Preview:

COURT OF APPEALS
DECISION
                                                                                         DATED AND RELEASED
                                                                                                                                                NOTICE
                                                                                         September 11, 1997
                                                                                         A  party  may  file  with  the  Supreme  Court  a      This opinion is subject to further editing. If
                                                                                         petition  to  review  an  adverse  decision  by  the   published, the official version will appear in
                                                                                         Court of Appeals.   See § 808.10 and RULE 809.62,      the bound volume of the Official Reports.
STATS.
No.                                                                                      96-0556
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
                                                                                         DISTRICT IV
CARL STEVENSON,
PLAINTIFF-APPELLANT,
V.
J. F. BRENNAN COMPANY, INC., AND WAUSAU
UNDERWRITERS INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge.  Affirmed.
Before Eich, C.J., Dykman, P.J., and Roggensack, J.
PER CURIAM.    Carl Stevenson appeals from a summary judgment
dismissing his personal injury claim against J. F. Brennan Company, Inc. (JFB)
and  its  insurer.    Stevenson  was  injured  in  a  barge  cleaning  accident  while
employed by Brennan Marine, Inc. (BMI), a corporation which is linked to JFB by




NO. 96-0556
common ownership, but which is engaged in a separate and distinct business.   The
accident was allegedly caused by the negligence of Kenneth Steiber, a long-time
employee of JFB who had temporarily worked on the BMI barge cleaning project
for two and one-half months.    Stevenson sued JFB as Steiber’s employer, and
directly for its alleged negligence in training Steiber.   The dispositive issues are
(1) whether evidence submitted on summary judgment established that Steiber was
a loaned employee of BMI, thereby removing JFB’s liability for his acts while
working on BMI’s project; and (2) whether that evidence also required dismissal
of the direct claim against JFB for negligently training Steiber in the duties he was
performing at the time of Stevenson’s injury.    We conclude that the evidence
requires dismissal as a matter of law.   We therefore affirm.
Stevenson initially sued BMI.   He then belatedly learned of Steiber’s
relationship to JFB, as its long-time employee, and amended his complaint to
include JFB as a defendant.   The case against BMI was subsequently dismissed, in
an order that is not challenged on appeal.   At issue, instead, is the trial court’s
subsequent judgment dismissing the complaint against JFB and its insurer, on the
merits and on statute of limitations grounds as well.
Summary  judgment  is  appropriate  if  the  material  facts  are
undisputed, only one reasonable inference is available from those facts, and that
inference requires judgment for a party as a matter of law.   Wagner v. Dissing,
141  Wis.2d                                                                             931,                             939-40,   416  N.W.2d   655,   658   (Ct.  App.   1987).   We
independently decide this issue without deference to the trial court.   Schaller v.
Marine Nat’l Bank, 131 Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct. App. 1986).
Under the loaned employee rule, the borrowing employer becomes
the  party solely liable  in  respondeat  superior  if                                  (1) the  employee  actually or
2




NO. 96-0556
impliedly  consented  to  work  for  the  borrowing  employer;                            (2) the  employee
performed  the  borrowing  employer’s  work  at  the  time  of  the  injury;              (3) the
borrowing  employer  had  the  right  to  control  the  details  of  the  work  being
performed;  and                                                                           (4) employee’s  work  was  primarily  for  the  benefit  of  the
borrowing employer.   Meka v. Falk Corp., 102 Wis.2d 148, 151, 306 N.W.2d 65,
68  (1981).    Here,  Stevenson  concedes  the  second  and  fourth  elements,  but
contends that material disputes remain as to whether Steiber consented to work for
BMI,  and  whether  BMI  had  the  right  to  control  the  details  of  the  work  he
performed.
The undisputed evidence shows that Steiber consented to work for
BMI.   Steiber and all other involved persons testified that Steiber actually and
willingly agreed to work on BMI’s project.   Even if he did not, as Stevenson asks
us  to   infer   from  the   inherently  coercive   nature   of   employer/employee
relationships, other factors establish an eventual implied consent.   In Meka, 102
Wis.2d at 156, 306 N.W.2d at 70, the supreme court identified several factors that,
combined, establish implied consent as a matter of law.   These include the fact that
the employee knew that his work benefited the borrowing employer, that he had
worked for the borrowing employer for many weeks, that he was subject to a high
degree of control and supervision as to actual work done, that he worked on the
borrowing  employer’s  premises  at  that  employer’s  regular  business,  that  the
loaning  employer  had  no  control  or  right  to  control  the  nature  of  the  work
performed by the employee and the borrowing employer had the right to remove
the  employee  from  further  work.    Id.    Those  same  factors  are  present  and
undisputed in this case.   Seiber’s implied, if not actual, consent to his employment
at BMI is therefore not subject to reasonable dispute.
3




NO. 96-0556
The  evidence  also  establishes  that  BMI  controlled  the  details  of
Steiber’s work for BMI.    Steiber was laid off from JFB at a time when BMI
needed his services on its barge cleaning project.   Once Steiber began work for
BMI, there is no evidence that he had any further contact with anyone at JFB until
after Stevenson’s injury, creating the inference that not only did JFB have no
control over Steiber, but no particular interest in what he was doing.   Although he
continued on the JFB payroll, BMI reimbursed JFB dollar for dollar for his salary
and benefits.    Additionally, we do not infer JFB control because Steiber was
operating a JFB owned crane on the BMI premises.    The undisputed evidence
showed that the crane was rented from JFB separately, and that BMI would have
rented a crane elsewhere if the price had been cheaper.   In other words, there is no
evidence that JFB assigned Steiber to the BMI work site in order to care for and
properly operate its crane.   In contrast to JFB’s lack of control over Steiber, a BMI
officer directly supervised him.   While that supervision was not on site, Steiber
received  instructions  every day  and  sometimes  several  times  a  day,  over  the
phone.
The  undisputed  evidence  also  requires  dismissal  of  Stevenson’s
direct claim against JFB for its negligent training of Steiber.   Stevenson alleged
that Steiber negligently caused his injury when he “began the process of lifting a
barge cover [with the crane] without first receiving the appropriate hand signal
that it was safe to do so.”   According to Stevenson, that allegation implicates JFB
because it negligently failed to train Steiber to use only hand signals as opposed to
head signals while operating a crane.   However, if improper signals were used in
the crane operations at BMI’s work site, that can only be BMI’s responsibility.
Regardless of the training and procedures implemented during Steiber’s tenure at
JFB, BMI had the authority to impose whatever safety procedures it wished to at
4




NO. 96-0556
its work site.   Steiber and his supervisor at BMI, in their depositions, agree that
signaling and other safety procedures were discussed when Steiber came to work
for  BMI.    JFB  cannot  reasonably be  held  liable  if  those  discussions  did  not
produce an appropriate signaling system.
Our decision makes it unnecessary to address whether Stevenson
commenced  this action after the applicable  statute  of  limitations had expired.
Even if the action was timely, the undisputed evidence on the merits requires
judgment for JFB.
By the Court.—Judgment affirmed.
This  opinion  will  not  be  published.    See  RULE  809.23(1)(b)5.,
STATS.
5

Download 10438.pdf

Wisconsin Law