Weaver v. Brush

• Decision Date: 20 December 1996
• Docket Number: No. 94-444,94-444
• Court: Vermont Supreme Court
• Parties: Linda A. WEAVER, David P. Weaver and Liberty Mutual Insurance Co. v. Georg Karl Geka BRUSH, GmbH and Otto Schell.

Page 439

689 A.2d 439

166 Vt. 98

Linda A. WEAVER, David P. Weaver and Liberty Mutual Insurance Co. v. Georg Karl Geka BRUSH, GmbH and Otto Schell.

No. 94-444.

Supreme Court of Vermont.

Dec. 20, 1996.

Thomas W. Costello, John C. Mabie and Joel T. Faxon, of Costello & Mabie, and Jesse M. Corum, IV, of Gale, Corum & Stern, Brattleboro, for plaintiffs-appellants Linda and David Weaver.

Robert P. Gerety, Jr., White River Junction, for plaintiff-appellee Liberty Mutual Insurance Co.

Joseph C. Galanes, of Kristensen, Cummings, Phillips, Carroll & Melendy, P.C., Brattleboro, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiffs Linda and David Weaver brought a personal injury suit against defendant Georg Karl Geka Brush, GmbH, a German corporation, and its employee Otto Schell, ^* claiming that Linda Weaver was injured as a result of Schell's design of a machine and Georg Karl Geka Brush, GmbH, was vicariously liable. Plaintiffs also attempted to join Liberty Mutual Insurance Company as a party plaintiff alleging that it was a real party in interest because it had made workers' compensation payments to Linda Weaver and claimed a lien on any recovery. The jury found that defendant was not negligent. On appeal, plaintiffs raise three arguments: (1) the trial court erred in failing to grant their motion for judgment notwithstanding the verdict (j.n.o.v.) because defendant Georg Karl Geka Brush, GmbH failed to show that Otto Schell had become the borrowed servant of Geka Brush Manufacturing Corporation, its local subsidiary; (2) the jury charge on the borrowed-servant doctrine was misleading and prejudicial; and (3) Liberty Mutual Insurance Company is a real party in interest and should have been joined in the litigation. We affirm.

On August 30, 1989, plaintiff suffered an injury while operating a disposable brush-welding machine at the Geka Brush Manufacturing Corporation (Geka Vermont) plant in Brattleboro, Vermont. Because of a jam in the machine, plaintiff was required to access a feeder bowl, which was above her head. To do so, she was supplied with a milk crate positioned next to the machine. She fell off the milk crate and suffered a sprained ankle. Her medical evidence was that as a result of the fall, she now suffers from permanent lower back injuries.

Geka Vermont is a Vermont corporation that manufactures component parts for the cosmetics industry and is a wholly owned subsidiary of Geka Corporation, a Delaware corporation. Geka Corporation is, in turn, wholly owned by Georg Karl Geka Brush, GmbH, a German limited liability corporation (Geka Germany).

It was the practice of Geka Germany to send its employees to its subsidiary corporations. Geka Vermont requested that Geka Germany send one of its employees to conduct training sessions, assist in the operation of the mascara dispensing machines, and to make any necessary repairs to the machines. Geka Germany complied with Geka Vermont's request, and sent Otto Schell, a mechanical engineer, to the Vermont plant. It was standard practice for the subsidiary corporations to reimburse the parent corporation for the services of the employee although the employee remained on the payroll of the parent corporation. This arrangement was used for Otto Schell.

At the Vermont plant, without informing or seeking the consent of Geka Germany, the president of Geka Vermont asked Schell to design and construct a new mascara dispensing machine to fill a special order. Schell agreed to do the job and went ahead and designed and built the machine. No one at Geka Germany had any knowledge of the agreement between Schell and Geka Vermont. In fact, to design and build the machine Schell stayed with Geka Vermont longer than originally planned. Geka Germany did not approve of Schell's extended stay in Vermont.

Plaintiffs brought a personal injury suit against Geka Germany, contending that Schell's negligent construction of the machine was the proximate cause of Linda Weaver's injury. Plaintiffs argued that Geka Germany, as Schell's employer, was vicariously liable for her injuries.

In December 1994, the matter was tried before a jury. Geka Germany denied any liability on its part, arguing that although Schell was its employee, he had become the borrowed servant of Geka Vermont. Defendant also argued that Schell was not negligent in designing and constructing the machine, and that any negligence was not the proximate cause of plaintiffs' injury. The jury found that defendant Geka Germany was not negligent.

