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Ruelas v. Staff Builders Personnel Services1/30/2001
AFFIRMED
In the course of receiving an enema while a patient at Pima County's Posada del Sol Health Care Center, appellant Billie Ruelas was abused by nurses provided by appellee Staff Builders.() On appeal, Ruelas challenges the trial court's grant of summary judgment to Staff Builders on Ruelas's claims against it for vicarious liability, punitive damages, and negligent hiring/retention.() We affirm because the nurses were lent employees under the control of Posada del Sol while administering the enema and because no genuine issue of material fact exists as to Ruelas's negligent hiring/retention claim.
BACKGROUND
In reviewing the grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. Link v. Pima County, 193 Ariz. 336, , 972 P.2d 669, (App. 1998). And we independently determine whether there are any genuine issues of material fact and whether the court properly applied the law. Toy v. Katz, 192 Ariz. 73, 85, 961 P.2d 1021, 1033 (App. 1997).
On November 9, 1994, Staff Builders purchased a staffing agency that contracted with Posada del Sol to provide nurses to cover staffing shortages. On November 20, Staff Builders sent several of its nurses to Posada del Sol. Posada del Sol instructed two of those nurses, who frequently worked at the facility, to give Ruelas an enema. During this procedure, the nurses abused Ruelas.
VICARIOUS LIABILITY
Ruelas claims the trial court erred in finding that the lent employee doctrine precluded Staff Builders' vicarious liability for the nurses' misconduct. A lent employee is employed by a general employer and is "lent" by the general employer to a special employer for certain work. 27 Am. Jur. 2d Employment Relationship § 6 (1996). Here, Staff Builders is the general employer that employed the nurses and Posada del Sol is the special employer.
" general employer is vicariously liable for the tortious conduct of a lent employee only if the general employer has control of or the right to control the performance of the lent employee's work." McDaniel v. Troy Design Services Co., 186 Ariz. 552, 553, 925 P.2d 693, 694 (App. 1996). See also Lee Moor Contracting Co. v. Blanton, 49 Ariz. 130, 136, 65 P.2d 35, 37-38 (1937) ("Control or right to control determines liability."). Although both the general and special employer may have some control in different aspects of their relationship with the employee, the focus for liability purposes is on which employer had control of the details of the particular work being done at the time of the injury-causing incident. See McDaniel, 186 Ariz. at 556, 925 P.2d at 697 (citing Hartford Insurance Group v. Mile High Drilling Co., 292 N.W.2d 232, 235 (Mich. App. 1980), for proposition that "test is whether in the particular service loaned employee is performing he continues under control of original employer"); see also Lee Moor, 49 Ariz. at 133, 65 P.2d at 36 (in holding employer vicariously liable under respondeat superior, "it is essential to show the one committing the wrong . . . was in the doing of the act the servant of the person attempted to be charged") (emphasis added); Restatement (Second) of Agency § 227 cmt. a (1958) (whether general or special employer liable depends on specific act in question). A lent employee, therefore, may be the servant of the general employer as to some acts and of the special employer as to others. See Lee Moor, 49 Ariz. at 135, 65 P.2d at 37; Restatement (Second) of Agency § 227.
In McDaniel, the court's majority held that the general employer's "control over the administrative
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