Unpublished Disposition, 912 F.2d 469 (9th Cir. 1988)

MEMORANDUM^* 

We consider whether the district court erred in denying appellants' motion for judgment notwithstanding the verdict.

* At the time of his death, Daniel Kirkpatrick had been employed by Pool Company for thirteen years. Pool had contracted with Shell Oil Company to provide "drilling and work over" for Shell. A five-man Pool crew, which included Kirkpatrick, was assigned to Shell's offshore platform, "Eureka." As a motorman, Kirkpatrick's primary responsibility was maintaining the diesel motors.

On May 4, 1987, the Pool crew, along with two Shell employees, was engaged in the process of moving an oil rig on the Eureka. While Kirkpatrick was watching for "binds," the moveable bridge popped loose, throwing Kirkpatrick approximately thirty feet to the floor of the platform. He was thrown through an opening where a section of the hand railing was missing. Kirkpatrick died as a result of the injuries sustained from the fall.

Kirkpatrick's legal heirs filed this suit in federal district court, alleging that Shell's negligence was the legal cause of Kirkpatrick's death; a complaint-in-intervention was filed by Pool and Employers Casualty Company (collectively "the appellees"). Shell asserted the affirmative defenses of "special employment" and comparative negligence on the part of Kirkpatrick.

Jury trial commenced on October 18, 1988. Shell subsequently moved for a directed verdict; the district court denied the motion. The jury returned a verdict in favor of plaintiffs for the sum of one million dollars. The jury specifically found that Kirkpatrick was not acting as Shell's special employee at the time of his death. Accordingly, the district court entered a judgment against Shell. Shell subsequently filed motions for a new trial and for a judgment notwithstanding the verdict ("JNOV"), both of which were denied.

Shell timely appealed from the district court's denial of its motions. We have jurisdiction under 28 U.S.C. § 1291.

II

The parties agree that if Kirkpatrick was a special employee of Shell, then the appellees' common law negligence action would be barred because their exclusive remedy would be under the Longshore and Harbor Workers' Compensation Act. See 33 U.S.C. §§ 901-950. Shell contends that overwhelming evidence in the record demonstrates that Kirkpatrick was its "special employee," and therefore the district court erred in denying the motion for JNOV.

"JNOV is proper if without accounting for the credibility of witnesses, we find that the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party, can support only one reasonable conclusion--that the moving party is entitled to judgment notwithstanding the adverse verdict." The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir. 1988) (quotation omitted). We are not free, however, to weigh the evidence or to reach a result we find more reasonable if the jury's verdict is supported by substantial evidence. See Garvin v. Greenbank, 856 F.2d 1392, 1396 (9th Cir. 1988).

In determining whether the district court erred in denying Shell's motion for JNOV in the instant case, we therefore consider whether the evidence reasonably supports the jury's conclusion that Kirkpatrick was not a special employee of Shell. Courts generally apply a multi-factor test in determining whether a worker is a special employee.¹  See, e.g., West v. Kerr-McGee Corp., 765 F.2d 526, 530 (5th Cir. 1985).

Applying the above factors, we conclude that it was reasonable for the jury to find that Kirkpatrick was not Shell's special employee. First, we are not persuaded that the record demonstrates that Shell clearly had direction and control over Kirkpatrick's work on the oil platform. In defining "direction and control," we have observed that the alleged special employer need not have absolute control over the worker.

[I]t is not essential, in order to constitute an employee a loaned servant, that the general employer relinquish full control over his employee, or that the special employee be completely subservient to the borrower.... [T]he latter must possess the power of authoritative direction and control over the employee so that his directions will have the force of a command ... over the servant's performance of the particular work in which he is engaged at the time of his negligent act or omission.

McCollum v. Smith, 339 F.2d 348, 351 (9th Cir. 1964) (quotation and citation omitted). Courts, however, have distinguished between authoritative control and mere suggestions as to the details of the work. See, e.g., Dornan v. United States, 460 F.2d 425, 428 (9th Cir. 1972); Ruiz v. Shell Oil Co., 413 F.2d 310, 313 (5th Cir. 1969).

Although there was testimony at trial indicating that Kirkpatrick and the other Pool crew members received work assignments from Shell employees, the record does not reveal that Shell maintained "direction and control" over Kirkpatrick's work. Indeed, the instant case is in contrast to Parker v. Joe Lujan Enterprises, Inc., 848 F.2d 118 (9th Cir. 1988), where we determined that the winch operator was a special employee of an electrical contractor. In Parker we noted that the contractor possessed sufficient control over the winch operator because the contractor positioned the winch truck, coordinated the operator's actions on the job site, and provided specific instructions as to the details of the job. Id. at 120. The record in the instant case, however, does not demonstrate that Shell had similar control over the details of Kirkpatrick's work.

Moreover, the purchase order agreement suggests that Shell and Pool did not intend to create a special employment relationship between Pool workers and Shell.²  The purchase order agreement states in relevant part:

Contractor shall be an independent contractor and neither Contractor nor anyone employed by Contractor shall be deemed for any purpose to be the employee, agent, servant or representative of [Shell] in the performance of the work hereunder.

Appellees' Excerpts of Record at 12.

The expression of the parties' intentions is an important factor to consider in determining whether a special employment relationship was created. See Ruiz, 413 F.2d at 313 ("the very terms 'borrowed' and 'loaned' connote some type of agreement, understanding, or meeting of the minds between the borrower and the lender"). The purchase order agreement in this case therefore supports the jury's finding that Kirkpatrick was not Shell's special employee.

Additionally, the record does not reveal whether Kirkpatrick implicitly consented to an employment relationship with Shell. Courts have found that a worker did not implicitly consent to a transfer of employment when the worker worked only a short time for the alleged special employer and did not appreciate the risks associated with the assignment. See, e.g., Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 379 (5th Cir. 1985) (" [the alleged special employee] had been sent to [the alleged special employer] only for a single day of work, during which he had been injured, and it can hardly be said as a matter of undisputed fact, without further development, that he acquiesced to the transfer of his employment ... and accepted the risks of [the] work").

Here, the record does not reveal how long Kirkpatrick was working on Eureka. Shell does not point to any evidence in the record that suggests that Kirkpatrick knew and understood the risks associated with his work on the platform. It is therefore reasonable to conclude that Kirkpatrick did not implicitly acquiesce or consent to a special employment relationship with Shell.

In sum, we conclude that the district court did not err in denying Shell's motion for JNOV; the jury's determination that Kirkpatrick was not Shell's special employee was not unreasonable.

III

Shell also argues that the district court erred in denying the motion for JNOV because there is undisputed evidence in the record that Kirkpatrick had been negligent in his assignment. Shell asserts specifically that Kirkpatrick's failure to close off the missing handrail and his attempt to remedy a bind were negligent.

We conclude that the jury's findings of Shell's negligence and an absence of comparative negligence on the part of Kirkpatrick are not unreasonable. Certain witnesses testified that any opening in the hand railings could have been prevented by adding one section of railing whenever the rig is moved.

The district court therefore did not err in denying Shell's motion for JNOV because the jury's conclusion that there was no comparative negligence was reasonable.³ 

AFFIRMED.