Summary Judgment in Head Injury Case – “Borrowed Servant” Doctrine

Attorney Courtney Mayo successfully obtained summary judgment on behalf of a subcontractor who installed granite curbing during a roadway construction project. The plaintiff bicyclist alleged that he struck a hole while riding down an asphalt ramp or raised crosswalk area in a construction zone. The plaintiff alleged that his front tire went into the hole, causing him to flip over his handlebars and strike the pavement. His claimed injuries included a compound linear left frontal skull fracture, a cerebral concussion, blurry vision, cervical sprain, multiple cuts and contusions. He also alleged significant back and right shoulder injuries following the accident.

The plaintiff filed suit against the contractor and subcontractor and alleged that the defendants failed to place adequate warning signs in the construction area, failed to make reasonable accommodation for bicycles in construction zones and failed to comply with the 2000 and/or 2003 Manual on Uniform Traffic Control Devices (“MUTCD”) which states that cyclists should have access and reasonably safe passage through a construction zone. Further, the plaintiff alleged he should prevail under the doctrine of res ipsa loquitor insofar as the subject accident was of the type of accident that does not normally occur in the absence of negligence.

Following written discovery and multiple witness depositions, Attorney Mayo moved for summary judgment on behalf of the subcontractor on the grounds that the subcontractor had completed its work at the site in June 2009 or several weeks prior to the plaintiff’s accident. Further, although several employees of the subcontractor continued to work as laborers on the project following the subcontractor’s departure from the project, those employees did not assist with the installation or the curb or any temporary asphalt ramp construction. Further, Mayo argued that the day laborers were working under the direction and supervision of the contractor during their continued employment at the site and were considered “borrowed servants.” Lastly, Mayo argued that the plaintiff had testified that the plaintiff had cycled through the area on numerous times prior to the alleged accident and was aware that the area was “under construction,” had described the area as “a mess” and, therefore, was aware of the site conditions (and responsible for his own safety) prior to the subject accident.

The plaintiff argued in his Opposition to Defendant’s Motion for Summary Judgment that the defendant failed to adequately plead the “borrowed servant” doctrine defense in its answer to the complaint. Further, plaintiff alleged that even if the “borrowed servant” doctrine could used as a defense, that the facts surrounding the use of the day laborers at the job site created a question of fact making summary judgment inappropriate.

In his decision, Judge Thomas Murtagh of Essex Superior Court found that the defendant had indeed incorporated the “borrowed servant” doctrine into its affirmative defenses and, further, that whether the “borrowed servant” doctrine relieved the subcontractor of liability was not a question of fact as alleged by the plaintiff. Murtagh further opined that the subcontractor had no supervisory presence nor any retained control over the work at the job site at the time of the plaintiff’s accident. Murtagh ruled that summary judgment should enter in favor of the defendant subcontractor.