Weaver v. Georg Karl Geka Bush

Weaver v. Georg Karl Geka Brush (94-444); 166 Vt. 98; 689 A.2d 439

[Filed 20-Dec-1996]



       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
  to press.


                                 No. 94-444


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
Otto Schell


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
  Otto Schell.

       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
  motions.

       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
  omitted).

       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
  preserved.

       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
  question.

       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
     case.

     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
  selected").

       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
  consider them.

       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.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes


FN1.  Apparently, the complaint was never served on Otto Schell.  The
  case proceeded solely against Georg Karl Geka Brush, GmbH.