Weaver v. Georg Karl Geka Bush
Weaver v. Georg Karl Geka Brush (94-444); 166 Vt. 98; 689 A.2d 439
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
Linda A. Weaver, David P. Weaver Supreme Court
and Liberty Mutual Insurance Co.
On Appeal from
v. Windham Superior Court
Georg Karl Geka Brush, GmbH and May Term, 1996
Richard W. Norton, J.
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
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. 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,(FN1) 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
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.
Defendant 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
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. Hilgert, ___
Vt. ___, ___, 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 (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, where 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).
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., 422 A.2d
1309, 1311 (N.H. 1980); Daily Express, Inc. v. Workmen's Comp. Appeal Bd.,
406 A.2d 600, 601-02 (Pa. Commw. Ct. 1979); see generally Restatement
(Second) of Agency § 227 cmt. a (1958). We cannot conclude that the
factors present here point only in plaintiffs' direction.
Plaintiffs emphasize that Schell was a highly skilled specialist who
worked with little or no supervision of his work. We agree that the skill
level of Schell is an important factor, but we do not agree that it is
determinative. See, e.g., A.J. Johnson Paving Co. v. Industrial
Comm'n, 412 N.E.2d 477, 481 (Ill. 1980). The issue is whether Geka Vermont
had a right to control the details of his work, and not whether it actually
exercised such control. We concur that "the control which the special
employer must assume need not extend to directing the technical details of
a skilled employee's activity. This would mean that skilled employees
would hardly ever be employees under the act. What is essential . . . is
the right to control the time and place of the services, the person for
whom rendered, and the degree and amount of services." 1B A. Larson, The
Law of Workmen's Compensation § 48.30, at 8-544 to 8-545 (1996) (footnote
Comment c to § 227 of the Restatement notes that "continuation of the
general employment is indicated by the fact that the general employer can
properly substitute another servant at any time, that the time of the new
employment is short, and that the lent servant has the skill of a
specialist." Restatement (Second) of Agency § 227 cmt. c (1958). The
circumstances detailed in the comment do not fit this case. Although Geka
Germany might have substituted any mechanical engineer in the beginning of
the assignment, the task of designing and building the disposable
brush-welding machine was particularly within the competence of Otto
Schell. Indeed, the general employer, Geka Germany, was unaware of
Schell's work and was in no position to supervise or change it.
Nor do we think the duration of the special assignment was short. The
design and construction of the machine took several weeks, and Schell
overstayed his initial assignment to complete it.
Overall, we conclude that the question whether Schell had become the
borrowed servant of Geka Vermont was for the jury, and the court properly
denied the j.n.o.v. motion. In reaching this conclusion, we have
considered plaintiffs' argument that there is an inference of continuing
control by the general employer. See Restatement (Second) of Agency § 277
cmt. b (1958). Such an inference arises only "[i]n the absence of evidence
to the contrary," id., and applies only "so long as, by the service
rendered another, he is performing the business entrusted to him by the
general employer." Id. We believe there is evidence to the contrary.
Moreover, the jury could find that Schell had gone beyond the business
entrusted to him by Geka Germany.
We next address plaintiffs' arguments concerning the jury
instructions. Plaintiffs argue that the trial court erred when it failed
to instruct the jury that (1) it must determine who had control over the
"means and methods" of Schell's work; (2) under the borrowed-servant
doctrine, the employee is presumed to be in the employ of his general
employer; and (3) the borrowed-servant doctrine is an affirmative defense.
First, plaintiffs contend that the trial court erred in failing to
instruct the jury that the right of control of the special employer must
extend to the "means and methods" of employment. Before considering the
substance of this objection, we must determine whether it was properly
Both parties submitted requests to charge. Plaintiffs' requests did
not cover the elements of the borrowed-servant doctrine, but plaintiffs'
attorney raised it in the charge conference in the following discussion:
[Plaintiffs' Attorney]: Your honor, I believe the law on this is,
and I am thinking of the propane gas case out of Wallingford and
other ones, that is the means and methods that the control must be
addressed to. The Court remembers those cases where --
The Court: Okay. You got that case? I'll take a look at it, the
means and methods.
[Plaintiffs' Attorney]: -- of performing the function, Lewis versus
Vermont Gas. . . . Lewis holds that it is the means and purpose of
affecting the end which determines whether it is an employee or
not. It has to be control over those means and methods. . . . I
don't have at hand that particular cite.
The Court: You got a submission on that?
[Plaintiffs' Attorney]: Sorry, I don't.
. . . .
The Court: Well, I am going to adopt that, knowing I will, would
be glad to take a look at it if you got the case for me. No one
submitted a request on this. The rule requires that a request be
submitted in writing to the Court. I don't have that. I think, I am
not so sure it is different than Minogue. I mean, one test of
control would be: Who has the means and methods? You are free
to argue that.
