Cromer's statement at its most helpful to him, it would simply be an insufficient basis for a jury finding that the Behr laborers were not under the control of Green in regard to the manner in which the work on the furnace relining was to be done, in light of the rest of the record, including the remainder of Cromer's own testimony.
Thus, the first and most important factor in considering application of the loaned employee doctrine, whether the new employer possessed the right to control the manner in which the work is done and whether the original employer delegated or released that right, points conclusively to the laborers being loaned employees of Green. Such a conclusion finds support in the deposition testimony of Hopper, a Behr supervisor who oversaw a turnings dryer close to the furnace project site on several days during the project. Hopper was under the impression that all of the employees working on the furnace relining project were Green's employees and none were Behr's employees.
None of the other factors considered in applying the loaned employee doctrine take away from this conclusion. First, the nature of the work on the furnace relining project was clearly different from what the laborers would normally do for Behr, since going into the project they had no knowledge of the techniques to be used and, according to Cromer's own deposition testimony, the brick masons had to take into account the laborers' lack of knowledge and experience in giving them instruction. "A change in the nature of one's work from the usual work done for the first employer to some special or different work done for the second employer indicates a loaned-employee relationship." Mosley, 394 N.E.2d at 1238 (citing Freeman v. Augustine's Inc., 46 Ill. App. 3d 230, 360 N.E.2d 1245, 4 Ill. Dec. 870 (5th Dist. 1977)); Russell v. PPG Indus., Inc., 953 F.2d 326, 331 (7th Cir. 1992).
Second, the Behr laborers impliedly acquiesced to the loan by accepting Green's control and supervision over their work. For an employee to have been loaned, the employee must have formed a new contract of employment with the borrowing employer. A.J. Johnson, 82 Ill. 2d 341, 412 N.E.2d 477 at 481-82, 45 Ill. Dec. 126. This consideration, however, merely requires that the employee impliedly acquiesced to the new employment situation, which is shown "where the employee was aware that the project to which he was assigned was being performed by the borrowing employer and the employee had accepted the borrowing employer's control over the work." Russell, 953 F.2d at 332. In the present case, the laborers accepted instruction from the brick masons and it was certainly readily apparent to the laborers that their work instructions came from Green employees and that Green was in charge of the furnace project site. See A.J. Johnson, 412 N.E.2d at 482 (the fact that loaned employee was aware of borrowing employer being in charge of work and accepted borrowing employer's control, in complying with instructions as to starting, stopping, and break times and how to perform work, showed acquiescence to new employment situation).
Third, the method of payment does not take away from a finding that Behr loaned the laborers. While it is not disputed that Behr paid the laborers' wages, "the mere fact that an employee does not receive his wages from the [borrowing] employer will not defeat the finding of a loaned employee situation." A.J. Johnson, 412 N.E.2d at 481. This is especially true if, as here, the employer was "merely [a] 'conduit'" through which the employee was paid. Russell, 953 F.2d at 330 (characterizing and quoting Highway Ins. Co. v. Sears, Roebuck & Co., 92 Ill. App. 2d 214, 235 N.E.2d 309, 313 (1st Dist. 1968)). In the present case, the contract between Behr and Certified required Behr, who paid for the furnace project, to provide the laborers for the use of Green, who performed the work on the furnace project. In essence, then, the use of the laborers was in lieu of additional payment by Behr to Certified for the furnace relining. Seen in this way, Behr's payment of the laborers' wages was simply as a mere conduit, in that it was a direct offset against the price Certified would charge Behr for Certified's work on the project.
