Navigating the ‘Borrowed Servant’ doctrine

In the world of construction and heavy equipment operation, crane operators play a critical role in ensuring that projects are completed safely and efficiently. A concept that every crane operator should understand is the borrowed servant doctrine- a legal principle that can have significant implications in the event of a jobsite accident. This article will provide a refresher on the borrowed servant doctrine, explore how it applies to crane operators, and why it matters.

The borrowed servant is treated as the employee of the second employer for legal purposes, particularly in cases involving liability for workplace injuries or accidents. Photo: Adobe Stock

Who’s liable?

The borrowed servant doctrine is a legal principle used in workers’ compensation law, as well as tort cases. It refers to a situation where an employee (the “borrowed servant”) is temporarily assigned to work under the direction and control of another employer (the “special employer”), while still technically being employed by their original employer (the “general employer”). In this scenario the borrowed servant is treated as the employee of the second employer for legal purposes, particularly in cases involving liability for workplace injuries or accidents.

More simplistically, the doctrine allows a worker to be considered an employee of the company that temporarily oversees their work, even though they are still technically employed by another company. This can shift the responsibility for any workplace injuries or damages that occur during the time the employee is under the special employer’s control. Control is the crucial element of this analysis. The special employer must control the borrowed employee’s work- both in terms of what is being done and how it is done to apply.

Operator application

Thus far, this may seem like a lot of legal jargon that isn’t material to the day-to-day work of a crane operator. It is easy to feel that way, but this doctrine can be material to crane operators, and what kind of compensation you could ultimately receive in the event of a worksite accident. As you know, crane operators are often employed by one company but work at a construction site under the supervision of a customer. For example, a crane operator may be employed by a crane rental company and sent to a construction site where you operate your general employer’s crane under the direction of the general contractor. In such situations, you as the crane operator could be considered a borrowed servant of the general contractor, who would take on the title, and duties, of special employer.

This characterization brings about several legal implications, especially when it comes to liability and ultimately monetary settlements. In the event of an accident, injury or damage to property, the question arises: who is responsible for the incident- your general employer or the special employer temporarily supervising your work? If a crane operator is deemed a borrowed servant of the general contractor, then the general contractor may bear legal and financial responsibility for the accident, rather than your original, general employer.

Legal safety harness

Understanding the borrowed servant doctrine is critical for crane operators for several reasons:

Liability and legal protection

Crane operators must know that depending on their situation, their employer’s liability may not be the only factor at play in the case of an accident. The borrowed servant doctrine could shift legal responsibility to the party that is in control of their work at he time of the accident, which may not always be their direct or general employer. Knowing this can help operators better understand their rights and the potential risks of working under different scenarios.

Workers’ compensation

Since the borrowed servant doctrine can change who is responsible for an accident or injury, it can also impact workers’ compensation claims. If a crane operator is deemed a borrowed servant of the general contractor at the time of an injury, that company may be responsible for workers’ compensation benefits, even if the operator is employed by another company, the general employer.

Avoiding confusion

A lack of understanding about the borrowed servant doctrine can lead to confusion and delays when handling claims or accidents. Knowing this doctrine ahead of time can help crane operators communicate effectively with all parties involved – whether it is their primary employer, the construction company, or the general contractor – and avoid costly misunderstandings.

Legal Preparedness

In the event of a dispute or lawsuit, knowing the ins and outs of the borrowed servant doctrine can help crane operators navigate their legal options. By understanding how this doctrine could affect their case, crane operators can better prepare for negotiations or legal proceedings.

Behind the doctrine

The borrowed servant doctrine is a crucial concept for crane operators to understand. While it may seem like a legal technicality, the doctrine can have a significant impact on liability and workers’ compensation in the event of an accident or injury.

By recognizing the potential for liability to shift based on who has control over their work, crane operators can ensure that they are better prepared for any challenges that may arise on the job. Knowledge of the borrowed servant doctrine can help crane operators navigate their rights and responsibilities, ultimately leading to better protection for themselves and their employers in complex legal situations.

Laura Schoefer

Tyrone Sylva

THE AUTHORS

With more than 20 years’ experience of legal expertise, 14 years of claims leadership and a deep understanding of legal tort reform, Laura Schoefer is senior vice president for DUAL

Tyrone Silva is assistant vice president of risk management for DUAL.