To determine borrowed servant status, a three pronged test is employed.

March 31, 2020

In the Court of Appeals of Georgia


This appeal involves the interplay of two bodies of law: employment and tort. Much of the interaction between these two types of law comes around to the responsibility that an employer has for its employees safety. Here, however, the connection centers around the nature of the relationship created when a company hires a contract worker, and asks one of its employees to supervise that worker.


Labor Ready for Not?


The basic facts are that Sprowson was an employee (the Defendant and Appellant) of Waste Pro, who had contracted with Labor Ready Southeast. Labor Ready provided employees to work for Waste Pro. One such employee, Villalobos, was contracted under “exclusive supervision” of Waste Pro, and while so employeed, was injured. According to Villalobos (the Plaintiff and Appellee), Sprowson drove a truck negligently and caused injuries to Villallobos, who subsequently received workers’ compensation benefits from Labor Ready for the injuries.


Villalobos’ injuries were the basis of the case at the trial court level. He filed a tort action against Waste Pro (in various business forms) and Sprowson. All of the defendants attempted to end the case by filing a motion for summary judgment, saying that Villalobos had no claim against them because of the relief he received through workers’ compensation. The various business entities of Waste Pro also sought to disassociate themselves from the claim, since Sprowson worked for Waste Pro South Carolina (rather than Waste Pro USA).


The trial court concluded “that O.C.G.A. § 34-9-11 does not bar Plaintiff from bringing a tort claim against Defendant Nelson A. Sprowson. However, O.C.G.A. § 34-9-11 does provide the exclusive remedy to the remaining Defendants.”


O.C.G.A. § 34-9-11 (a) provides:


  • The rights and the remedies granted to an employee by this chapter shall exclude and be in place of all other rights and remedies of such employee . . . and all other civil liabilities whatsoever at common law or otherwise, on account of such injury, loss of service, or death . . . No employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits. . . .


Who is Master to Whom?


A portion of this Court of Appeals decision involves sorting out the claims against the several defendants. For instance, the Court found that Defendant Sprowson could not be held liable in tort for the Plaintiff’s injuries, because Sprowson was “an employee of the same employer” as the Plaintiff. (Quoting Underwood v. Burt, 185 Ga. App. 381 (1987).) This conclusion rested on the Underwood Court’s conclusion that the Plaintiff here, Villalobos, was an employee of Labor Ready, even though he was a contract worker. The court here uses the term from common law (law that comes from cases, rather than statute), a “borrowed servant”: “[a] borrowed servant is, then, even though temporarily, ‘an employee of the same employer’ of any regular employee of the borrowing employer.” Underwood at 382.


What is a borrowed servant?

To determine borrowed servant status, a three pronged test is employed: “that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant.” Stephens v. Oates, 189 Ga. App. 6, 7 (1) (1988). For the purposes of the case at hand, the “special master” refers to the immediate employer of the Plaintiff, while the “general master” refers to the agency that sent the Plaintiff to work for Labor Ready.


In attempting to meet the third prong of the borrowed servant definition, the Defendant here pointed to the contract that was in place between Villalobos and Labor Ready, which included that that Labor Ready “will be solely responsible for selecting, hiring, disciplining, reviewing, evaluating and terminating its employees performing Services hereunder.” The Defendant uses clause this to draw a distinction between the Plaintiff being under the control of Waste Pro (the same company for whom the Defendant worked) and being under the control of Waste Pro South. The Defendant’s strategy here was to show that he could not be liable under tort, since both he and the Plaintiff worked for the same employer.


The Court agreed, and thus found that the Defendant could not be found liable in tort for the Plaintiff’s injuries.


In its decision, the Court dismisses with some other arguments that the Plaintiff brought. The main takeaway, however, is that by proper contract drafting, an employer can limit the liability of its employees when they are asked to supervise contract workers. Because both the Plaintiff’s and the Defendant’s employer were the same, the Court here overturned the trial court’s decision that the Plaintiff had a tort action against the Defendant.