So your client was injured at the hands of a borrowed employee, or borrowed servant? What next? The “borrowing” company is denying liability because it wasn’t their employee who caused the accident leading to the injury, and the actual employer of the person causing the injury denies liability because its employee wasn’t in the “course and scope of employment” when the injury occurred.
The borrowed servant doctrine is available for instances such as this. Steve Harrelson has used the borrowed servant doctrine in the U.S. District Court for the Eastern District of Arkansas for a high-six figure verdict. Recently, the 5th Circuit Court of Appeals reaffirmed the Jones Act Borrowed Servant Doctrine in negligence cases.
How the borrowed servant doctrine works
The borrowed servant doctrine is the common law principle that the employer of a borrowed employee, rather than the employee’s regular employer, is liable for the employee’s actions that occur while the employee is under the control of the temporary employer. It comes into play when an employee may be subject to the control and direction of an entity other than the primary employer. There are several situations where this occurs, including temporary staff who work for a temporary staffing agency, property managers who work at a specific property, employees who are assigned to work exclusively at a client’s location, contractual relationships between a general contractor and subcontractor, or a number of any other scenarios where one company “borrows” an employee for another company to conduct its work.
In such situations, the employer is considered the “direct employer” and the “borrowing” business is the “special employer.” While the laws vary by state, it is important to understand the nature of the relationship so that there are no gaps in insurance protection that allow civil suits.
Factors considered when determining if the Borrowed Servant Doctrine applies
The nine factors that determine whether an employee is the borrowed servant of a company, as reaffirmed by the Fifth Circuit, are:
Who has control over the employee and the work they are performing, beyond mere suggestion of details or cooperation?
Whose work is being performed?
Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
Did the employee acquiesce in the new work situation?
Did the original employer terminate his relationship with the employee?
Who furnished tools and place for performance?
Was the new employment over a considerable length of time?
Who had the right to discharge the employee?
Who had the obligation to pay the employee?
Many times, the answers to these questions are not clear without a proper investigation. The facts and circumstances present at the worksite need to be investigated, as do the relationships between the parties involved.
For these reasons, it is imperative to hire a veteran litigator and experienced personal injury lawyer Little Rock AR trust who has been involved in strategizing personal injury claims for years.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the borrowed servant doctrine in personal injury cases.