Hill v. Six Flags Over Georgia, Inc.

• Decision Date: 03 October 1980
• Docket Number: No. 59591,59591
• Citation: 155 Ga.App. 457,270 S.E.2d 914
• Parties: HILL v. SIX FLAGS OVER GEORGIA, INC.
• Court: Georgia Court of Appeals

Page 914

270 S.E.2d 914

155 Ga.App. 457

HILL v. SIX FLAGS OVER GEORGIA, INC.

No. 59591.

Court of Appeals of Georgia.

Argued March 12, 1980.

Decided July 16, 1980.

Rehearing Denied July 30, 1980.

Certiorari Granted Oct. 3, 1980.

Bobby Lee Cook, Jr., Summerville, for appellant.

Ronald L. Reid, Charles T. Huddleston, Vickie J. Cheek, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This case involves the grant of a motion for summary judgment with reference to whether or not an iron worker was a borrowed servant of Six Flags Over Georgia, Inc. Plaintiff in this case was an iron worker who was hurt on the job at Six Flags on the "Mind Bender" amusement ride. This tort action is against Six Flags for an injury allegedly resulting from the negligence of employees of this defendant.

On motion for summary judgment the iron worker-plaintiff testified (by affidavit) that his union would not allow its individual members to work for anyone other than a licensed contractor who had signed an employment agreement with its local union. Six Flags was not on the approved list of contractors. Six Flags had employed Jake Heaton Erecting Company, Inc., which had a contract with the union, to send out two iron workers who were certified welders. Plaintiff contends, and testified by deposition and by affidavit, that he was hired by "Jake Heaton Erectors" and sent by Heaton to work at Six Flags, along with his "foreman," one "Buster Newman," to do any needed job assignments given by the Six Flags supervisor "to Buster Newman, my foreman, and Newman would then give me the work assignments. I did not have to receive or obey any orders from Six Flags employees or supervisors."

The trial court apparently granted defendant's motion for summary judgment on the ground that plaintiff was a borrowed servant whose exclusive remedy lies under the provisions of the Workers' Compensation Act. See Code Ann. § 114-103 (Ga.L.1972, pp. 929, 930; 1974, pp. 1143, 1144); U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 196 S.E.2d 133. Plaintiff deposed he has "received Workers' Compensation payments through the insurer for Jake Heaton Erectors." Plaintiff appeals. Held :

As an issue of material fact remains, summary judgment should not have been granted, albeit the preponderance of the evidence may show these iron workers/welders were borrowed servants and probably violative of the union contract. The plaintiff was either working under the foreman or he was not. Further, the evidence shows that all payroll, social security, income tax withholdings, etc., were prepared by Jake Heaton Erecting Company, Inc., and these were the employees of the steel erecting company. Certainly, if the steel erector's employees did not perform the contract between Six Flags and Heaton, it would be breached. But an issue remains as to whether or not they were borrowed servants or if Newmon ("Buster Newman"), the other employee, was the "foreman." On summary judgment plaintiff's evidence may not be disregarded even though the preponderance of the evidence might show otherwise at a jury trial.

This case is very similar on its facts to that of Georgia-Pacific Corp. v. Corbin, 137 Ga.App. 37, 40-41, 222 S.E.2d 862, involving an alleged borrowed servant although that case was affirmed after jury determination. This court, at page 40, 222 S.E.2d at page 865, concluded that there was sufficient evidence "from which a jury could find that there was no assent on plaintiff's part necessary to the creation of a valid contract of employment between himself and ... (the alleged new employer) ... and that he was hired ... (by another)." That decision goes on to hold at page 41, 222 S.E.2d at page 865 that the plaintiff is not bound by a secret agreement between the so-called alleged employers in making him a borrowed servant and further holds that "notice to the employee is necessary before another can claim him as a servant." Clearly, plaintiff's evidence here is that he was never notified that he was a borrowed servant. On the contrary, his testimony is that he worked under a foreman of "Jake Heaton Erectors." Further, in Flowers v. U. S. S. Agri-Chemicals, 139 Ga.App. 430, 431(2), 228 S.E.2d 392, one of the tests for the determination of a borrowed servant is that the general master must have no such control over the servant at the time in question. The evidence is in conflict here as to whether the general master, Jake Heaton Erecting Company, Inc., was always in control of this employee, if you believe the testimony of the plaintiff.

Construing the testimony mostly strongly in favor of the party opposing the motion for summary judgment here, that is, the plaintiff, it is quite clear that an issue of material fact remains as to whether plaintiff is entitled to maintain his suit against Six Flags Over Georgia, Inc. See Holland v. Sanfax Corp., 106 Ga.App. 1(1), 4, 126 S.E.2d 442; Simpson v. Dotson, 133 Ga.App. 120, 122(4), 210 S.E.2d 240; Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552-553, 181 S.E.2d 866; Whitehead v. Capital Automobile Co., 239 Ga. 460, 462, 238 S.E.2d 104).

Judgment reversed.

DEEN, C. J., QUILLIAN, P. J., and SHULMAN, BANKE, BIRDSONG, CARLEY and SOGNIER, JJ., concur.

SMITH, J., dissents.

SMITH, Judge, dissenting.

I believe the trial court was absolutely correct in granting summary judgment to appellee. I therefore respectfully dissent.

The uncontroverted facts are as follows: Appellant, a certified welder, was hired by Jack Heaton Erectors to work at Six Flags with another Heaton employee, Henry Buster Newmon. Cecil Hale, a Heaton company supervisor introduced appellant and Newmon to Nelson Boyd, mechanical engineer at Six Flags. Boyd had an agreement with Heaton Erectors under which appellant and Newmon were to work under the supervision of Boyd or one of his designees. The agreement placed control of the day to day work assignments in the hands of Six Flags. Appellant and Newmon reported directly to Six Flags, and Boyd or his designee had the power to discharge appellant or Newmon from work at Six Flags. Heaton company supervisor Hale made periodic checks with Six Flags to determine whether appellant and Newmon were performing in a satisfactory manner. On the date of the injury, appellant and Newmon were welding in the Six Flags "shop." However, one of the Mind Bender ride trains had become stuck in the "barrel" portion of the Mind Bender. Appellant and Newmon were instructed to cease welding and ride over to the Mind Bender structure, where they were to help the Six Flags crew dislodge the ride train. Appellant and Newmon were instructed to climb the Mind Bender structure and assist in rigging a cable to the ride train. A Six Flags employee assisted them on the structure. David Bryan, from his position on the ground, supervised and directed the entire operation. While appellant was on the structure, a cable snapped, causing him to fall and injure himself.

"The real test by which to determine whether a person was acting as the servant of another at the time of the infliction of an injury by him is to ascertain whether at the particular time when the injury was inflicted he was subject to the other person's orders and control, and was liable to be discharged from the particular employment for disobedience of orders or misconduct. Brown v. Smith, 86 Ga. 277 (12 S.E. 411), 22 Am.St.Rep. 456. 'One person may be taken to have been the servant of another in respect of a given transaction, although he did not occupy that position for all purposes. In order to establish the relationship, it is merely necessary to show that he was a servant as regards the...