Ruelas v. Staff Builders Personnel Services, Inc.
| Decision Date | 30 January 2001 |
| Docket Number | No. 2 CA CV 00-0005.,2 CA CV 00-0005. |
| Citation | 199 Ariz. 344,18 P.3d 138 |
| Parties | Billie RUELAS, by her Guardian Ad Litem, Robert Fleming, Plaintiff/Appellant, v. STAFF BUILDERS PERSONNEL SERVICES, INC., a foreign corporation dba Judy's Nurses; ATC Healthcare Services, Inc., a foreign corporation dba Judy's Nurses; and ATC Services Incorporated, a Georgia corporation dba Judy's Nurses, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
Law Office of Carter Morey, by Carter Morey, Linda S. Sherrill, Tucson, for plaintiff/appellant.
Quarles & Brady/Streich Lang, LLC, by Timothy J. Thomason, Kevin D. Quigley, Phoenix, for defendants/appellees.
¶ 1 In the course of receiving an enema while a patient at Pima County's Posada del Sol Health Care Center, appellant Billie Ruelas was abused by nurses provided by appellee Staff Builders.1 On appeal, Ruelas challenges the trial court's grant of summary judgment to Staff Builders on Ruelas's claims against it for vicarious liability, punitive damages, and negligent hiring/retention.2 We affirm because the nurses were lent employees under the control of Posada del Sol while administering the enema and because no genuine issue of material fact exists as to Ruelas's negligent hiring/retention claim.
¶ 2 In reviewing the grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, ¶ 12 (1998). And we independently determine whether there are any genuine issues of material fact and whether the court properly applied the law. Toy v. Katz, 192 Ariz. 73, 85, 961 P.2d 1021, 1033 (1997). ¶ 3 On November 9, 1994, Staff Builders purchased a staffing agency that contracted with Posada del Sol to provide nurses to cover staffing shortages. On November 20, Staff Builders sent several of its nurses to Posada del Sol. Posada del Sol instructed two of those nurses, who frequently worked at the facility, to give Ruelas an enema. During this procedure, the nurses abused Ruelas.
¶ 4 Ruelas claims the trial court erred in finding that the lent employee doctrine precluded Staff Builders' vicarious liability for the nurses' misconduct. A lent employee is employed by a general employer and is "lent" by the general employer to a special employer for certain work. 27 Am.Jur.2d Employment Relationship § 6 (1996). Here, Staff Builders is the general employer that employed the nurses and Posada del Sol is the special employer.
¶ 5 "[A] general employer is vicariously liable for the tortious conduct of a lent employee only if the general employer has control of or the right to control the performance of the lent employee's work." McDaniel v. Troy Design Services Co., 186 Ariz. 552, 553, 925 P.2d 693, 694 (1996). See also Lee Moor Contracting Co. v. Blanton, 49 Ariz. 130, 136, 65 P.2d 35, 37-38 (1937) (). Although both the general and special employer may have some control in different aspects of their relationship with the employee, the focus for liability purposes is on which employer had control of the details of the particular work being done at the time of the injury-causing incident. See McDaniel, 186 Ariz. at 556,
925 P.2d at 697 (); see also Lee Moor, 49 Ariz. at 133, 65 P.2d at 36 () (emphasis added); Restatement (Second) of Agency § 227 cmt. a (1958) (whether general or special employer liable depends on specific act in question). A lent employee, therefore, may be the servant of the general employer as to some acts and of the special employer as to others. See Lee Moor, 49 Ariz. at 135, 65 P.2d at 37; Restatement (Second) of Agency § 227.
