Opinion
Rehearing Denied Nov. 6, 1975.
Page 1305
Hoffman, McDermott & Hoffman, Gerald P. McDermott, Denver, for plaintiff-appellee.
Yegge, Hall & Evans, Edward H. Widmann, Denver, for defendant-appellant.
SMITH, Judge.
Plaintiff, Thomas G. Kurfess, was injured while helping to place bundles of decking on the roof of a partially constructed building. In an action tried on comparative negligence principles against defendant Frohlick Crane Service, Inc., a jury verdict resulted in a judgment of $42,000 for plaintiff. Defendant appeals, and we affirm.
At the time of the accident, plaintiff was employed by Hensel-Phelps Construction Company at the Greeley Mall Shopping Center. Hensel-Phelps had leased a crane and operator from the defendant for work on the project. On the day of the accident, plaintiff, three other Hensel-Phelps ironworkers, and the crane operator were loading bundles of decking on the roof in preparation for the next day's work.
The Hensel-Phelps employees designated the bundles to be raised, and the crane operator delivered the boom to the area of the bundle. The ironworkers loaded the decking and then signaled the crane operator to lift the bundles. When a bundle reached the roof of the building, the ironworker there (plaintiff) indicated its destination, since the crane operator sometimes was unable to see the load during that part of the operation.
At the time of the accident, a bundle of decking had been lifted to plaintiff on the top of the building. Plaintiff took hold of the bundle while it was still attached to the cable and started walking backwards across the roof joists. Because of improper operation of the crane, the cable broke, causing plaintiff to fall to the ground, injuring him severely.
Defendant denied any negligence on the part of the operator and alleged as affirmative defenses contributory negligence and negligence of a co-employee by asserting that the crane operator was an employee of Hensel-Phelps at the time of the accident. The case was submitted to the jury on comparative negligence instructions. The jury returned a special verdict finding 80% Of the negligence to be attributable to defendant and 20% To the plaintiff.
Two rulings of the trial court form the basis of defendant's appeal. At the conclusion of the presentation of evidence by the parties, the court ruled, as a matter of law, that the crane operator was an employee of defendant and so instructed the jury. On plaintiff's motion, the court also ordered stricken that portion of the lease rental tickets, which contained an indemnification agreement wherein lessee, Hensel-Phelps, agreed to indemnify the lessor Frohlick against any claims arising from lessee's operation of the crane.
I.
An employee may be loaned or hired out by his employer for a particular job so as to become, for that purpose, the employee of the party to whom he is loaned or hired out and to impose upon the latter the usual liabilities of an employer. Landis v. McGowan, 114 Colo. 355, 165 P.2d 180. In such circumstances the original employer is not liable for the negligent acts of his employee, provided that he has yielded full control of the employee to the third party so that the latter determines both the work to be done by the employee and the manner in which he is to do it. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975; This case is controlled by Chartier v. Winslow Crane Ser. Co., 142 Colo. 294, 350 P.2d 1044, the facts of which are substantially identical to the present case. Plaintiff Chartier was an ironworker engaged in similar work as Kurfess at the time of his injury. Defendant Winslow Crane Service, like Frohlick, was a company in the business of renting cranes and crane operators. In both cases, the crane operator was originally employed by the defendant; the maintenance of the machine and the manner in which it was operated were the responsibilities of the defendant; and the employees of the contractor gave directions to the crane operator by means of hand signals.
In Chartier the court concluded that the crane operator remained in the employ of the crane company. To support its conclusion, it cited: (1) The value of the crane; (2) the fact that the operator was a highly trained specialist; (3) the defendant crane company's responsibility for maintenance; (4) the fact that the defendant was generally engaged in the business of leasing cranes and operators; and (5) the fact that the employees of the contractor did not instruct the operator as to the manner in which his job was to be performed. The record in this case reveals no significant differences from Chartier with respect to these considerations. Therefore, we conclude that neither Hensel-Phelps nor its employees exercised such exclusive control over the crane operator so as to change his status to that of a co-employee of plaintiff.
Defendant argues that this issue should have been submitted to the jury, citing Great Western Sugar Co. v. Erbes, 148 Colo. 566, 367 P.2d 329. In that case, however, the considerations found dispositive in Chartier were disputed as matters of fact. In the instant case, the only issue is the legal effect of the undisputed facts.
The question presented on a motion to direct a verdict in cirmumstances such as these is whether, assuming the truth of all evidence in favor of the party against whom the motion is made, together with such inferences as may reasonably be drawn from it, a jury verdict in favor of that party would have to be vacated on a motion for a new trial. If so, the court may not submit the question to the jury. See Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212. And, considering the legal implications of the above facts, we conclude that a jury verdict in favor of the defendant would, on the basis of Chartier, have to be vacated upon a motion for a new trial or reversed upon appeal. Therefore, the trial court properly granted plaintiff's motion for a directed verdict on this issue.
Defendant cites a number of cases holding, under circumstances analogous to the facts here, that there was such a shift in the employee's position that the general employer was not liable for the employee's negligence. That line of authority was acknowledged and specifically rejected in Chartier.
II.
Defendant also argues that the trial court erred in excluding from the evidence the indemnification agreement contained in the lease rental tickets, asserting, in essence, that this agreement had probative value on the issue of whether the crane operator was a loaned servant. In the circumstances of this case, we disagree.
The loaned servant rule, as asserted here, is an affirmative defense directed against the plaintiff. However, while defendant and plaintiff's employer are free contractually to define the legal responsibility between themselves for any negligence by defendant's employee, their agreement does not affect the rights of plaintiff against them. Rumberger v. Welsh, 131 F.2d 384 (2d Cir.); Zancanaro v. Hopper, 79 Ariz. 207, 286 P.2d 205. Hence the indemnification agreement was properly excluded as not relevant to the issues presented, and the specific facts showing the extent to which defendant and plaintiff's employer exercised actual control over the crane operator are determinative.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.