Finally, the Illinois courts applying the doctrine generally consider whether the second employer had a right to discharge the loaned employee, although they place differing emphasis on this factor. Compare Richard v. Illinois Bell Tel. Co., 66 Ill. App. 3d 825, 383 N.E.2d 1242, 1249, 23 Ill. Dec. 215 (1st Dist. 1978); with County of Tazewell v. Industrial Comm'n, 193 Ill. App. 3d 309, 549 N.E.2d 805, 809, 140 Ill. Dec. 154 (4th Dist. 1990). In the present case, there is no indication whether Green could have actually terminated the employment of any of the laborers. However, "Illinois law does not require [the second employer] to have the power to terminate (the loaned employee]'s employment altogether; it requires only that [the second employer] have the power to discharge [the loaned employee] from his work with [the second employer]." Russell, 953 F.2d at 331 (emphasis in original); see Evans v. Abbott Products, Inc., 150 Ill. App. 3d 845, 502 N.E.2d 341, 344, 104 Ill. Dec. 78 (1st Dist. 1986). Here, the only relevant facts in the record, that Green determined on a shift-by-shift basis how many laborers would be needed and the complete control over the laborers' work exercised by Green, make an inference of such power reasonable and, more importantly, make the opposite inference, that Green could not have dismissed one of the laborers from work on the furnace lining, unreasonable.
Thus, the "main criterion" identified by the Illinois Supreme Court for determining whether an employee has been loaned from his original employer to a borrowing employer, the right to control the employee with respect to the work performed, points conclusively to the Behr laborers having been loaned to Green. Further, other factors considered in this context either add to or do not detract from this conclusion. The laborers were wholly under the control of Green and wholly free from the control of Behr, and thus any possible negligence on their part cannot be imputed to Behr. For this reason, summary judgment for Behr on Count I, the negligence claim, is appropriate.
2. Structural Work Act
Behr contends the Structural Work Act does not apply to it because it did not "have charge of" the work performed on the furnace. The Structural Work Act requires that "any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure" shall comply with the provisions of the Act. 740 ILCS 150/9 (1993) (emphasis added). Under the Structural Work Act, ladders and other supports must be erected or constructed "in a safe, suitable and proper manner" and placed and operated to provide "proper and adequate protection to. . .life and limb." 740 ILCS 150/1 (1993).
The Structural Work Act is intended to make liable "those having some responsibility and opportunity to prevent dangerous work methods at the construction site." Ryan v. E.A.I. Constr. Corp., 158 Ill. App. 3d 449, 511 N.E.2d 1244, 1249, 110 Ill. Dec. 924 (1st Dist. 1987). More than mere ownership of the site of the work is required for liability under the Structural Work Act. Emberton v. State Farm Mut. Auto. Ins. Co., 71 Ill. 2d 111, 373 N.E.2d 1348, 1353, 15 Ill. Dec. 664 (1978). In fact, to determine whether a particular defendant "had charge of" the work, a ten-factor totality of the circumstances test is applied. Coyne v. Robert H. Anderson & Assoc., 215 Ill. App. 3d 104, 574 N.E.2d 863, 865, 158 Ill. Dec. 750 (2d Dist. 1991). This test has been cited with approval by the Illinois Supreme Court. Id.; see Simmons v. Union Elec. Co., 104 Ill. 2d 444, 473 N.E.2d 946, 949-50, 85 Ill. Dec. 347 (1984) (referring to Chance v. City of Collinsville, 112 Ill. App. 3d 6, 445 N.E.2d 39, 42, 67 Ill. Dec. 747 (5th Dist. 1983)); see also Damnjanovic v. United States, 9 F.3d 1270, 1273 (7th Cir. 1993) (applying Chance factors); Savic v. United States, 918 F.2d 696, 700 (7th Cir. 1990) (same), cert. denied, 116 L. Ed. 2d 38, 112 S. Ct. 62 (1991). Thus, a defendant "had charge of" the work if it:
(1) supervised and controlled the work; (2) retained the right to supervise and control the work; (3) constantly participated in the ongoing activities at the construction site; (4) supervised and coordinated subcontractors; (5) took responsibility for safety precautions at the jobsite; (6) had authority to issue change orders; (7) had the right to stop the work; (8) owned the equipment at the jobsite; (9) was familiar with construction customs and practices; and (10) was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits.