Cleveland v. Marco Crane

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROSALITA CLEVELAND, et al., Plaintiffs/Appellants,

v.

MARCO CRANE & RIGGING CO., Defendant/Appellee.

No. 1 CA-CV 20-0229
FILED 2-23-2021

Appeal from the Superior Court in Maricopa County
No. CV2018-004585
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiffs/Appellants

May, Potenza, Baran & Gillespie, P.C., Phoenix
By Jesse Callahan, Andrew Lishko
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Rosalita Cleveland and Jerald Cleveland (“Cleveland”)
appeal the superior court’s grant of summary judgment in favor of
Appellee Marco Crane & Rigging Co. (“Marco Crane”) and dismissal of its
negligence claims. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Timber Peaks Construction, LLC (“Timber Peaks”) entered
into an agreement (the “Rental Agreement”) for Marco Crane to lease a
crane and provide a crane operator, Benny Ellsworth, to Timber Peaks for
the construction of homes. The Rental Agreement stated that “Customer
[Timber Peaks] agrees that the rented equipment and all persons operating
the rented equipment, including persons supplied by Company [Marco
Crane] to operate or otherwise work with the equipment are under the
exclusive and complete direction, control and supervision of the Customer
[Timber Peaks].” It also provided that “Customer [Timber Peaks] is the Lift
Director/Supervisor for all work performed under this Agreement and
agrees to provide qualified, competent and experienced personnel to direct,
supervise, control and signal the operation of the rented equipment and its
personnel.” The Rental Agreement also included an indemnity clause in
which Timber Peaks agreed to “defend, indemnify, and save” Marco Crane
“harmless from any loss, damage, liability, cost or expense” arising out of
or related to the Rental Agreement.

¶3 Ellsworth was sent to the Timber Peaks worksite to complete
three crane lifts of trusses and wood sheeting. Besides Ellsworth, no other
Marco Crane employees were present at the jobsite. Cleveland was an
employee with Timber Peaks and served as a crane signaler for the project,
alongside the project superintendent Victor Shorty. During one of the lifts,
Ellsworth was following hand signals from Cleveland, which suggested
certain wood sheeting was unstrapped at two points. Cleveland had only
disconnected one strap from the wood sheeting. When Ellsworth followed
Cleveland’s signal the sheet broke and hit Cleveland, knocking him from

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an elevated surface. Cleveland fell onto a concrete slab and suffered severe
injuries.

¶4 Appellants sued Marco Crane for negligence under the
doctrine of respondeat superior for the alleged negligent acts of its
employee, Ellsworth. Marco Crane moved for summary judgment, arguing
it was not liable pursuant to the Rental Agreement and the borrowed
servant doctrine. The court entered judgment in favor of Marco Crane.
Appellants filed a motion to set aside the judgment and for a new trial,
which was denied.

¶5 Cleveland timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), -2101(A).

DISCUSSION

¶6 Appellants argue the superior court erred in granting Marco
Crane’s motion for summary judgment and denying its motion to set aside
the judgment and for a new trial. Summary judgment is appropriate when
there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Ariz. R. Civ. P. (“Rule”) 56(a). We
review the grant of summary judgment de novo, and we view the evidence
and all reasonable inferences in favor of the non-moving party. Wells Fargo
Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012); State ex rel. Corbin v.
Sabel, 138 Ariz. 253, 255 (App. 1983). We review denials of motions to set
aside the judgment and for a new trial for an abuse of discretion. Nelson v.
Phoenix Resort Corp., 181 Ariz. 188, 191 (App. 1994).

¶7 Marco Crane contends Appellants failed to properly dispute
the facts in its motion for summary judgment pursuant to Rule 56(e).
However, this alone does not entitle Marco Crane to summary judgment.
The court must consider the entire record before deciding a summary
judgment motion, and “[s]ummary judgment is inappropriate where the
facts, even if undisputed, would allow reasonable minds to differ.” Nelson,
181 Ariz. at 191; Schwab v. Ames Constr., 207 Ariz. 56, 59, ¶ 15 (App. 2004).

