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"Strict" Products Liability Dead in Arizona?
Abuse and neglect is still rampant in nursing homes
Allegation of Comparative Fault Does Not Preclude Award of Prejudgment Interest
Answer May Be Struck Where Defendant Willfully Fails to Produce Documents
Architect Can Be Liable for Economic Loss Caused by Negligence
Arizona Court of Appeals Holds Crop Dusting is Still an Inherently Dangerous Activity
Arizona Court of Appeals Rules Excessive Punitive Damages Unconstitutional
Arizona Legislature "tort reform" statute does not violate State Constitution Separation of Powers
Arizona Preliminary Med Mal Expert Affidavit Requirement Constitutional
Arizona Statute Update
Arizona Supreme Court Announces Guidelines for Notice of Claim in Class Action
Arizona Supreme Court Brings Reason to Notice of Claim Requirements
Arizona does not recognize a first or third party claim for spoilation of evidence
Arizona's Vulnerable Adult Statute Applies to the State's Treatment of Incapcitated Adults
Asserting 5th Amendment in Civil Action Creates Inference of Guilt
Asserting 5th Amendment in Civil Action Creates Inference of Guilt
Attorney Can Be Liable for Malicious Prosecution & Aiding and Abetting
Attorney Malpractice Claim Requires Proving Case Within a Case
Attorneys' Fees Part of Arbitration Award When Considering Sanctions
Attorneys' Fees Part of Arbitration Award When Considering Sanctions
Attorneys' Fees Properly Awarded After Voluntary Dismissal
Bar Owner's Responsibility for Drunk Drivers
Bizzare and Dangerous Side Effects of Anti-Nausea Drug
Burns and Burn Injuries
Bush Administration Policies Show Disdain for Consumer Safety - Pre-Emption
Business Interruption Insurance Where Expansion of Business Collapses
Car Dealer's Insurance Policy Doesn't Cover "Customers"
Causation Expert Can Opine on Standard of Care says New Court of Appeals Case
Charter School not State Actor in Employment Matters
Child Crawls through Pet Door Drowns in Pool
Children face greater harm from medical mistakes
Compulsory Arbitration Sanctions in Arizona Mandatory
Confession to Clergyman Priviliged Even if Wife Present
Constitutional Comparisons with Japan
Consumer Safety -- Toys
Court Interpreter Qualifications For Trial Judge To Determine
Court of Appeals Announces Criteria for Admissibility of Expert Testimony in Medical Malpractice Case
Court of Appeals Protects Insurance Company Right to Intervene
Criminal Act Exclusion Bars False Imprisonment Claim
Damages
Damron/Morris Agreements May Apply to Non-Insurance Contracts to Indemnify
Damron/Morris Agreements May Apply to Non-Insurance Contracts to Indemnify
Dangerous Diet Aids Pulled From the Shelves
Deadly Pacemaker Wires
Deadly Peanut Butter Kills 8, Sickens Hundreds Nationwide
Deadly Peanut Butter Kills 8, Sickens hundreds Nationwide
Default Judgment May Include Punitive Award Even if Plaintiff Fails to Plead a Specific Amount
Discovery Sanction of Striking Complaint
Doctor/Patient Privilege No Bar to Identity of Patient Witnessing Fall of Plaintiff's Decedent
Drunk Driver's Right to Sue State Limited
Economic Loss Doctrine Bars Tort Claims for Construction Defects
Electoral College Part I: What is it?
Electoral College Part II: Where does the Electoral College come from and why do we still have it?
Employee May Prepare to Compete With Employer Prior to Resignation
Employer vicariously liable for employee driving to restaurant to eat after work when on out of town assignment
Employer's Liability for Acts of Employee
Employer's Liability for Acts of Employee--Part II Scope of Employment
Employer's Responsibility for Acts of Employee Part II
Epilepsy drug causes drop in child?s IQ when taken by pregnant mother
Evidence of Signs Posted After Accident Inadmissible
Evidence of Violation of OSHA Can Help Prove Standard of Care
Expert Disclosure Rules Apply to Defendant in Medical Negligence Case
Failure of Nurse to Call Doctor is Substantial Factor in Causing Death--Indivisible Injury Rule
Failure to Attend Arbitration Grounds for Dismissing Appeal
Failure to Warn and Federal Preemption
Family Purpose Doctrine Renders Parents Liable for Son's Negligent Driving Even When Son Exceeds Scope of Permission to Use the Car
Forum Non Conveniens not Applicable Where Product sold in Arizona to Arizona Resident
Half of hospital workers don't wash their hands properly
IME Doctor Can be Liable for Negligent Diagnosis
IME doctor not Liable for "Aiding and Abetting" Insurance Co. in Bad Faith Denial of Workers Comp Claim
Injuries or Death on Someone Else's Property--What is an Invitee?
Insurance Bad Faith
Insurer Faced with Multiple Claims Against Limited Proceeds May Avoid Bad Faith by Interpleading Proceeds
Interest on Judgment Against State
Judgment in Small Courts has no Collateral Estoppel Effect in Superior Court
