Providence v. Roger Williams Med. Ctr., C.A. No. PC 07-1450
| Decision Date | 10 March 2011 |
| Docket Number | C.A. No. PC 07-1450 |
| Parties | PROVIDENCE, SC. JOSEPH D. APOSTOLICO, v. ROGER WILLIAMS MEDICAL CENTER, v. AUREUS RADIOLOGY, LLC. |
| Court | Rhode Island Superior Court |
DECISION
Defendant and Third Party Defendant Aureus Radiology, LLC ("Aureus") renews its motion pursuant to Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure in this negligence action asserted against it by Plaintiff Joseph D. Apostolico ("Plaintiff") and Third Party Plaintiff Roger Williams Medical Center ("RWMC"). Finding no genuine issues of material fact, this Court holds that Aureus is entitled to judgment as a matter of law.
On June 5, 2006, Plaintiff experienced chest pain and sought treatment at RWMC. An emergency room physician at RWMC ordered a computer tomography ("CT") scan of Plaintiff's chest with contrast, a liquid dye that is injected into the body before a CT scan or x-ray to help increase the detail in internal images of the body.
CT scan technician Lindsay Shapiro ("Ms. Shapiro") prepared Plaintiff for the CT scan by performing the contrast injection. At the time of performing Plaintiff's contrastinjection, Ms. Shapiro was a "traveling" CT scan technician employed by Aureus and on loan to RWMC pursuant to a client agreement (the "Client Agreement"). See RWMC Ex. E: Client Agreement. Immediately following the injection, Plaintiff alleges that he experienced severe pain, burning, and swelling of his hand and arm.
Plaintiff filed the instant matter with the Superior Court on March 19, 2007, alleging a single count of negligence against RWMC. (Compl. ¶¶ 6, 7.) On September 7, 2007, RWMC filed a third party complaint against Aureus, alleging that Ms. Shapiro acted as Aureus' servant in conducting the contrast injection at issue; therefore, RWMC contended, Aureus was vicariously liable for any alleged negligence of Ms. Shapiro under the doctrine of respondeat superior. (Third Party Compl. ¶¶ 3, 5.) On February 21, 2008, Plaintiff filed an amended complaint adding a second count of negligence against Aureus.
On September 10, 2010, the Court, Vogel, J., entered a scheduling order reiterating the earlier denial based upon "a legal issue of borrowed servant" and establishing a timeline for the parties to conduct additional discovery as to this limited legal issue.
On January 7, 2011, Aureus filed the instant renewed motion for summary judgment. In support of its renewed motion, Aureus submitted the affidavit of its General Counsel, Natalie Nowak, in which Ms. Nowak testified that "Aureus exercises no control or supervision over the HC Professional while he/she is performing services for the Client." (Affidavit of Natalie Nowak ("Nowak Aff.") ¶ 6.) RWMC filed an objection to Aureus' renewed motion. RWMC avers that Aureus erroneously limited the scope of its renewed motion to the finite issue of the role of the staffing supervisor and that newly acquired deposition testimony from Ms. Nowak and Justin Mahr, Manager of Client Relations for Aureus, directly contradicts Ms. Nowak's affidavit.
On a summary judgment motion, this Court reviews the evidence and draws all reasonable inferences in the light most favorable to the non-moving party. Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 669 (R.I. 2004). On such a motion, the Court is to determine only whether a factual issue exists. It is not permitted to resolve any such factual issues. The "purpose of the summary judgment procedure is issue finding, not issue determination." Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I. 2008) (quoting Industrial Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979)). Summary judgment is appropriate if it is apparent that no material issues of fact exist and the moving party is entitled to judgment as a matter of law." Chavers, 844 A.2d at 669.A party opposing a motion for summary judgment " 'carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.' " Id. at 66970 (quoting United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003)).
It is well-settled that, under the doctrine of respondeat superior, an employer is vicariously liable for the acts of its employees. Mainella v. Staff Builders Indus. Services, Inc., 608 A.2d 1141 (R.I. 1992) (citing Morgan v. Lucaski, 581 A.2d 714 (R.I. 1990)). The borrowed servant doctrine, however, provides that under certain circumstances an employer's liability for the acts of its employees may be severed. Mainella, 608 A.2d at 1144 (citing 53 Am.Jur.2d Master and Servant § 415 (1970)); see also Higham v. T.W. Waterman Co., 32 R.I. 578, 80 A. 180 (1911). The Rhode Island Supreme Court first recognized the applicability of the borrowed servant doctrine in Higham v. T.W. Waterman Co., wherein the Supreme Court explained:
"[T]he weight of authority and legal principle is that the servant sent to fulfill his master's contract remains his servant in all matters pertaining to the performance of that contract..., unless by a special arrangement the [servant] is in some or all of these matters placed directly under the control of the [borrowing employer], or unless by the [borrowing employer]'s interference he makes the [servant] his servant as to the particular matter with regard to which he interferes." 32 R.I. at 584, 80 A. at 180.
In this jurisdiction, it is now axiomatic that the "right of control over a borrowed employee is determinative of the question whether he is the servant of the lendingemployer or of the borrowing employer." Agostini, 82 R.I. at 470, 111 A.2d at 539 (citing Higham, 32 R.I. 578, 80 A. 180). As noted by the Higham Court, "[t]he test in all these cases is: Who conducts and supervises the particular work, the doing of which, or the careless and negligent doing of which, causes the injury?"2 Higham, 32 R.I. at 587, 80 A. at 181 (citations omitted).
Before this Court is that very same quintessential borrowed servant question. Here, Aureus argues that it ceded—pursuant to the terms of the Client Agreement—all supervision and control over Ms. Shapiro's work while she was performing her duties as a CT scan technician at RWMC. RWMC, to the contrary, maintains that Ms. Shapiro exercised her own personal judgment while on the job and that RWMC merely gave the direction to Ms. Shapiro that was necessary in order for it to receive the benefit of the Client Agreement. This Court must determine whether as a matter of law Ms. Shapiro's "particular work" remained under the control and supervision of Aureus such that Aureus remained liable for Ms. Shapiro's alleged negligence under the doctrine of respondeat superior. See id. at 587, 80 A. at 181.
"Whether the lent servant is to continue in the general employment of the lending master is ordinarily a question of fact," although it may at times constitute a question of law. Agostini, 82 R.I. at 471, 111 A.2d at 539; J.R. Kemper, Annotation, Borrowedservant rule—Statement of rule; distinction between administrative and medical acts, 29 A.L.R.3d 1065 (1970). "When the facts relied upon to establish the existence of an agency are undisputed, and conflicting inferences cannot be drawn from them, the question of the existence of the agency is one of law for the court." 3 Am.Jur.2d Agency § 352 (1970).
Our Supreme Court has held that "in the absence of evidence to the contrary there is an inference that such general employment [with the lending master] continues so long as the service rendered by the servant is the business entrusted to him by his general employer." Agostin...
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