§77.7 Responsibility for Acts of Employees

The Case: Armonett v. Elliott Crane Service , 65 S.W.3d 623 (Tenn. Ct. App. 2001).

The Basic Facts: Plaintiff was injured while building a house. He said he fell because he was almost hit by a truss being moved by a crane owned by Elliott Crane Service. Elliott maintained that although it employed the crane operator it was not responsible for the operator's negligence, if any.

The Bottom Line:

  • "We turn first to Elliott Crane's assertion that the trial court erred by concluding as a matter of law that it is vicariously liable for Mr. Solley's [the crane operator's] alleged negligence under the doctrine of respondeat superior. We have determined that Fox Ridge is not entitled to a judgment as a matter of law on this issue because the evidence, in its present state, would permit the fact-finder to reasonably infer that Mr. Solley was the borrowed servant of either Fox Ridge or Mr. Fritscher [the plaintiff's employer]." 65 S.W.3d at 628.
  • "Under the doctrine of respondeat superior, a master faces liability for its servant's negligence if the servant is acting within the scope of his or her employment, even if the master itself is not negligent. White v. Revco Discount Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000); Smith v. Henson, [381 S.W.2d 892, 897 (Tenn. 1964)]; National Life & Accident Ins. Co. v. Morrison, [162 S.W.2d 501, 504 (Tenn. 1942)]; [Warren A. Seavey, Handbook of the Law of Agency § 83 (1964)] ("Handbook of the Law of Agency"). One rationale for this rule is that masters are in the best position to avoid the risk of harm their enterprise may cause and can spread the burden of potential harm by insuring against it and by adjusting prices accordingly. [Merton Ferson, Principles of Agency § 26, at 34 (1954)] ("Principles of Agency")." Id. at 628 -29.
  • "Control is a key element in the creation of a master-servant relationship. [Restatement (Second) of Agency § 220(1) (1958)]; Handbook of the Law of Agency § 84C. In Tennessee, the right to control the result is not determinative of the existence of the relation of master and servant, but the actual control of means and method is. McDonald v. Dunn Constr. Co., [185 S.W.2d 517, 520 (Tenn. 1945)]; Parker v. Vanderbilt Univ., 767 S.W.2d 412, 416 (Tenn. Ct. App. 1988)." Id. at 629.
  • "Control of how work gets done also plays an important role in determining whether a servant of one master becomes the loaned servant of another. FN1 Price v. McNabb & Wadsworth Trucking Co., 548 S.W.2d 316, 318 (Tenn. Ct. App. 1976); [Restatement (Second) of Agency § 227 cmt. a]; [Principles of Agency § 36, at 45-46]; [Handbook of the Law of Agency § 86A, at 147]. Temporary masters may control servants' performance of specific acts even while the servants are controlled by their general employers for general matters.Gaston v. Sharpe, [168 S.W.2d 784, 786 (Tenn. 1943)]; Parker v. Vanderbilt Univ., 767 S.W.2d at 416; Richardson v. Russom Crane Rental Co., 543 S.W.2d 59. We turn first to Elliott Crane's assertion that the trial court erred by concluding as a matter of law that it is vicariously liable for Mr. Solley's alleged negligence under the doctrine of respondeat superior. We have determined that Fox Ridge is not entitled to a judgment as a matter of law on this issue because the evidence, in its present state, would permit the fact-finder to reasonably infer that Mr. Solley was the borrowed servant of either Fox Ridge or Mr. Fritscher.
    FN1 Other factors include the length of employment by the temporary employer; the skill of the worker; and whether the general employer, the temporary employer, or the worker supplies the instrumentalities or tools. See [Restatement (Second) of Agency §§ 220(2), 227 cmt. a]; [ Handbook of the Law of Agency § 86A, at 147]."
    Id . at 629.
  • "Where a general employer rents out a machine and employee to operate it, the courts generally infer that the operator remains in the service of his or her general employer on the assumption that the temporary employers only control what the servants do, not how they do it. [Restatement (Second) of Agency § 227 cmt. c]; [Handbook of the Law of Agency § 86A, at 147]. Nevertheless, the equipment operator becomes the temporary employer's servant for the purposes of a specific act when the temporary employer directs the servant on the details of how to accomplish the act. Gaston v. Sharpe, [168 S.W.2d at 786]; Richardson v. Russom Crane Rental Co., 543 S.W.2d at 592; [Restatement (Second) of Agency § 227 cmt. d]; [Principles of Agency § 36, at 46]." Id.
  • "In Gaston v. Sharpe, the temporary employer rented a dragline and its operator. The site foreman signaled the operator to allow slack in the cable so that the plaintiff could adjust it. The operator either misunderstood the directions or negligently attempted to comply, with the unfortunate result that the machine dropped a 2,000 pound hammer on the plaintiff's leg. Gaston v. Sharpe, [168 S.W.2d at 784-85]. Reasoning that the foreman controlled the operator by directing him to slacken the cable, the Tennessee Supreme Court upheld the trial court's directed verdict that the operator was the borrowed servant of the temporary employer when performing the specific act that injured the plaintiff. Gaston v. Sharpe, [168 S.W.2d at 786]; Richardson v. Russom Crane Rental Co., 543 S.W.2d at 592 (holding that a crane operator is the borrowed servant of a temporary employer who directs the operation of the crane)." Id. at 629-30.
  • "Mr. Armoneit and Fox Ridge contend that Elliott Crane Serv., Inc. v. H.G. Hill Stores, Inc., 840 S.W.2d 376 (Tenn. Ct. App. 1992) controls here. In that case, this court held Elliott Crane vicariously liable for the negligence of its crane operator. There, however, the court specifically pointed out that the record contained no evidence 'that the movement of the crane which produced the [accident] was in response to any signal, request or command of any employee of defendant.' Elliott Crane Serv., Inc. v. H.G. Hill Stores, Inc., 840 S.W.2d at 381." Id. at 630.
  • "The uncontradicted testimony in this case indicates that Mr. Fritscher and his employees were directing Mr. Solley's operation of the crane when Mr. Armoneit was injured. Mr. Solley testified at his deposition that Mr. Fritscher directed him with hand signals on every truss that he placed. Mr. Hollingsworth indicated in his deposition that, although he was not present when Mr. Armoneit was injured, in his experience the people on the wall attaching the truss generally flag the crane operator. In this case, Mr. Fritscher's employees were attaching the trusses at the time of the accident. Accordingly, a fact-finder could reasonably conclude that Mr. Fritscher or his employees were flagging Mr. Solley at the time of the accident and, therefore, that Mr. Solley was the borrowed servant of Mr. Fritscher or Fox Ridge when his allegedly negligent operation of the crane injured Mr. Armoneit.FN2 As a consequence, the trial court erred in holding that, as a matter of law, Mr. Solley was Elliott Crane's servant when the accident occurred. Fox Ridge is not entitled to summary judgment on this issue because reasonable persons can draw different conclusions from the facts.
    FN2 We need not specifically determine under agency principles whether Mr. Solley was the borrowed servant of Fox Ridge or Superior Framing. Either way, he was not Elliott Crane's servant in performing the specific act that caused the accident."
    Id . at 630.

