Tarron v. Bowen Machine (CA1 7/7/09)


This is a long but lightweight opinion about the borrowed-servant doctrine.

Tarron worked for Phelps Dodge at the Miami smelter. He fell through a gap in a platform left by the removal of an access ramp. Bowen supplied the employees who had removed the ramp, so Tarron sued Bowen under respondeat superior. Bowen argued that the employees had been lent to PD and that Bowen had no right to control them. On cross-motions, the trial court granted summary judgment for Tarron on this issue. Bowen then lost at trial and appealed.

The Court of Appeals reversed, finding questions of fact. Tarron’s argument was that the contract between PD and Bowen assigned control to Bowen. But there was testimony that that provision didn’t apply or wasn’t followed. The court held that the contract was not necessarily controlling and that the jury can consider all the evidence.

Tarron also argued that Bowen could have respondeat superior liability even if PD did as well, since a servant can have two masters when the two have a joint right to control. But joint control is a question of fact, which was controverted here.

And that, 31 pages later, is it. It is hard to understand why this one was published. There is nothing novel here legally, which the opinion makes clear by discussing nearly all the cases at great – and entirely needless – length. The issues are neither complex nor unusual. And the opinion is hardly a sterling example of the art – it is ill-organized and much, much too long.