Jones v. Halvorson-Berg

• Decision Date: 16 March 1993
• Docket Number: HALVORSON-BERG,No. 10954-2-III,10954-2-III
• Citation: 847 P.2d 945,69 Wn.App. 117
• Court: Washington Court of Appeals
• Parties: David L. JONES and Kathleen V. Jones, husband and wife, and their marital community, Respondents, v., a joint venture of H. Halvorson, Inc., a Washington corporation; Chris Berg, Inc., a Washington corporation; W.A. Botting Plumbing and Heating Company, Inc.; and Washington State University, a Washington State Agency, Defendants, Flour City Architectural Metals Corp., d/b/a Palenque East Corporation, a foreign corporation, Appellant.

Page 117

69 Wn.App. 117

847 P.2d 945

David L. JONES and Kathleen V. Jones, husband and wife, and their marital community, Respondents, v. HALVORSON-BERG, a joint venture of H. Halvorson, Inc., a Washington corporation; Chris Berg, Inc., a Washington corporation; W.A. Botting Plumbing and Heating Company Inc.; and Washington State University, a Washington State Agency, Defendants Flour City Architectural Metals Corp., d/b/a Palenque East Corporation, a foreign corporation, Appellant.

No. 10954-2-III.

Court of Appeals of Washington Division 3, Panel Three.

March 16, 1993.

Reconsideration Denied April 5, 1993.

Michael J. McMahon, Raymond F. Clary, Etter & McMahon, Spokane, for appellant.

Ross P. White, Gregory J. Arpin, John R. Layman, Layman, Loft, Arpin & White Law Firm, Spokane, for respondents.

MUNSON, Judge.

David Jones was injured when he slipped and fell while carrying a window at a construction site. A jury found Flour City Architectural Metals Corporation, a subcontractor, liable for his injuries and awarded damages. Flour City appeals, assigning error to the court's: (1) determination as a matter of law that Mr. Jones was not a loaned servant of Flour City based on lack of consent and control; (2) refusal to instruct the jury that the subcontractor's control over the work place is an element of its liability; (3) admission of lay opinion testimony and a videotape; (4) comments on the evidence and lack of impartiality; and (5) imposition of CR 11 sanctions.

On March 9, 1981, David Jones was hired as a general laborer by Halvorson-Berg, the general contractor, to work on the Wagner Hall remodeling at Washington State University. Flour City, a subcontractor, was responsible for manufacturing and installing the windows in Wagner Hall.

Delivery of the windows to the site was delayed. Once the windows arrived, Richard Benzel, Halvorson-Berg's field superintendent, agreed to help Flour City by providing two laborers to unload windows from a trailer-truck and carry them to the installation locations. On March 21, Mr. Benzel directed Peter Lazzarini, Halvorson-Berg's foreman, and Mr. Jones to the truck to unload the windows.

Based on Mr. Benzel's decision before Flour City arrived at the site, the Flour City truck was parked 30 or 40 feet from the front steps of the building. The path from the truck to the steps was covered with dirt and pea gravel. Mr. Lazzarini testified it would have been impossible to clean up all the gravel without paving the entire area.

Neither Mr. Lazzarini nor Mr. Jones had carried this type of window before. The windows were large and cumbersome, weighing over 200 pounds each and were carried by their attached handles. No equipment was provided by Flour City for carrying the windows. Mr. Benzel did not give any instructions on the method of carrying the windows. Flour City's superintendent, Robert Shilts, told Mr. Lazzarini where to take the windows; the parties dispute whether he instructed on safety procedures or methods of carrying. Mr. Lazzarini and Mr. Jones physically lifted the windows down off the truck, carried them by hand to the building and up 13 steps to the main level and then to one of four levels for installation.

On the fourth day of carrying windows, Mr. Jones slipped on the pea gravel while carrying a window, injured his back and was unable to continue working. Since then he has undergone two back surgeries and is permanently disabled.

Mr. Jones brought a negligence action against several parties, including Flour City. ¹ Trial was held in May 1986. In a special verdict, the jury found Flour City negligent but not the proximate cause of injury. A new trial was granted on a motion alleging jury misconduct. In April 1991, after a second trial, the jury returned a verdict against Flour City, awarding Mr. Jones damages. This appeal followed.

LOANED SERVANT

The trial court decided as a matter of law, after hearing arguments concerning lack of consent and right to control, that Mr. Jones was not Flour City's "loaned servant" and that Washington workers' compensation law did not bar his pursuit of a common law remedy against Flour City. Flour City contends this was a factual issue for the jury. Normally the determination of "loaned servant" status is a factual issue. Nyman v. MacRae Bros. Constr. Co., 69 Wash.2d 285, 288, 418 P.2d 253 (1966). A trial court may not rule as a matter of law on this issue if "substantial evidence [exists] in the record upon which reasonable minds could differ". Nyman, at 288, 418 P.2d 253; see also Erickson Paving Co. v. Yardley Drilling Co., 7 Wash.App. 681, 686, 502 P.2d 334 (1972).