¶ 6 In McDaniel, the court's majority held that the general employer's "control over the administrative aspects of [the lent employee's] employment is insufficient to subject [the general employer] to vicarious liability for [the lent employee's] negligence in the performance of his work" when the special employer "exclusively controlled the particular service [the lent employee] performed at [the job site]." 186 Ariz. at 556, 925 P.2d at 697. In that case, the lent employee was employed by a labor broker and had been assigned to work at a special employer's job site pursuant to the labor broker's contract with the special employer. Id. at 554, 925 P.2d at 695. The labor broker was responsible for hiring and firing employees, paying their wages and workers' compensation insurance, requiring their compliance with the special employer's work rules, signing time records, and complying with equal employment opportunity laws. Id. at 555-56, 925 P.2d at 696-97. The labor broker also could reassign employees to other employers. Id. at 555, 925 P.2d at 696. In addition, its regional manager visited the special employer's job site twice a week to resolve employee problems. Id. The court concluded that the lent employee doctrine applied and that summary judgment should have been entered in favor of the general employer, the labor broker.
¶ 7 It is a question of fact whether an employee continues as the general employer's servant or becomes the special employer's servant for a particular act. Lee Moor, 49 Ariz. at 135, 65 P.2d at 37; Restatement (Second) of Agency § 227 cmt. a. But summary judgment should be granted if the party opposing the motion has the burden of proof on an element at trial and has failed to present evidence creating a genuine issue of material fact as to that element. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). And a motion for summary judgment "should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Id. at 309, 802 P.2d at 1008.
¶ 8 Here, Ruelas produced evidence that Staff Builders exercised some administrative control over the nurses it provided to Posada del Sol. For example, under the contract with Posada del Sol, Staff Builders was responsible for ensuring the nurses were licensed and experienced, and for administering minimum competency tests, paying the nurses, providing workers' compensation and liability insurance, and orienting the nurses to Posada del Sol's expectations, fire and disaster program, dress code, and general nursing procedures. Staff Builders was also responsible for evaluating the nurses' performance, disciplining them, and terminating them.
¶ 9 But Ruelas produced no facts to support an assertion that Staff Builders actually controlled or had the right to control the manner in which the nurses gave the enema or performed any aspect of their work at Posada del Sol. Posada del Sol informed Staff Builders' nurses of their responsibilities and supervised Staff Builders' nurses to the same extent as its own nurses. And each of the Staff Builders' nurses involved here frequently worked at the facility. In addition, Posada del Sol could tell Staff Builders that it did not want a particular nurse to return to the facility. Posada del Sol employees also informed Staff Builders of events requiring discipline or termination. Moreover, Staff Builders' evaluations of the nurses' onsite performance were based on evaluations completed by Posada del Sol employees. Although Ruelas emphasized at oral argument that another Staff Builders' nurse supervised the two nurses, Ruelas presented no facts establishing that the supervising nurse was not also subject to Posada del Sol's control.
¶ 10 We find this case analogous to McDaniel. Although Staff Builders controlled the administrative aspects of the nurses' employment, Ruelas proffered no evidence that it actually controlled how the nurses provided care to Ruelas or other patients. Nor did she proffer any evidence that Staff Builders had the right to control how her care was provided. In fact, Ruelas conceded at oral argument that, if we apply the specific control test in McDaniel, she could not prove Staff Builders actually controlled or had the right to control the nurses' activities at Posada del Sol. In contrast, Posada del Sol clearly had the right to control how Ruelas's care was provided. It provided the facilities, equipment, and paperwork the nurses used while caring for Posada del Sol's patients. Posada del Sol supervised the nurses and, as Ruelas stated at oral argument, it directed the nurses to perform specific medical procedures.
¶ 11 Ruelas argues, however, that McDaniel should be limited to cases where it is undisputed that exclusive control has been ceded to the special employer. Although Ruelas claims exclusive control is a disputed issue, exclusive control over all aspects of the employment relationship is not required under McDaniel. The focus is on which employer had the right to control the specific injury-causing activity. McDaniel, 186 Ariz. at 555-56, 925 P.2d at 696-97; see also Lee Moor, 49 Ariz. at 133, 65 P.2d at 36; Restatement (Second) of Agency § 227 cmt. a. Here, as in McDaniel, there was no evidence that the general employer had any control over the specific activity giving rise to the injury, a point Ruelas conceded at oral argument.
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