2006 Ohio 5508 | Ohio Ct. App. | 2006
{¶ 2} On October 6, 2003, Robinson, an employee and supervisor for the Melvin Asphalt Paving Company ("Melvin Asphalt"), and Brown, a nine-year employee of Hodson, Inc., were engaged in "berm work"1 on Fisher Road in Clinton County, Ohio. Brown was operating a dump truck owned by Hodson, Inc. Attached to the rear of the truck was a hopper-type device called a "chip spreader" which distributes limestone on the berm. Brown was operating the truck in reverse and allowing the limestone to fall onto the roadway at the direction of Robinson. Robinson was killed when he was run over by the truck and pinned under the chip spreader.
{¶ 3} Appellant filed a wrongful death suit against Brown and Hodson, Inc. In their answer, the latter admitted that on the day of the accident, the truck was driven and operated by Brown, "a Hodson employee," and that "at all time relevant hereto, Brown was an employee of Hodson." They asserted, however, that the complaint was barred generally under R.C. Chapter 4123 which governs workers' compensation, and specifically under the fellow employee immunity doctrine set forth in R.C.
{¶ 4} On August 29, 2005, the trial court overruled both motions. The trial court denied both parties' requests to find that Brown was or was not a loaned servant to Melvin Asphalt and a fellow employee of Robinson for purposes of the fellow employee immunity. The trial court found that the factors listed in R.C.
{¶ 5} "The Court agrees with [appellant] that [R.C.
{¶ 6} "The factual issue to be decided is whether Scott Brown became a loaned servant for Melvin Asphalt on the date of the accident and, if so, became legally entitled to immunity under the fellow servant immunity rule pursuant to R.C.
{¶ 7} The case proceeded to a jury trial. On September 16, 2005, the jury found that Brown was a loaned servant to Melvin Asphalt on the day of the accident, and returned a verdict in favor of Brown and Hodson, Inc. Appellant now appeals the trial court's August 29 and September 12, 2005 judgment entries, raising two assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} "THE TRIAL COURT ERRED BY DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANTS' AFFIRMATIVE DEFENSE OF WORKERS COMPENSATION IMMUNITY."
{¶ 10} Appellant argues that the trial court erred when it refused to apply R.C.
{¶ 11} An appellate court's review of a summary judgment decision is de novo. Below v. Dollar Gen. Corp.,
{¶ 12} In Slauter, William Slauter was injured by a truck driven by Kristine Klink. At the time of the accident, both Slauter and Klink worked for the same company. Slauter filed suit against Klink. The trial court granted summary judgment in favor of Klink. The trial court found that Klink was immune from liability under R.C.
{¶ 13} The Second Appellate District found that the trial court properly used R.C.
{¶ 14} The appellate court then held: "In view of the preceding analysis, we find that the legislature intended to redefine `employee' and to substitute a statutory test for the traditional common law standard. We also find that the legislative mandate in R.C.
{¶ 15} In Slauter, the appellate court reviewed the Ohio Supreme Court's decisions in Gillum v. Indus. Comm. (1943),
{¶ 16} In Gillum, the issue on appeal was whether the deceased worker was the employee of a company or an independent contractor. The decedent had entered into a contract with the company to haul logs. At the time, an employee was statutorily defined as "every person in the service of any person, firm or private corporation * * * but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer." The supreme court held that `[w]hether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created." Gillum, 141 Ohio St. at paragraph two of the syllabus.
{¶ 17} In Proctor, the issue was whether full-time, salaried physicians, employed to administer and operate a medical facility by Ford Motor Company for the use of its employees, were immune from liability under the fellow employee immunity statute, R.C.
{¶ 18} In Bostic, a truck driver died in an accident while hauling a load for a trucking company. The decedent's son filed a claim for death benefits, contending that his father was the company's employee at the time of his death. The trial court denied both parties' motions for summary judgment. The company then claimed that since the facts were not in dispute, the trial court should have found the decedent to be an independent contractor as a matter of law. The supreme court held that the issue of whether someone is an employee or an independent contractor becomes a jury question when the claimant offers some evidence he was an employee rather than an independent contractor. Bostic,
{¶ 19} The issue in the foregoing cases was whether the injured or deceased worker was an independent contractor or the employee of the company who was employing him. The decisions did not involve a loaned employee issue. In September 1996, the legislature enacted R.C.
{¶ 20} The trial court found, and appellant stated in her motion for summary judgment, that "the new definition of `employee' in construction contract work in R.C.
{¶ 21} However, "[c]onstruction contractors often underbid projects by deducting payroll taxes from their bids. In doing so, they treated their employees as if they were independent contractors who were responsible for paying their own taxes and workers' compensation premiums; payments which the employee rarely made." Fulton, Ohio Workers' Compensation Law (2 Ed. 1998) 146, Section 6.14. As a result, R.C.
{¶ 22} In light of the foregoing, we find that R.C.
{¶ 23} We find that our position is supported by other decisions which have applied R.C.
{¶ 24} In Archibald v. Gold Key Inc., Stark App. No. 2002CA00118, 2002-Ohio-5761, a television cable installer filed a complaint against a cable company after he sustained injuries in a fall from a ladder while installing a cable. The trial court entered summary judgment in favor of the cable company. The Fifth Appellate District held that the issue of whether the installer was an employee or an independent contractor of the cable company was for the jury to decide. In so finding, the appellate court noted that because the case did not involve a construction employment issue, R.C.
{¶ 25} We therefore find that the trial court did not err when it declined to apply R.C.
