Hill v. Six Flags Over Georgia, Inc.

270 S.E.2d 914, 155 Ga. App. 457, 1980 Ga. App. LEXIS 2621

• Court: Court of Appeals of Georgia
• Decided: July 16, 1980
• Docket: 59591
• Status: Published

Opinions

McMurray, Presiding Judge.

This case involves the grant of a motion for summary judgment with reference to whether or not an iron worker was a borrowed servant of Six Flags Over Georgia, Inc. Plaintiff in this case was an iron worker who was hurt on the job at Six Flags on the “Mind Bender” amusement ride. This tort action is against Six Flags for an injury allegedly resulting from the negligence of employees of this defendant.

On motion for summary judgment the iron worker-plaintiff testified (by affidavit) that his union would not allow its individual members to work for anyone other than a licensed contractor who had signed an employment agreement with its local union. Six Flags was not on the approved list of contractors. Six Flags had employed Jake Heaton Erecting Company, Inc., which had a contract with the union, to send out two iron workers who were certified welders. Plaintiff contends, and testified by deposition and by affidavit, that he was hired by “Jake Heaton Erectors” and sent by Heaton to work at Six Flags, along with his “foreman,” one “Buster Newman,” to do any needed job assignments given by the Six Flags supervisor “to Buster Newman, my foreman, and Newman would then give me the work assignments. I did not have to receive or obey any orders from Six Flags employees or supervisors.”

The trial court apparently granted defendant’s motion for summary judgment on the ground that plaintiff was a borrowed servant whose exclusive remedy lies under the provisions of the Workers’ Compensation Act. See Code Ann. § 114-103 (Ga. L. 1972, pp. 929,930; 1974, pp. 1143,1144); U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182 (196 SE2d 133). Plaintiff deposed he has “received Workers’ Compensation payments through the insurer for Jake Heaton Erectors.” Plaintiff appeals. Held:

As an issue of material fact remains, summary judgment should not have been granted, albeit the preponderance of the evidence may show these iron workers/welders were borrowed servants and probably violative of the union contract. The plaintiff was either working under the foreman or he was not. Further, the evidence shows that all payroll, social security, income tax withholdings, etc., were prepared by Jake Heaton Erecting Company, Inc., and these were the employees of the steel erecting company. Certainly, if the steel erector’s employees did not perform the contract between Six Flags and Heaton, it would be breached. But an issue remains as to whether or not they were borrowed servants or if Newmon (“Buster Newman”), the other employee, was the “foreman.” On summary judgment plaintiffs evidence may not be disregarded even though the preponderance of the evidence might show otherwise at a jury trial.

This case is very similar on its facts to that of Georgia-Pacific Corp. v. Corbin, 137 Ga. App. 37, 40-41 (222 SE2d 862), involving an alleged borrowed servant although that case was affirmed after jury determination. This court, at page 40, concluded that there was sufficient evidence “from which a jury could find that there was no assent on plaintiffs part necessary to the creation of a valid contract of employment between himself and... [the alleged new employer]... and that he was hired... [by another]. ” That decision goes on to hold at page 41 that the plaintiff is not bound by a secret agreement between the so-called alleged employers in making him a borrowed servant and further holds that “notice to the employee is necessary before another can claim him as a servant.” Clearly, plaintiffs evidence here is that he was never notified that he was a borrowed servant. On the contrary, his testimony is that he worked under a foreman of “Jake Heaton Erectors.” Further, in Flowers v. U. S. S. Agri-Chemicals, 139 Ga. App. 430, 431 (2) (228 SE2d 392), one of the tests for the determination of a borrowed servant is that the general master must have no such control over the servant at the time in question. The evidence is in conflict here as to whether the general master, Jake Heaton Erecting Company, Inc., was always in control of this employee, if you believe the testimony of the plaintiff.

Argued March 12, 1980 Decided July 16, 1980 Rehearing denied July 30, 1980 Bobby Lee Cook, Jr., for appellant. Ronald L. Reid, Charles T. Huddleston, Vickie J. Cheek, for appellee.

Construing the testimony most strongly in favor of the party opposing the motion for summary judgment here, that is, the plaintiff, it is quite clear that an issue of material fact remains as to whether plaintiff is entitled to maintain his suit against Six Flags Over Georgia, Inc. See Holland v. Sanfax Corp., 106 Ga. App. 1 (1), 4 (126 SE2d 442); Simpson v. Dotson, 133 Ga. App. 120, 122 (4) (210 SE2d 240); Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552-553 (181 SE2d 866); Whitehead v. Capital Automobile Co., 239 Ga. 460, 462 (238 SE2d 104).

Judgment reversed.

Deen, C. J., Quillian, P. J., Shulman, Banke, Birdsong, Carley and Sognier, JJ., concur. Smith, J., dissents.