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Faust v. Pumpco, Inc.

To determine whether a worker is a borrowed servant for purposes of allocating responsibility for injuries sustained in the course of employment, factors to be considered include the nature of the project, the length of the special employment, the type of machinery furnished and any contract language between the two parties addressing the right to control.

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OPINION

Ronnie Faust appeals from a summary judgment rendered against him in his personal injury suit. Faust, an employee of Southwestern Gas Pipeline, was seriously injured when he drove his employer’s truck into a gate at Southwestern Gas’s Lyons yard. The gate was an oil field gate constructed for Southwestern Gas Pipeline by Abe Mattox, an employee of Pumpco. The question is whether Mattox, in constructing the gate, was acting as an employee of Pumpco, thus making Pumpco potentially liable, or was a borrowed servant of Southwestern Gas.

Pumpco filed a traditional motion for summary judgment under Tex. R. Civ. P. 166a(c). To be entitled to summary judgment, a movant must establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex. App.-Texarkana 1989, no writ). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff’s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the non-movant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the non-movant is taken as true, and all doubts as to the genuine issue of material fact are resolved in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

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