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'Control' determines whether 'Borrowed Servant' rule applies.



CASE ON POINT: Shelby v. Granbury Care Center No. 10-00063-CV(Tex. App. Dist. 10, 12/21/05 S.W.3d--TX

ISSUE: Ordinarily, an employer has vicarious liability The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child,  for the negligent negligent adj., adv. careless in not fulfilling responsibility. (See: negligence)  acts of its employees. Ordinarily, an employer is not responsible for the negligent acts of independent contractors A person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another's control except for what is specified in a mutually binding agreement for a specific job.  or employees of others. However, there are exceptions. The issue in this case was whether the 'Borrowed Servant' Doctrine was an appropriate exception to be applied in this case. Under the 'Borrowed Servant' Doctrine a party can, in fact, be held liable for the negligence of persons other than the party's employees or independent contractors. The key issue as to whether the 'Borrowed Servant' Doctrine was applicable was whether the party utilizing the services of one who is not the party's employee or an independent contractor for whom the party may have liability under 'Apparent Agency' Doctrine or the 'Ostensible Agency' Doctrine. Under the 'Borrowed Servant' Doctrine if a party has the right to control the acts of an employee of another the party may be responsible for the negligence of that party. That was the principal issue in this interesting Texas case in which a healthcare facility took on the services of a nurse who was employed by another party. In this case, however, the nurse was injured in·jure  
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.

2. To cause damage to; impair.

3.
 on the job due to the alleged failure of the party's own employees to assist her in moving a 300 pound man. When the nurse sought Workers' Compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work.  benefits from the party that did not directly employ her, issue was joined.

CASE FACTS: On In November of 2002 Granbury Care Center (Granbury), entered into a contract with Vitas Healthcare of Texas L.P. (Vitas) in which Vitas agreed to provide nursing services for Granbury's hospice patients. Joyce Shelby was a nurse employed by Vitas. Nurse Shelby was to provide nursing services at Granbury. On February 7, 2003, she was injured at Granbury while attempting to transfer a patient, weighing over 300 pounds, from his bed to a wheelchair. Nurse Shelby requested that a Granbury employee assist her in transferring the patient. She received no assistance. Nurse Shelby brought suit against Granbury alleging that Granbury was negligent in failing to assist her in transferring the patient and in failing to provide employees to take care of Granbury's own patients. The Tarrant County District Court granted Granbury's motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers . Nurse Shelby appealed.

COURT'S OPINION: The Court of Appeals of Texas affirmed af·firm  
v. af·firmed, af·firm·ing, af·firms

v.tr.
1. To declare positively or firmly; maintain to be true.

2. To support or uphold the validity of; confirm.

v.intr.
 the judgment of the trial court for the defendant. The court held, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that as a general rule a premises owner does not have a duty to ensure that an independent contractor performs work in a safe manner. However, a duty may arise when the premises owner retains some control over the independent contractor's work. The court proceeded to note that "control" may be shown by explicit contractual assignment of actual exercise of control. A contract may impose control upon a party thereby creating a duty of care. The fact that actual control was not exercised will not preclude liability on the part of the premises owner if a contract provides for his control over the independent contractor's work, pursuant to a contract, the contract must dictate the means, methods, or details of the independent contractor's work. Further, the law states that for one to impose its control such that it owes a duty of care to others: "is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe pre·scribe
v.
To give directions, either orally or in writing, for the preparation and administration of a remedy to be used in the treatment of a disease.
 alterations and deviations." The court concluded that premises owner who actually exercises control over an independent contractor's work may be subject to direct liability for negligence. However, the court concluded that this was not situation in this case. Hence, the court affirmed the judgment of the trial court.

LEGAL COMMENTARY: The Chief Justice of the Court of Appeals of Texas dissented. The chief justice wrote a dissenting opinion dissenting opinion n. (See: dissent)  in which he noted that the nurse raised three different theories in her attempt to show that the defendant was in control and was liable. The Chief Justice noted that the majority failed to address all of the three issues Nurse Shelby raised on appeal. He noted that the majority wholly failed to address the potential sources of a duty owed to the nurse. If the nurse was correct in the source of the duty of Granbury under either of the grounds argued, the judgment would have to have been reversed. The Chief Justice concluded that the majority erred in failing to address each issue necessary to a disposition of the nurse's appeal.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island Rhode Island, island, United States
Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches.
 firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. . In addition to his writings as Editor of Medical Law's, Nursing Laws & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent pre·em·i·nent or pre-em·i·nent  
adj.
Superior to or notable above all others; outstanding. See Synonyms at dominant, noted.



[Middle English, from Latin prae
 Lawyers, Marquis Who's Who Who’s Who

biographical dictionary of notable living people. [Am. Hist.: Hart, 922]

See : Fame
 in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:as Healthcare of Texas L.P., Granbury Care Center
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1U7TX
Date:Jan 1, 2006
Words:912
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