I. Borrowed Servant Doctrine1

¶8 “The doctrine of respondeat superior generally holds an
employer vicariously liable for the negligent work-related actions of its

1 Appellants argue that, pursuant to A.R.S. § 23-1022, the workers’
compensation test for lent employees should apply. However, as Marco

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employees.” Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz. 147, 150,
¶ 9 (2010). An employer that lends its employees to another can escape
vicarious liability for the employees’ negligent acts under the borrowed
servant doctrine. Id. A borrowed servant relationship results

when an employer sends one of its employees to do some
work for a separate business. The employer usually is
referred to as the “general employer” in the law of agency.
The separate business often is called the “borrowing” or
“special” employer. The transfer frequently is pursuant to a
contract between the general and borrowing employers
which calls for compensating the general employer. . . . The
general employer has no intention of severing its employment
relationship with its employee. Instead, the loaned employee
is subject to the instructions of the borrowing employer.

Id. at ¶ 10 (citation omitted).

¶9 In deciding whether a general employer remains vicariously
liable for its employee’s negligent acts, courts determine whether the
general employer exercised actual control over the acts giving rise to the
injury or retained a right to control those acts. Id. at ¶ 12. The focus is on
“which employer had control of the details of the particular work being
done at the time of the injury-causing incident.” Ruelas v. Staff Builders Pers.
Servs., Inc., 199 Ariz. 344, 346, ¶ 5 (App. 2001).

¶10 The Restatement (Third) of Agency provides a non-
exhaustive list of factors that can be used by the courts to guide the right-
of-control determination:

the extent of control that an employer may exercise over the
details of an employee’s work and the timing of the work; the
relationship between the employee’s work and the nature of

Crane notes, Appellants did not raise a claim under A.R.S. § 23-1022, and
Marco Crane did not raise the statute in its motion for summary judgment
to allege it is entitled to immunity from Appellants’ suit. This statute is not
directly relevant, and we decline to apply the workers’ compensation
principles to this inquiry. See Carnes v. Phoenix Newspapers, Inc., 227 Ariz.
32, 36-37, ¶¶ 17-20 (App. 2011) (noting the differences between the workers’
compensation and tort system, and stating that “the rules adopted for
work[er]s’ compensation cases should not be mechanically applied in
negligence cases”) (internal quotation omitted).

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the special employer’s business; the nature of the employee’s
work, the skills required to perform it, and the degree of
supervision customarily associated with the work; the
duration of the employee’s work in the special employer’s
firm; the identity of the employer who furnishes equipment
or other instrumentalities requisite to performing the work;
and the method of payment for the work.

Restatement (Third) of Agency § 7.03 cmt. d(2) (2006).

¶11 “It is a question of fact whether an employee continues as the
general employer’s servant or becomes the special employer’s servant for a
particular act.” Ruelas, 199 Ariz. at 346, ¶ 7. Nonetheless, summary
judgment is appropriate, and the court may determine the issue as a matter
of law, if the employer’s right to control is “clear and uncontradicted.”
Williams v. Wise, 106 Ariz. 335, 339 (1970). And a motion for summary
judgment “should be granted if the facts produced in support of the claim
or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

¶12 In this case, Timber Peaks and Marco Crane entered into a
contract in which the parties agreed that Ellsworth and the rented crane
were “under the exclusive and complete direction, control and supervision
of [Timber Peaks].” In Tarron, the Arizona Supreme Court held that
contract language alone is not determinative as to the issue of control, and
“[t]he trier of fact must examine the objective nature of the employment
relationship when determining employment status, one indicator of which
may be contract terms.” Tarron, 225 Ariz. at 151-52, ¶¶ 20, 23.

