solely the employee of Kelly and that she was not the employee of the defendant. The trial court based its ruling on the assumption that the evidence was undisputed, and the record bears this out. The dispositive question thus becomes whether the trial court correctly decided this legal issue.

A "special employment" relationship is deemed to exist whenever an employer provisionally assigns to another employer the services of an employee who thereby surrenders to the borrowing employer the right of control over the employee's actions. Restatement (Second) of Agency § 227 (1958). That a worker can simultaneously be the employee of two persons is well-recognized in the law. Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909).

This common law rule applies to cases arising under the Workers' Compensation Act and allows an employee to be simultaneously in the general employment of one employer and in the special employment of another, provided the employee understands that he or she is submitting to the control of the special employer. See § 8-41-303, C.R.S. (1990 Cum.Supp.); Continental Sales Corp. v. Stookesberry, 170 Colo. 16, 459 P.2d 566 (1969).

In this dual employment situation, the employee's only remedy for an injury sustained while in the course of employment with the borrowing employer is through workers' compensation. A separate tort action against the special employer is barred. Section 8-41-102, C.R.S. (1990 Cum.Supp.).

Courts have traditionally considered several criteria to be relevant in the determination whether a special employment relationship exists. These criteria include: (1) whether the borrowing employer has the right to control the employee's conduct; (2) whether the employee is performing the borrowing employer's work; (3) whether there was an agreement between the original and borrowing employer; (4) whether the employee has acquiesced in the arrangement; (5) whether the borrowing employer had the right to terminate the employee; (6) whether the borrowing employer furnished the tools and place for performance; (7) whether the new employment was to be for a considerable length of time; (8) whether the borrowing employer had the obligation to pay the employee; and (9) whether the original employer terminated its relationship with the employee. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969); 1C A. Larson Workmen's Compensation Law § 48.00, et seq. (1990).

Of the nine factors, number four, the consent of the employee, is of critical importance, and, when coupled with element one, control over the work activities of the employee and element five, the concomitant power to terminate the relationship, would seem to be decisive. Section 8-41-303, C.R.S. (1990 Cum.Supp.); see Faith Realty & Development Co. v. Industrial Commission, 170 Colo. 215, 460 P.2d 228 (1969); Dana's Housekeeping v. Butterfield, 807 P.2d 1218 (Colo.App.1990).

Since the only work to be done was that of Kelly's clients, plaintiff must necessarily have agreed to work for defendant. The contract between defendant and Kelly specifically informed plaintiff that she would be assigned to work at the defendant's home and apprised her of the defendant's name and address. Plaintiff could have declined to accept the assignment if she chose. Furthermore, since plaintiff worked for a...

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