Despite the invitation from the court, plaintiffs' attorney offered neither
a formal submission on "means and methods" nor a memo on the authority
supporting it. As a result, the court did not specifically charge on the
Following the charge to the jury, plaintiffs' attorney asked whether
objections "reserved at the conference" were preserved, and the court
answered, "Yes." The attorney went on:
[Plaintiffs' Attorney]: Particularly, Lewis versus Vermont Gas on
the means and methods.
The Court: I looked at Lewis versus Vermont Gas Corporation,
but it doesn't mention that point at all as to master/servant.
[Plaintiffs' Attorney]: I'm sorry, Your Honor, if I misstated the
The Court: Good on contributory negligence and assumption.
[Plaintiffs' Attorney]: I'm sorry, Your Honor, wrong case. . . .
In any event, we said it on the record before. I don't want to
waste the court's time.
V.R.C.P. 51(b) provides that "[n]o party may assign as error the
giving or the failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict, stating distinctly
the matter objected to and the grounds of the objection." As we discuss
below, the actual jury instruction covered much of the concept plaintiffs
were urging, although not in the precise language plaintiffs were advancing
in the charge conference. Plaintiffs failed to address why that language
was inadequate. As a result, we cannot find that plaintiffs stated
distinctly the matter objected to or the grounds for the objection.
The situation in this case is similar to that in Winey v. William E.
Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 749 (1993), where we held, as
we do here, that a party failed to preserve an objection although the
matter had been raised in a charge conference and the court had declared
preserved all matters raised in the conference. We held:
We reiterate that we do not believe that a blanket reference made
after the charge to arguments made before the charge, even if
allowed by the trial court, complies with Civil Rule 51(b). We
certainly do not accept the theory that such a blanket reference can
cover another blanket objection to hundreds of pages of difficult-
to-follow argument. As it is, we do not read the statement in
question as making a blanket reference in this case. Plaintiff failed
to object "distinctly" to the lack of specificity in the consumer
fraud charge and to state the grounds of the objection.
Id. at 138, 636 A.2d at 750.
Plaintiffs here were more specific in pointing to the "means and
methods" issue, but never clearly objected to the court's proposed charge
at the charge conference, in large part because the court was still
formulating the charge and was open to any specific suggestions made by
plaintiffs' counsel. Because there was no objection at the charge
conference, there was nothing to preserve from that conference at the
post-charge discussion. Plaintiffs failed to follow up, and their
post-charge statement was more an apology for failure to specify their
position than an objection. In any event, the objection failed to address
the inadequacies in the charge actually delivered, and, for that reason,
did not comply with Rule 51(b). See Donahue v. Cowdrey, 440 S.W.2d 773,
776 (Ark. 1969) (objection to borrowed-servant charge was inadequate
because it was not "put in the form of a specific objection to the language
Even if plaintiffs had properly preserved their objection, we are not
convinced that the charge actually given was erroneous. The court charged
that the jury had to determine "who had the right to control Mr. Schell in
the performance of his work at the time in question." It itemized a number
of factors relevant to the question, including "who had the right of
control over Mr. Schell beyond mere suggestion . . . of details or
cooperation?" Following the listing of the factors, the court restated the
issue: "The corporation with the authority to control the design, assembly
and construction of the disposable machine is solely responsible for any
alleged negligence of Otto Schell."
In charging the jury, the court is required to include every material
point raised by the evidence. See Lockwood, 163 Vt. at 217, 657 A.2d at
560. Nevertheless, the court has discretion to select its own language.
On appeal, we will conclude that the jury charge was correct if, taken as a
whole, the charge breathed the true spirit of the law and did not mislead
the jury. Id. at 218, 657 A.2d at 560.
We do not think the charge misled the jury. As discussed, the factors
approach is adopted by the Restatement, and the court detailed most of the
Restatement factors. See Restatement (Second) of Agency § 227 cmt. a
(1958) (whether borrowed-servant doctrine applies is based on factors in §
220(2)); id. § 220(2) (listing factors). The court's summary of the issue,
although not using the term "means and methods," certainly conveyed the
concept that the right of control had to involve all aspects of the work.
We think this wording was within the court's discretion.
We will discuss plaintiffs' other objections to the charge only
summarily. Plaintiffs claim that the court should have charged that there
is a presumption that the servant remains under the control of the general
employer, in this case Geka Germany, and that defendant had the burden of
proof. Plaintiffs failed to submit proposed instructions on these issues,
and never objected on these grounds at the charge conference or after the
charge was delivered. The questions were not preserved, and we will not
Regarding the third issue, plaintiffs contend that the insurance
carrier which paid workers' compensation benefits to Linda Weaver is a real
party in interest and the trial court erred in failing to join it in the
litigation as a plaintiff. At oral argument, plaintiffs conceded that an
affirmance of the jury verdict in favor of defendant would render this
issue moot. Thus, because we affirm the jury verdict, we need not address
the real-party-in-interest issue.
FOR THE COURT:
FN1. Apparently, the complaint was never served on Otto Schell. The
case proceeded solely against Georg Karl Geka Brush, GmbH.