{¶ 26} Assignment of Error No. 2:
{¶ 27} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFA-PPELLANT BY INSTRUCTING THE JURY IMPROPERLY AS TO THE APPLICABLE DEFINITION OF EMPLOYEE."
{¶ 28} Appellant first argues that the trial court abused its discretion when it refused to instruct the jury to apply R.C.
{¶ 29} Appellant also argues that even if the trial court correctly instructed the jury on the loaned servant doctrine, it nevertheless abused its discretion when it refused to instruct the jury that Brown was acting within the course and scope of his employment with Hodson, Inc. on the day of the accident as admitted by Brown and Hodson, Inc. As noted earlier, Brown and Hodson, Inc. admitted in their answer to appellant's complaint that on the day of the accident, Brown was an employee of Hodson, Inc.
{¶ 30} A trial court has the duty to instruct the jury as to the applicable law on all issues presented in the case that are supported by the evidence. Enderle v. Zettler, Butler App. No. CA2005-11-484,
{¶ 31} When considering the appropriateness of a jury instruction, the reviewing court must view the instructions as a whole. Enderle, Butler App. No. CA2005-11-484, at ¶ 36. An appellate court will reverse a trial court's refusal to give a proposed jury instruction only if the trial court's refusal to give the proposed instruction was an abuse of discretion, that is, the refusal was arbitrary, unreasonable, or unconscionable; and, if so, only if that refusal was prejudicial to the complaining party. Id. at ¶ 37. Prejudice will be found only if the alleged error "cripples the entire jury charge."Jaworowski,
{¶ 32} Under the loaned servant doctrine, when one party lends his employee to another for a particular employment, the employee, for anything done in that employment, is treated as the employee of the party to whom he is loaned. Dirksing v. BlueChip Architectural Products, Inc. (1994),
{¶ 33} In determining whether an employee became a loaned servant, the inquiry should focus on the question of control, that is, whether the general employer has retained direction and control over the employee, or whether, with respect to the particular act or acts resulting in tort liability, the control of the employee has passed to the borrowing employer with reference not only to the result reached but to the method of reaching it. Ferguson v. Dyer,
{¶ 34} The trial court instructed the jury on the loaned servant doctrine in relevant part as follows: "An employer is liable for injuries negligently caused by its employee. You must determine the employment status of [Brown] on October 6, 2003 to resolve this dispute.
{¶ 35} "The Plaintiff alleges that [Brown] was an employee of [Hodson, Inc.] on October 6, 2003. Defendants contend that [Brown] was a loaned employee from [Hodson, Inc.] to [Melvin Asphalt] on the date of the accident.
{¶ 36} "An employee may be loaned to a second employer for a fixed time or job. To the extent that the second employer has the right to control what the employee shall do and how he shall do it, this employee is considered to be in the employ of the second employer. * * * Where an employee's performing duties of his employment and performing duties entrusted to him by his employer, then he's not a loaned employee. However, if the employee is not performing duties entrusted to him by his employer and is under the direction and control of another, then his employer has relinquished control and the employee is a loaned employee of someone else.
{¶ 37} "* * *
{¶ 38} "If at the time of the accident on October 6, 2003, you find [Brown] was a loaned employee for [Melvin Asphalt], you must find for the Defendants on all claims brought by the Plaintiff. If at the time of the accident on October 6, 2003, you find [Brown] was not a loaned employee, then you must find [Brown] was the employee of [Hodson, Inc.]. Then you must determine whether [Hodson, Inc.] is vicariously liable for the actions of [Brown]."
{¶ 39} Upon reviewing the foregoing instructions, we find that the trial court properly instructed the jury as to the issue of Brown's employment status on the day of the accident. We first note that Brown's and Hodson, Inc.'s admission in their answer that Brown was an employee of Hodson, Inc. on the day of the accident did not resolve the issue of whether on that same day and while working with Robinson, Brown was a loaned employee to Melvin Asphalt. As the loaned servant doctrine clearly states, an employee can remain the general servant of his employer while becoming a loaned employee to a second employer.
{¶ 40} The record also shows that the trial court engaged in extensive discussions with both parties with regard to the loaned servant jury instructions. Both parties challenged some of the trial court's language in its original jury instructions. Following both parties' closing arguments, the trial court instructed the jury. After the jury retired to deliberate, and as agreed by the parties, the trial court then allowed both parties to object to the jury instructions.4 Appellant objected to the trial court's failure to include in its instructions the fact that Brown was an employee of Hodson, Inc. on the day of the accident as admitted in their answer. The trial court's reply to appellant's objection shows that the trial court believed both parties had agreed with its loaned servant jury instructions and that these instructions had taken care of appellant's concerns and challenges with the earlier draft. Likewise, the attorney for Brown and Hodson, Inc. believed that both parties agreed the loaned servant instructions given to the jury were fine.
{¶ 41} We find that the jury instructions instructed the jury that if Brown was not a loaned employee to Melvin Asphalt, then he was an employee of Hodson, Inc. That is, the jury was required to conclude that Brown was an employee of Hodson, Inc. We also find that the jury instructions properly advised the jury on the loaned servant doctrine and that Brown could have more than one employer while he was engaged in berm work on the day of the accident. We cannot say that the jury instructions as given by the trial court, were so arbitrary, unreasonable, or unconscionable as to be an abuse of discretion. Nor can we say that the jury charge, as a whole, was so misleading and prejudicial as to induce an erroneous verdict. Appellant's second assignment of error is overruled.
{¶ 42} Judgment affirmed.
Powell, P.J., and Walsh, J., concur.