PJC General Negligence 2022

PJC 10.4

A GENCY AND S PECIAL R ELATIONSHIPS

PJC 10.4

Borrowed Employee—Disjunctive Submission of Liability of Lending or Borrowing Employer

QUESTION ______ On the occasion in question, was Don Davis acting as an employee of ABC Company or of XYZ Company ? An “employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished. An employee ceases to be the employee of his general employer if he becomes the “borrowed employee” of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and con trol the details of the particular work inquired about. For purposes of this question, the term “employee” includes “borrowed employee.” On the occasion in question, Don Davis could not have been an employee of both ABC Company and XYZ Company . Answer “ ABC Company ” or “ XYZ Company .” Answer: _______________ COMMENT When to use—replaces PJC 10.1. PJC 10.4 should be given only if the plaintiff sues both the lending and the borrowing employers, contending that one or the other is vicariously liable for the conduct of an employee or borrowed employee. This form can be used only in the situation of alternative theories of recovery; otherwise the question would contain an impermissible inferential rebuttal. Cf. Archuleta v. Interna tional Insurance Co. , 667 S.W.2d 120 (Tex. 1984) (proper to ask about total and partial incapacity as alternative theories; inquiry about partial incapacity is improper inferen tial rebuttal if only total incapacity is claimed). Source of definition. For discussion of the “borrowed employee” (sometimes called “loaned employee” or “special employee”) doctrine, see St. Joseph Hospital v. Wolff , 94 S.W.3d 513, 537–38 (Tex. 2002); J.A. Robinson Sons, Inc. v. Wigart , 431 S.W.2d 327, 334 (Tex. 1968), overruled on other grounds by Sanchez v. Schindler , 651 S.W.2d 249, 251 (Tex. 1983); Producers Chemical Co. v. McKay , 366 S.W.2d 220, 225–26 (Tex. 1963).

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