Mumford & Miller Concrete, Inc. v. Burns

• Court: Supreme Court of Delaware
• Writing for the Court: HARTNETT
• Citation: Mumford & Miller Concrete, Inc. v. Burns, 682 A.2d 627 (Del. 1996)
• Decision Date: 21 May 1996
• Docket Number: No. 411,1995,411,1995
• Parties: MUMFORD & MILLER CONCRETE, INC., a corporation of the State of Delaware, Defendant Below, Appellant, v. Vincent BURNS, Plaintiff Below, Appellee. . Submitted:

Page 627

682 A.2d 627

MUMFORD & MILLER CONCRETE, INC., a corporation of the State of Delaware, Defendant Below, Appellant, v. Vincent BURNS, Plaintiff Below, Appellee.

No. 411,1995.

Supreme Court of Delaware.

Submitted: May 21, 1996.

Decided: July 1, 1996.

Rehearing Denied July 30, 1996.

Court Below: Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 92C-10-271.

AFFIRMED.

Before HOLLAND, HARTNETT and BERGER, JJ.

ORDER

HARTNETT, Justice.

This 1st day of July 1996, it appears to the Court that:

(1) Defendant-below Appellant, Mumford & Miller Concrete Inc. ("Mumford & Miller"), appeals rulings made by the Superior Court in connection with a jury trial that concluded with a verdict for Plaintiff-below Appellee, Vincent Burns ("Burns"). Specifically, Mumford & Miller asserts that the Superior Court erroneously denied its pre-trial motion for summary judgment and its two post-trial motions for a new trial. We find no error and affirm.

(2) Burns was employed by B & R Construction Co. ("B & R") as a cement mason. B & R leased from Mumford & Miller a concrete pump truck with operator in connection with the pouring of a concrete floor. On October 29, 1990, during the pumping of the concrete, a hose struck and injured Burns as it fell from its connection with the pump truck. Burns subsequently brought suit against Mumford & Miller.

(3) Prior to trial, Mumford & Miller moved for summary judgment, alleging, primarily, that the pump truck operator was an employee of B & R under the borrowed servant doctrine and that, therefore, both Burns and the pump truck operator were fellow employees of B & R. In such a case, Burns' exclusive remedy would be a claim for workers' compensation. Burns cross-moved for summary judgment. The Superior Court denied both motions and left the factual issue of the applicability of the borrowed servant doctrine to the jury.

(4) The Superior Court properly denied Mumford & Miller's summary judgment motion. The denial of a motion for summary judgment is reviewed de novo. Alfieri v. Martelli, Del.Supr., 647 A.2d 52, 53 (1994). The standard for granting summary judgment is high. Summary judgment should only be granted where the moving party establishes the absence of any genuine issue of material fact. Moore v. Sizemore, Del.Supr., 405 A.2d 679, 680-81 (1979).

(5) Under the borrowed servant doctrine "an employee, with his consent, may be loaned by his general employer to another to perform specific services, and ... in the course of and for the purpose of performing such services he may become the employee of the specific employer rather than the employee of the general employer." Richardson v. John T. Hardy & Sons, Inc., Del.Supr., 182 A.2d 901, 902 (1962). "Whether or not a loaned employee becomes the employee of the one whose immediate purposes he serves is always a question of fact, and depends upon whether or not his relationship to the specific employer has the usual elements of the employee status." Id.

The applicability of the borrowed servant doctrine depends on the nature of the conduct at issue. The important question is "whether or not [the employee] was acting in the business of and under the direction of the general or the specific employer." Richardson, 182 A.2d at 903. The Richardson case provides a useful example of the distinction between actions taken on behalf of the general employer and those done for the specific employer. In that case, an employee was using the general employer's backhoe to dig a ditch. He piled the earth he removed in an area designated by the specific employer. This pile collapsed causing injury to the plaintiff. After finding that the negligent act was the piling of the dirt, not the operation of the backhoe, the court looked to the borrowed servant doctrine. Id. The court noted, however, that if the negligent operation of the backhoe itself had caused the injury, "undoubtedly" that negligence would have been imputed to its owner, the general employer. Id.

(6) In the present case the only purported negligence relates to the operation of the pump truck itself. No facts were presented from which the trial judge could have conclusively determined that the pump truck operator was acting as the employee of B & R. Consequently, the entry of a summary judgment in favor of Mumford & Miller was not warranted. As Burns' injuries allegedly resulted from the faulty or careless operation of the pump truck, the negligence of its operator may have been imputable to Mumford & Miller, the owner of the pump truck, as a matter of law. See Brittingham v. American Dredging Company, Del.Supr., 262 A.2d 255, 256 (1970) (acknowledging the presumption in Delaware that the owners of equipment are responsible for its control); Mumford & Miller Concrete, Inc. v. Cook, Del.Supr., No. 126, 1995, at 4-5, Hartnett, J. (Dec. 7, 1995) (ORDER); Restatement (Second) of Agency § 227, at 501 (1957) ("A continuance of the general employment is ... indicated in the operation of a machine where the general employer rents the machine and a servant to operate it...."). The pump truck operator either was not acting as the borrowed servant of B & R when performing the acts which resulted in injury to Burns, as a matter of law, or there was a question of fact whether he was a borrowed servant. See Richardson, 182 A.2d at 903. The Superior Court, therefore, properly denied the pre-trial cross-motions for summary judgment.

(7) At the trial Burns testified that in an attempt to regain his $38.00 per hour job, he returned to work in February of 1992, against his doctor's advice. Burns also testified at the trial that, due to financial problems and although he experienced great pain...