¶13 In Tarron, the general employer entered into a contract with
the special employer that stated the general employer would retain the
right to control the borrowed employees. Id. at 151, ¶ 18. However,
evidence established that the parties acted inconsistently with the contract,
and the special employer actually exercised control over the employees. Id.
at ¶ 17. Summary judgment was inappropriate based solely on the
contractual terms because the parties did not act as contemplated by the
contract. Id.; see also Coco v. Port of Corpus Christi Auth., 132 S.W.3d 689, 692-
93 (Tex. App. 2004) (finding that “contractual designation of control will
not establish borrowed servant status as a matter of law where evidence
shows that the parties acted to the contrary”); Burgan v. City of Pittsburgh,
542 A.2d 583, 574, 578 (Pa. Commw. Ct. 1988) (affirming the lower court’s

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ruling that CBI’s employees were not borrowed servants of Ram despite the
parties’ contract providing otherwise because “the facts belie[d] the
language of the Service Agreement as to Ram being in control of the
blasting” and so the “agreement was a sham and unenforceable”); Civello v.
Johnson, 567 So.2d 643, 647-48 (La. Ct. App. 1990) (finding a material fact
issue existed whether an Urban employee was a loaned servant of Cox as
provided for in a contractual agreement, because notwithstanding the
contract provision, Cox “exercised control of almost every aspect of its
relationship with Urban personnel”).

¶14 Here, however, the parties acted in a manner contemplated
by the Rental Agreement. Pursuant to the Rental Agreement, Ellsworth and
the crane were “under the exclusive and complete direction, control and
supervision of [Timber Peaks].” Timber Peaks provided the jobsite and the
supervisor that directed and oversaw Ellsworth. The Timber Peaks
supervisor, Shorty, admitted to telling Ellsworth that he was Ellsworth’s
“boss,” and he and Cleveland gave Ellsworth the hand signals for when
and where to move the crane. There were no other Marco Crane employees
present at the jobsite besides Ellsworth. No evidence presented even
suggested that the parties did not act as contemplated by the contract.

¶15 Appellants contend the Restatement factors demonstrate
Marco Crane had a right to control Ellsworth. The Restatement factors
serve as a helpful guide to courts when determining the issue of control,
although they need not be applied mechanically in each case. “The focus is
on which employer had the right to control the specific injury-causing
activity.” Ruelas, 199 Ariz. at 347, ¶ 11.

¶16 Appellants argue Timber Peaks could not have exercised
control over Ellsworth because he alone controlled the details of “how” to
operate the crane, while Timber Peaks employees merely directed
Ellsworth “when” and “where” to move the crane. We are unpersuaded by
this argument. Using his specialized skills, Ellsworth operated the crane as
directed by Timber Peaks signalers. Although he alone may be in control
over “how” to operate the crane, this does not demonstrate that Marco
Crane exercised any control over when and where to move the wood
sheeting. Those decisions were made by Timber Peaks’ employees, for the
benefit of Timber Peaks, and without input from Marco Crane.

¶17 Appellants also argue that Ellsworth was a “highly skilled
specialist,” which demonstrates he was under the control of his general
employer, Marco Crane. However, as is clear in Ruelas, skilled workers can
be “borrowed servants.” See Ruelas, 199 Ariz. at 347, ¶ 8 (nurses that were

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“licensed and experienced” were found to be borrowed servants). Further,
the Restatement (Third) of Agency notes that “borrowed servants” can
“span the range of highly skilled professionals,” which includes “skilled
construction workers.” Restatement (Third) of Agency § 7.03 cmt. d(2)
(2006).

¶18 Appellants also contend Marco Crane’s continued right to
control Ellsworth is evidenced by the fact that Marco Crane provided the
crane that Ellsworth operated. But this alone cannot be the basis on which
control is found, because otherwise, the borrowed servant doctrine would
be rendered meaningless in cases where an employer rents out both the
machinery and employee to another. Regardless of any right Marco Crane
may have retained over Ellsworth as his general employer, or over the
heavy equipment as its owner, no evidence suggests Marco Crane actually
exercised any right of control over Ellsworth or over the crane once
Ellsworth was at the Timber Peaks worksite.

¶19 Given the quantum of evidence required, Appellants have
failed to create a genuine issue of material fact as to whether Timber Peaks
had the right to control and actually controlled Ellsworth for its benefit. The
superior court did not err in entering summary judgment in favor of Marco
Crane and it did not abuse its discretion in denying the motion to set aside
the judgment and for a new trial.

¶20 As the prevailing party, Marco Crane is entitled to an award
of its costs incurred on appeal pursuant to A.R.S. § 12-341 and on
compliance with ARCAP 21.

CONCLUSION

¶21 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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