Other Sources of Note: Darling v. J.B. Expedited Services, Inc. , No. 2:05-CV-00017, 2006 WL 2238913, at *27 (M.D. Tenn. Aug. 3, 2006) (decision identifies numerous Tennessee cases discussing the factors taken into account in determining the presence of a master-servant relationship); White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000) (discusses the dual master doctrine).

Recent Cases: 

Cooper v. Robert Ledford Funeral Home, Inc., No. E2013-00261-COA-R10-CV, 2013 WL 3947758 (Tenn. Ct. App. July 29, 2013) (when employee is “on call,” fact that he must come to work when employer tells him to does not make the employee’s drive to work any different that than of a regularly scheduled commuter; if the employee drives a vehicle not owned by the company and does not run company errands on the way to work, the employee will likely be deemed outside the course and scope of employment); Tyus v. Pugh Farms, Inc., No. W2011-00826-COA-R3-CV, 2012 WL 938509 (Tenn. Ct. App. March 19, 2012) (reversing summary judgment for employer where employee hit co-worker with metal pipe on the head and employer permitted horseplay at work and employee had engaged in prior altercations); Hughes v. The Metropolitan Government of Nashville and Davidson County, 340 SW.3d 352 (Tenn. 2011) (implying a preference for trial courts to use the Restatement (Second) of Agency rather than the Restatement (Third) of Agency in determining whether an employee was acting in the course and scope of employment).

Cheatwood v. Curle , No. W2007-02204-COA-R3-CV, 2008 WL 2687618 (Tenn. Ct. App. Jul. 7, 2008) (upholding summary judgment for defendant employer finding employee's use of vehicle involved in wreck was unauthorized).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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