Decision Date03 March 2004
Docket NumberNo. A03A2335.,A03A2335.
Citation266 Ga. App. 42,596 S.E.2d 215
CourtGeorgia Court of Appeals


Savage, Turner, Pinson & Kaisman, Brent J. Savage, Christopher D. Britt, Kathryn H. Pinckney, Savannah, for appellant.

Oliver, Maner & Gray, Patricia T. Paul, Jeffery L. Arnold, Savannah, for appellee. RUFFIN, Presiding Judge.

Jeff Gibson was injured when he was shocked while working on a construction site. Gibson sued Tim's Crane & Rigging, Inc. ("Tim's Crane"), alleging that the negligence of its crane operator caused the incident. Tim's Crane moved for summary judgment, asserting that it could not be held liable because the crane operator was a "borrowed servant" of the general contractor. The trial court agreed, granting the motion for summary judgment. On appeal, Gibson contends that the trial court erred in concluding, as a matter of law, that the crane operator was a borrowed servant. Gibson also contends that the trial court erred in permitting Tim's Crane to raise the borrowed servant defense, which was not included in the pre-trial order. For reasons that follow, we affirm in part and reverse in part.

On appeal from the grant of summary judgment, we review the evidence de novo to determine the existence of any issue of material fact.1 Summary judgment is proper

where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.2

Viewed in this manner, the record demonstrates that on February 12, 2002, Pinkerton & Laws, Inc. ("Pinkerton"), as the general contractor for a construction site, entered into a contract with Tim's Crane. The agreement provided, in pertinent part, that the parties expressly agreed

that the equipment and all persons operating the equipment including [Tim's Crane's] employees are under the exclusive jurisdiction, supervision and control of [Pinkerton] under this lease. It shall be the duty of [Pinkerton] to give specific instructions and directions to all persons operating the leased equipment. [Pinkerton] specifically agrees that there is a complete surrender by [Tim's Crane] of control with regard to the aforementioned personnel and equipment and not simply a division of control. This lease is upon the agreement of the parties that no personnel will be replaced or substituted by [Tim's Crane] except at the direction of and with the approval of [Pinkerton] and that [Pinkerton] shall have the right to control and shall be deemed to have exercised that right as to all details or operation of the equipment and personnel furnished.

Pursuant to this agreement, Tim's Crane employee David Fischer operated a crane at the construction site. According to Fischer's deposition testimony, when he arrived at the job site, he was concerned about nearby power lines, and he questioned a Pinkerton employee about them. Fischer then walked around the construction site to determine a safe distance from which he could operate the crane, which he testified was ten feet. Pinkerton wanted to use its own rigging on the crane, and Fischer told Pinkerton's employees to bring the rigging "to the operator's side" of the crane so that the load would not swing toward the power line.

Fischer began using the crane to lift the rebar from a truck and lower it to the ground. Gibson, along with another worker, was supposed to steady the rebar as it was being lowered. As the crane was lowering the load, it passed too close to the power line, and the current "arced" to the rebar, shocking Gibson, who was touching the metal.

Gibson subsequently filed suit against Tim's Crane, asserting that it was liable for Fischer's negligence under the theory of respondeat superior. Tim's Crane moved for summary judgment, which the trial court granted. Specifically, the trial court found as a matter of law that Fischer was a borrowed servant of Pinkerton. In reaching its conclusion, the trial court relied heavily on the contract between Pinkerton and Tim's Crane, which assigned control to Pinkerton. Gibson moved the trial court to reconsider its ruling, noting that Tim's Crane had not raised the borrowed servant defense in the pretrial order. The trial court denied Gibson's motion and permitted Tim's Crane to amend the pretrial order. This appeal ensued.

1. According to Gibson, the trial court erred in concluding that Fischer was a borrowed servant of Pinkerton. Under this exception to respondeat superior, "`[i]f a master lends his servants to another then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other.'"3

In order for an employee to be considered the borrowed servant of a special master, the evidence must establish the following: "(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control[;] and (3) the special master had the exclusive right to discharge the servant."4 Under the first prong, the master must have complete control over the employee's actions at the time of the alleged injury.5

Here, the evidence demonstrates that Fischer perused the job site to determine how to operate the crane safely given the power lines, and he instructed Pinkerton's employees...

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6 cases
  • Coe v. Carroll & Carroll Inc.Coe v. Griffin Contracting Inc.
    • United States
    • Georgia Court of Appeals
    • October 17, 2011 [the bailor] except at the direction of and with the approval of [the hirer].” (Punctuation omitted.) Gibson v. Tim's Crane & Rigging, 266 Ga.App. 42, 43, 596 S.E.2d 215 (2004). See also Montgomery Trucking Co. v. Black, 231 Ga. at 213–214, 200 S.E.2d 882 (A truck driver was not a borrow......
  • Fields Bros. Gen. Contractors v. Ruecksties
    • United States
    • Georgia Court of Appeals
    • November 30, 2007
    ...1, supra. 19. Baumann, supra at 528-529, 532 S.E.2d 468. 20. Id. at 529, 532 S.E.2d 468. 21. See id. 22. Gibson v. Tim's Crane & Rigging, 266 Ga.App. 42, 45(2), 596 S.E.2d 215 (2004) (punctuation and footnote omitted), aff'd in part and rev'd on other grounds, Tim's Crane & Rigging v. Gibso......
  • Cramp v. Georgia-Pacific Corp.
    • United States
    • Georgia Court of Appeals
    • March 3, 2004
    ... ... Georgia-Pacific Corporation and Unisource Worldwide, Inc. for fraud. The trial court granted Georgia-Pacific's and ... ...
  • Tim's Crane & Rigging, Inc. v. Gibson
    • United States
    • Georgia Supreme Court
    • October 25, 2004
    ...control was insufficient to establish as a matter of law that Fischer was a borrowed servant. [Cits.] Gibson v. Tim's Crane & Rigging, 266 Ga.App. 42, 44(1), 596 S.E.2d 215 (2004). This Court granted certiorari to consider whether Fischer's certification as a crane operator and his communic......
  • Request a trial to view additional results

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