Rule 23 Order filed May 23, 2013
Rule 23 Order withdrawn June 27, 2013
In an action for the injuries suffered by an ironworker when steel beams being unloaded by a crane operator fell on her, the entry of summary judgment for the owner of the crane based on the finding that the crane operator was a borrowed employee of the ironworker’s employer was reversed and the cause was remanded for further proceedings, since questions of material fact existed as to whether the crane operator’s status precluded summary judgment, including the crane owner’s right to discharge the operator and the control exercised by the ironworker’s employer over the crane operator.
Appeal from the Circuit Court of Cook County, No. 07-L-8478; the Hon. Eileen Mary Brewer, Judge, presiding.
Steven R. Levin, of Levin, Riback Law Group, P.C., and Alvin R. Becker and Matthew D. Elster, both of Beermann Pritkin Mirabelli Swerdlove LLP, both of Chicago, for appellant.
Michael Resis, Marcie Thorp, and Joseph M. Eichberger, all of SmithAmundsen LLC, of Chicago, for appellee.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.
¶ 1 Plaintiff Deirdre Hastings appeals from the trial court's order granting summary judgment to defendant Jefco Equipment Co., Inc. Hastings was an ironworker employed by third-party defendant Area Erectors, Inc., at the Sienna condominiums construction site in Evanston, Illinois. On March 5, 2007, Hastings' shoulder and leg were injured when a load of steel beams being hoisted by a 90-ton crane fell from its rigging onto Hastings. In her amended complaint, Hastings asserted claims for negligence and premises liability against Jefco, the owner of the crane. She also brought claims against Roszak/ADC, LLC, the general contractor; TR Sienna Partners, LLC, the owner of the premises; TR Sienna, Inc., its manager; and Rockford Ornamental Iron, Inc., the steel fabricating company.
¶ 2 The record, developed through discovery, shows that on the date of the accident, Hastings and other Area ironworkers were unloading steel beams from the bed of a flatbed truck. In order to transport steel from the truck to a "shake-out" site, from which the steel would be moved onto the structure being built, the ironworkers used a 90-ton hydraulic truck crane owned by Jefco and operated by Greg Windbiel. At the time of the accident, Hastings was standing in the shake-out area, waiting for Windbiel to deliver a load of six steel beams. As Windbiel lifted the beams, they began to pivot counterclockwise in the air. As the load approached Hastings, it bounced three times, approximately 8 to 10 inches each time. Hastings reached up with her left hand and grabbed one of the columns in order to guide it, but as she took her hand off the column, one of the eyes "popped off the hook" of the crane and two of the steel beams struck her in the chest. Hastings fell, and one of the beams landed on and broke her right leg.
¶ 3 After the parties conducted discovery, Jefco moved for summary judgment. The circuit court granted summary judgment to Jefco on Hastings' negligence claim, finding that because the crane operator during the accident, Greg Windbiel, was a borrowed employee of Area, Jefco was not liable for Hastings' injuries. The trial court also granted summary judgment to Jefco on Hastings' premises liability claim. The trial court later entered an order, pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010)), finding no just reason to delay the appeal. Focusing only on her negligence claim, Hastings' sole argument on appeal is that summary judgment was improper because questions of fact exist as to Windbiel's status as a borrowed employee.
¶ 4 We review the trial court's decision to grant summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102 (1992). Summary judgment is proper where the pleadings, admissions, depositions and affidavits demonstrate there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Ioerger v. Halverson Construction Co., 232 Ill.2d 196, 201 (2008); 735 ILCS 5/2-1005 (West 2010). We construe all evidence strictly against the moving party and liberally in favor of the nonmoving party. Buenz v. Frontline Transportation Co., 227 Ill.2d 302, 308 (2008). While summary judgment can aid in the expeditious disposition of a lawsuit, it is a drastic measure that should only be permitted where the movant's right is clear and free from doubt. Williams v. Manchester, 228 Ill.2d 404, 417 (2008).
¶ 5 An employee in the general employment of one employer may be loaned to another for the performance of special work and take on the status of a "borrowed employee" while performing the special service. Kawaguchi v. Gainer, 361 Ill.App.3d 229, 240 (2005). If an employee is a borrowed employee at the time of allegedly tortious conduct, the employee's general employer cannot be liable for such conduct and any vicarious liability would rest on the borrowing employer. Behrens v. California Cartage Co., 373 Ill.App.3d 860, 863-64 (2007).
¶ 6 Our supreme court has long recognized "that the criteria reiterated in the Illinois case law for the existence of the master-servant relationship is the right to control, which includes the power of discharge." Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 123 (1960). Illinois courts have identified several factors to determine whether an alleged borrowing employer has the right to control an allegedly borrowed employee: the manner in which the performance of the employee's duties is directed, the mode of payment, the right to discharge, the terms of any written contract between the employers, and the general employer's ability to substitute among employees loaned to the borrowing employer. Kawaguchi, 361 Ill.App.3d at 240; Saldana v. Wirtz Cartage Co., 74 Ill.2d 379, 390 (1978) (noting that factors to determine control include "the matter of hiring, the mode of payment, the right to discharge, and the manner of direction of the services" (internal quotation marks omitted)); see also Dowe v. Birmingham Steel Corp., 2011 IL App (1st) 091997, ¶ 30 (separating the "right to control" from factors such as the "right to discharge, " but noting that the right to control the manner in which the work is performed is considered to be the most important factor in determining status of borrowed employee). Other factors relevant to the question of borrowed employment include the level of skill required to perform the work; who deducts or pays for insurance, social security, and taxes on the employee's behalf; and the length of service for the special employer. Dowe, 2011 IL App (1st) 091997, ¶ 30; O'Loughlin v. ServiceMaster Co. Ltd. Partnership, 216 Ill.App.3d 27, 34 (1991).
¶ 7 "Whether a loaned employee status exists is generally a question of fact, but it constitutes a question of law if the facts are undisputed and capable of one inference." Prodanic v. Grossinger City Autocorp, Inc., 2012 IL App (1st) 110993, ¶ 15; Kawaguchi, 361 Ill.App.3d at 240. Our task is to review evidence in the record in a light most favorable to Hastings to determine if there are questions of material fact as to whether Windbiel was a borrowed employee of Area at the time of the accident.
¶ 8 Right of Area to Discharge Windbiel and Ability of Jefco to Substitute Employees
¶ 9 Hastings argues that there is a genuine issue of material fact as to Area's right to discharge Windbiel. "The alleged borrowing employer need not have the power to dismiss the alleged borrowed employee from his general employment; but, the alleged borrowing employer must have the power to dismiss him from the borrowed employment." Kawaguchi, 361 Ill.App.3d at 240 n.6.
¶ 10 In his deposition, Windbiel stated that he believed that Area had the authority to order him off the jobsite. But Brian Price, Area's foreman, testified that if Area wanted a different operator, it would find a different crane to lease:
"Q. If the crane lessee, in this case Area, had felt that the crane operator was incompetent or dangerous or didn't belong operating the crane, they could order that guy or girl off the jobsite, correct?
A. I don't know that we could tell them off the jobsite, but we wouldn't be operating with the crane, we ...