Judgment in Small Courts has no Collateral Estoppel Effect in Superior Court
Jurisdiction Over Nonresident Defendant Gives Court Power to Garnish Intangible Asset Outside Jurisdiction
Knowing the signs of stroke can save your life
LED Lights Safer for Bike Riders and Pedestrians
Lawsuits Against Lawyers for Negligence in the Representation on the Rise
Medical Malpractice
Medical Malpractice Statute Requiring Affidavit Constitutional
Medical Negligence--Informed Consent
Medical Negligence--The Standard of Care
Negligence--failure to use reasonable care
New 9th Circuit Case--Tribal Immunity bars dram shop & negligence claims
New Arizona Case - Expert Affidavit
New Arizona Case - Expert Witness Qualification
New Arizona Case - Governmental Immunity
New Arizona Case - Insurance Reservation of Rights
New Arizona Case - Notice of Claim
New Arizona Case - Notice of Claim
New Arizona Case - Pleadings
New Arizona Case - Statute of Frauds
New Arizona Case - Taxable Costs
New Arizona Case Decides Timliness of Request for Fees and Rule 11 Sanctions
New Arizona Case: Indemnity Agreement Raises Fact Questions
New Arizona Case: Liability Limitation in Contract Upheld
New Arizona Case: Punitive Damages Survive Death/ Loss Enjoyment of Life Damages Do Not Survive Death
New Arizona Supreme Court Case Explains How Class Representatives Comply with Notice of Claim Statute
New Court of Appeals Case on NonParty at Fault Designations, Liquidated Damages and Rule 68 Sanctions
New Court of Appeals Decision Holds Summary Judgment is not a Discovery Sanction
No Right to Appeal Denial of Motion for New Trial Based Upon Granting of Partial Summary Judgment
No Right to Second Notice of Change of Judge After Case Consolidation
Nonparty not Bound by Protective Order
Notice of Claim is Affirmative Defense Which is Waived if not Pled in Answer, Reply to Counterclaim or 12 (b) Motion
Notice of Claim--Factual Support for Damage Amount Minimal
Notice of Claim?Factual Support for Damages and Negligent Failure to Identify Dead Body
Notice of Default Must Include Defendant's Apartment Number When Mailed
Offer of Underinsured Motorist Coverage Should be in Spanish
Our Results
Parents May Assign Right to Recover Child's Medical Expenses to Child and Toll Statute of Limitations
Patients Injured by Az Dept of Health and its Agencies Can Sue
Personal Jurisdiciton in Az in Tort Case Requires "Purposeful Direction" of Activities to Arizona
Pet is Personal Property so no Emmotional Distress Damages for Pet's Death
Pool Filters Can Explode and Maim and Kill
Private Arbitration Rules Strictly Enforced
Products Liability
Qualified Immunity for Govt Design of Culvert That Causes Flooding
Qualified Immunity from Defamation Claim when Reporting Medical Misconduct
Records of Dangerous Fire Causing TV One Step Closer to Release
Reference to Public Records in Motion to Dismiss does not Convert it to Motion for Summary Judgment.
Right to Intervene is Procedural and Therefore Can Be Exercised Retroactively
School Board Must be Served with Notice of Claim
Scope of Discovery of Expert Bias
Seat Belt Use Key in Auto Products Liability Case in Arizona
Sedona Sweat Lodge Tragedy
Serving Notice of Claim on Jural Entity While Naming Nonjural Entity Preserves Claim
Settlement Agreement May be Enforced When Accepted After Deadline
Sexual Assualt Case Settles for $850,000-University Must Revamp Rules
Sheriff, Guards and Employees May be Sued for Failing to Provide Medical Care to Inmate
Social Networking: Be Careful What You Share
Spinal Cord Injury
State Tort Claims Not Preempted by Manufacturer's Voluntary Product Replacement
State Tort Claims Not Preempted for Failure to Warn Regarding Generic Drug
State of Arizona can Assert Lien Rights for Medical Expenses Paid State Employee against Tort Recovery
Statements Made in Private Arbitration are Absolutely Privileged
Statute of Limitations on Legal Malpractice in Handling Bankruptcy Action
Steroids and our Youth--Can Coach be Liable?
Subsequent Remedial Measure Inadmissible to Counter Claim Intersection was Safe and Plaintiff was Comparatively at Fault
Summary Judgment is not a Discovery Sanction
Summary Judgment on Plaintiff's Common Law Fraud Claim not Appropriate Where Inferences Could Favor Defendant
Supreme Court Rules on "Reverse Discrimination."
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United States Supreme Court Holds State Tort Claim for Failure to Warn not Preempted
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What to Do if You are in an Auto Accident
What to do if You are Involved in an Auto Accident--Part II Injuries
When Supersedeas Bond May be Less than Judgment
Worker's Comp Bad Faith Action Includes Traditional Tort Damages
Wrongful Death Damages not Allowed Under Vulnerable Adult Statute
eBay Seller in Michigan Safe from Lawsuit in Arizona

Vicarious Liability for Lent Employee

Posted by: Ted Schmidt
November 05, 2009
Topic: Asserting 5th Amendment in Civil Action Creates Inference of Guilt

Torts—General Employer’s Vicarious Liability for Lent Employee

Tarron v. Bowen Machine & Fabricating, Inc., 222 Ariz. 160, 213 P.3d 309 (App., Div. I, July 7, 2009)(J. Barker)

CONTRACT BETWEEN GENERAL EMPLOYER AND LENT EMPLOYEE IS NOT DISPOSITVE OF WHO HAS RIGHT TO CONTROL AND CAN BE VICARIOUSLY LIABLE FOR ACTS OF LENT EMPLOYEE

Plaintiff, a Phelps Dodge employee, fell through a gap between a platform and ramp at the mine that was created by defendant Bowen Machine’s employees.  Plaintiff sought to hold Bowen vicariously liable under the doctrine of Respondeat Superior  for their employees’ negligence.  Bowen defended claiming the employees had been “lent” to Phelps, Phelps had the right to control them and therefore Bowen was not vicariously liable for their actions.  The trial court granted partial summary judgment for the plaintiff on this issue finding Bowen’s contract with Phelps gave it control over the employees.  A jury awarded the plaintiff $1.5 million and found Bowen 60% at fault.  Bowen appealed arguing it and not plaintiff was entitled to summary judgment on the issue of control of the lent employees.

First the Court of Appeals set forth the “lent employee” doctrine which holds when a general employer (Bowman) lends an employee to a special employer (Phelps) the lent employee is treated as the special employer’s employee unless the general has control or the right to control the lent employee.  The “right of control” as opposed to actual exercised control is the key.  Here the general retained the right to control in its contract with Phelps, but in fact Phelps exercised control in the manner in which the lent employees performed their work.

When, as here, both the general and special employer have control, liability should be allocated to the employer in the better position to take measures to prevent the injury.  Here the evidence was uncontroverted that Phelps in fact exercised exclusive control over these employees in their work involving the moving of the ramp.  Further, a Bowen supervisor testified that the contract which provided “[Phelps] will have no direction or control as to the method of performance of the work” did not apply to this specific job and in fact Bowen would have had no right to come in and tell them how to perform their work on the ramp.

Accordingly, the Court of Appeals held there was a question of fact for the jury as to who controlled the lent employees in the creation of the hazard and that partial summary judgment was inappropriate.