An employee may become the loaned servant of another

"by submitting himself to the direction and control of the other with respect to a particular transaction or piece of work ... However, such a relation between the borrower and the servant is not established unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master, and unless the lender surrenders and the borrower assumes the power of supervision and control."

Fisher v. Seattle, 62 Wash.2d 800, 805, 384 P.2d 852 (1963) (quoting 56 C.J.C., Master and Servant § 2(d)(2)); see also Novenson v. Spokane Culvert & Fabricating Co., 91 Wash.2d 550, 553, 588 P.2d 1174 (1979). ² Restatement (Second) of Agency § 227, comments a and c (1958) are in accord and further state:

[Whether an employee is a loaned servant] is a question of fact in each case.

... Many of the factors stated in Section 220 [are useful in this determination] ... Thus a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist.

The trial court and Mr. Jones rely on 1C A. Larson, Workmen's Compensation Law § 48.11-.12 (1986) for the proposition the consent must be "deliberate and informed", consistent with the general principle that " '[c]ommon-law rights and remedies are not lost by stumbling unawares into a new contractual relation. There can be no unwitting transfer from one service to another.' " Fisher, 62 Wash.2d at 806, 384 P.2d 852 (quoting Murray v. Union Ry. Co., 229 N.Y. 110, 127 N.E. 907 (1920)).

Fisher, 62 Wash.2d at 805-06, 384 P.2d 852, states the employment contract "cannot be thrust upon the servant without knowledge or consent.... He must understand that he is submitting himself to the control of a new master." The focus of the inquiry, therefore, should be on whether the employee understood he was submitting "to the control of a new master", not on whether the employee understood he was giving up his legal rights under workers' compensation law.

At trial, Mr. Jones admitted he was "loaned" to and worked for Flour City; he testified Mr. Benzel, the Halvorson-Berg field superintendent, told him someone from the window company would tell him what to do and left; and Mr. Shilts, Flour City's superintendent, later instructed Mr. Lazzarini, in Mr. Jones' presence, to pack the windows upstairs. Conflicting with this was the testimony of Mr. Lazzarini, Halvorson-Berg's foreman, who testified he remained Mr. Jones' immediate supervisor during the unloading. Mr. Shilts testified he went through Mr. Lazzarini and did not talk directly to Mr. Jones. This constitutes substantial conflicting evidence on the consent issue.

In deciding the control issue, the following factors indicate a master and servant relationship: "an agreement for close supervision or de facto close supervision of the servant's work;" unskilled labor; tools supplied by the employer; payment by time not the job; regular employment over a considerable time; employment in a specific area; regular business of the employer; community custom; belief by the parties there is a master and servant relationship; and an agreement the work is nondelegable. Restatement (Second) of Agency § 220, comment h, at 489 (1958).

Here, there is evidence Flour City was responsible for the close supervision of the unskilled labor provided by Halvorson-Berg; Halvorson-Berg back charged Flour City for Mr. Jones' hourly wage; the job continued several days; and unloading windows was a part of Flour City's regular business.

The evidence indicates Flour City's right to control the unloading of the windows. Mr. Shilts testified his responsibility as Flour City's job superintendent included assessing the job site for the best way to handle the windows, meeting and instructing unloading laborers, and looking out for their safety. He also testified he met once with Mr. Jones and Mr. Lazzarini, giving Mr. Lazzarini a blueprint with the location for the windows, instructing on safety procedure and how to carry the windows by the built-in handles. Mr. Benzel testified Mr. Shilts was responsible for planning the manpower needs of off loading and installing the windows and he would have deferred to the glass manufacturer's method of unloading the windows.

This constitutes substantial conflicting evidence on the right to control. Thus, the trial court should have submitted the issues of consent and control, under proper instructions, to the jury. The case is reversed and remanded for a new trial.

Because of the remand, we consider other assigned errors, some of which may recur.

SUBCONTRACTOR LIABILITY

Flour City contends the trial court erroneously gave instruction 10, ³ without including an instruction that Flour City's control of the work site is a condition of its liability. Flour City's theory of the case was Halvorson-Berg, the general contractor, controlled the safety of the work place and Mr. Jones was contributorily negligent.

Jury instructions are adequate if, read as a whole, they allow argument of the party's theory of the case, are not misleading, and properly inform the trier of fact of the applicable law....