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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 for the negligent acts of its employees. Ordinarily, an employer is not responsible for the negligent acts of independent contractors 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 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 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. Nurse Shelby appealed.

COURT'S OPINION: The Court of Appeals of Texas affirmed the judgment of the trial court for the defendant. The court held, inter alia, 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 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 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 firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. 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 Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Article Details
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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
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