Plaintiffs sought a directed verdict and j.n.o.v. on liability, arguing that Schell was negligent as a matter of law and that he remained the servant of Geka Germany, also as a matter of law. The court denied these motions.

We first address plaintiffs' argument that they should have been granted a directed verdict on liability. Their argument has two steps: Otto Schell was guilty of negligence as a matter of law by designing a machine that relied upon an unsafe milk crate for access to a part of the machine; and defendant was vicariously liable for Schell's negligence because it was his master, Geka Vermont did not become his master, and he was acting within the scope of his employment.

In considering a motion for a directed verdict or j.n.o.v., we must evaluate the evidence in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence. See Nadeau v. Imtec, Inc., 164 Vt. 471, ----, 670 A.2d 841, 844 (1995); Lockwood v. Lord, 163 Vt. 210, 212, 657 A.2d 555, 557 (1994). The grant of the motion would be "improper if there is any evidence that fairly and reasonably supports the nonmoving party's claim." Lockwood, 163 Vt. at 212, 657 A.2d at 557.

We do not believe that the evidence meets this standard for either step of plaintiffs' argument. There was evidence that Schell designed the machine with no method of access to the feeder bowl, that Geka Vermont added the milk crate, and that Schell never saw the milk crate in use and never was aware of its use. Negligence is the "failure to exercise care which the circumstances reasonably require or justly demand." Thurber v. Russ Smith, Inc., 128 Vt. 216, 219, 260 A.2d 390, 392 (1969). We cannot say as a matter of law that the absence of a means for a short person, like Linda Weaver, to access the feeder bowl to remove a jam was negligence, or that Schell is responsible for the dangerous condition created by the milk crate added by Geka Vermont.

Nor are we persuaded that as a matter of law Schell was a servant of Geka Germany. As both plaintiffs and defendant have argued, this step in the argument requires us to examine the law of borrowed servants.

We have only one detailed precedent on the applicability of the borrowed-servant doctrine to tort litigation, Minogue v. Rutland Hosp., Inc., 119 Vt. 336, 125 A.2d 796 (1956), in which this Court held that a delivery room nurse had become the borrowed servant of the supervising obstetrician so that the hospital which employed the nurse was not liable for the nurse's negligence. Id. at 341-42, 125 A.2d at 800. The Court stated that "the essential test" of whether one is the servant of another "is whether he is subject to the latter's control or right of control with regard not only to the work to be done but also to the manner of performing it." Id. at 339, 125 A.2d at 798. Drawing from comment a of § 227 of the Restatement of Agency (1933), the Court noted that the central question is not whether the servant remains the employee of the general employer "as to matters generally, but whether as to the specific transaction in question, he is acting in the business of and under the direction of the one or the other." Id. We adopted the test of Denton v. Yazoo & M.V.R.R., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932):

"Where one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former.... We must carefully distinguish between authoritative direction and control or mere suggestion as to details or the necessary cooperation when the work presented is part of a larger undertaking."

Minogue, 119 Vt. at 339, 125 A.2d at 799 (quoting Denton, 284 U.S. at 308-09, 52 S.Ct. at 142).

Plaintiffs urge that we now adopt the rule stated in § 227 of the Restatement (Second) of Agency (1958). On its face, § 227 adds little to the discussion in Minogue. It provides only that a "servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services." Restatement (Second) of Agency § 227 (1958).

Plaintiffs emphasize the discussion in the comments to § 227, particularly that (1) the borrowed servant must be "subject to the direction of the temporary employer as to the details of such act," id. cmt. a; (2) in the absence of evidence to the contrary, there is an "inference that the actor remains in his general employment," id. cmt. b; and (3) the fact that the employee has the "skill of a specialist" indicates a "continuance of the general employment," id. cmt. c. From these points, plaintiffs argue that because Schell was a highly skilled specialist and the details of his work were not controlled by Geka Vermont, he was not a borrowed servant.

The comments on which plaintiffs rely are entirely consistent with Minogue. Although we agree with and adopt the Restatement section, we do not see this as a change in our law. Our task is to apply the law to the facts before us.

Ordinarily, the question of whether one is the borrowed servant of another is one of fact, to be determined based upon analysis of a number of factors. See Continental Ins. Co. v. New Hampshire Ins. Co., 120 N.H. 713, 422 A.2d 1309, 1311 (1980); Daily Express, Inc. v....