Kiefer Concrete, Inc. v. Hoffman

562 P.2d 745, 193 Colo. 15, 1977 Colo. LEXIS 739
CourtSupreme Court of Colorado
DecidedMarch 21, 1977
DocketC-877
StatusPublished
Cited by21 cases

This text of 562 P.2d 745 (Kiefer Concrete, Inc. v. Hoffman) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kiefer Concrete, Inc. v. Hoffman, 562 P.2d 745, 193 Colo. 15, 1977 Colo. LEXIS 739 (Colo. 1977).

Opinions

MR. JUSTICE ERICKSON

delivered the opinion of the Court.

We granted certiorari to review Hoffman v. Kiefer Concrete, Inc., 37 Colo. App. 138, 546 P.2d 1275 (1975). We reverse and remand with directions to affirm the judgment of the trial court.

On May 5, 1972, Charles Hoffman was hired by Poudre Pre-Mix, Inc. to bolt to'gether sections of a cement silo. Several cranes were used in the operation, including one owned by Kiefer Concrete, Inc., a “sister” corporation of Poudre Pre-Mix.1 An employee of Kiefer Concrete was operating its crane, which was equipped with a cement bucket. Hoffman, who was riding in the cement bucket, was raised by the Kiefer Concrete crane to various locations on the perimeter of the silo. He directed the operator of the crane by giving hand signals. As he was being moved from one position to another, the cable holding the bucket broke, and Hoffman fell approximately twenty feet to the ground. He suffered serious injuries and sued Kiefer Concrete, alleging negligence. His wife sued for loss of consortium.

At trial, the jury was instructed on the loaned servant issue and was given a special verdict form similar to that found in C.J.I. 9:33 (Supp. 1976). The verdict form asked, inter alia, whether the defendant was negligent and whether that negligence, if any, was a proximate cause of the plaintiffs injuries. The jury responded in the negative to both queries. The trial court, accordingly, entered judgment for the defendant.

In reversing, the court of appeals held (1) that the trial court erred in submitting the “loaned servant” issue to the jury, and (2) that the “only reasonable, conclusion to be drawn from the evidence was that'the cable [18]*18broke as a result of ‘two-blocking” or “booming out,”2 and that the trial court “should have determined as a matter of law that [the crane operator] was negligent and that his negligence was the proximate cause of Hoffman’s damages.” Hoffman v. Kiefer Concrete, Inc., supra.

I.

Jury Determination of the Loaned Servant Issue

A key issue in this case was whether at the time of the accident the crane operator, whose negligence allegedly caused injury to the plaintiff, was the servant of Kiefer Concrete or Poudre Pre-Mix.

A “loaned servant” under Colorado law is an employee who is loaned or hired out to another master (hereinafter employer) for some specific service or particular transaction and who is under the exclusive control of that employer. The employer under whose exclusive control the loaned employee operates may then be held vicariously liable for the acts of the employee under ordinary principles of respondeat superior. See Bernardi v. Community Hospital Association, 166 Colo. 280, 443 P.2d 708 (1968); Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044 (1960); Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957) ; Landis v. McGowan, 114 Colo. 355, 165 P.2d 180 (1946); Thayer v. Kirchoff 83 Colo. 480, 266 P. 225 (1928); Colwell v. Oatman, 32 Colo.App. 171, 510 P.2d 464 (1973); see generally, J. Hynes, Agency and Partnership ch. 4 (1974); W. Seavey, Agency § 86 (1964); W. Sell, Agency § 95 (1975); Restatement (Second) of Agency § 227 (1958) .

The question of “loaned servant” status is generally an issue of fact for the jury. See Chartier v. Winslow Crane Service Co., supra; Colwell v. Oatman, supra. In departing from that standard, the court of appeals relied upon an analogy to Chartier v. Winslow Crane Service Co., supra, in which the facts were ostensibly “virtually indistinguishable” from those in the present case. The court of appeals held that the trial court should have entered a directed verdict that the operator was not a loaned servant to Poudre Pre-MIx. Hoffman v. Kiefer Concrete, Inc., supra. We find the analogy unconvincing. In Chartier, the court reversed a trial court for dismissing a case after a judgment for the plaintiff was entered by the jury. In approving the jury determination, the court held that the defendant was not exonerated from liability by reason of “loaning” its crane and operator to another employer. In Chartier, we said: “The present case impresses us as one in which the defendant’s responsibility continued. The evidence shows the crane in question to be very valuable ($50,000.00). It is shown that the operator is a highly trained specialist. The defendant has full responsibility for maintenance. The [19]*19defendant is generally engaged in leasing this type of equipment complete with an operator and with fuel and maintenance furnished. The operator is directed to do particular work, but from the standpoint of the general contractor, it is the result that is important. In other words, he does not direct the operator with respect to the manner of operation. The operator knows full well the amount of force asserted by the instrumentality and in turn the general employer should be held responsible under the law for negligent movements of the machine which resulted in injuries to others. Consistent with our holding that the operator, Lewis, owed a duty to exercise a high degree of alertness so as to prevent a catastrophe such as that which occurred here, we hold that even though there was some division of control that this did not operate to shift responsibility of the defendant for the actions of the operator of the crane.”3

The existence of some of these factors, e.g., the value of the crane, that the crane operator was a specialist, and the fact that both the crane and operator were “loaned,” is undisputed. However, there was a conflict in the evidence as to the amount of control retained by Kiefer Concrete. As noted above, the issue of “control” is the crucial factor in “loaned servant” analysis.4 Other factors are but circumstantial indicia of this key element. In this case, the lender and lendee were closely related corporations, there were several cranes simultaneously in operation beside the one borrowed from Kiefer Concrete, and the person “in charge,” plaintiff Hoffman, was an employee of Poudre Pre-Mix. Hfe had been hired specifically to direct this aspect of the construction project. Finally, Hoffman clearly gave specific hand signals to the crane operator which were intended to direct the location, speed, and route of the bucket in which he was riding.

[20]*20In difficult cases, the issue of “control” essentially becomes one of the most accurate characterizations of a set of facts:

“The giving of the signals under the circumstances of this case was not the giving of orders, but of information; and the obedience to those signals showed co-operation rather than subordination, and it is not enough to show that there has been a change of masters.”

Chartier v. Winslow Crane Service Co., supra; quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct.

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Kiefer Concrete, Inc. v. Hoffman
562 P.2d 745 (Supreme Court of Colorado, 1977)

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Bluebook (online)
562 P.2d 745, 193 Colo. 15, 1977 Colo. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiefer-concrete-inc-v-hoffman-colo-1977.