Gary Boyd was injured when some large steel plates fell on him while he was working on a construction site. Boyd sued Southway Industrial Services, Inc. “Southway”,1 alleging that the negligence of its crane operator caused his injuries. Southway moved for summary judgment, asserting that it could not be held liable because the crane operator was a “borrowed servant” of the general contractor, Entech Corporation “Entech”, at the time of the accident. The trial court denied Southway’s motion for summary judgment and issued a certificate of immediate review. We granted Southway’s application for interlocutory appeal. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.2 We apply a de novo standard of review to an appeal of a denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.3 Further, in moving for summary judgment, “a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.”4 Because we conclude that, under the contract in force between Southway and Entech, the crane operator was a “borrowed servant” of Entech as a matter of law, we reverse the ruling of the trial court.
Properly viewed, the record shows that, on December 17, 2000, Entech, as the general contractor, leased a crane from Southway, a company in the business of leasing cranes, for a job at PCA’s plant involving moving large steel plates. The agreement provided, in pertinent part, that: Lessee Entech agrees that the equipment which includes, but is not limited to, any crane, lifting lug or device, chocker or shackle, and any other rigging equipment provided on the crane, equipment or otherwise, hereinafter referred to collectively as “the equipment” and all persons operating the equipment, including Lessor’s Southway’s employees hereinafter collectively referred to as the “Operator” are under Lessee’s exclusive jurisdiction, supervision and control. Lessee acknowledges that at all times while the Operator is on the job site that Lessee has the right to exercise complete direction and control over the Operator, that Lessor will exercise no control over the Operator and that Lessee has the exclusive right to discharge the Operator from the work he is doing, that Lessee may require Lessor to replace the operator with another of Lessor’s employees and that Lessee may put the crane operator to other work. Emphasis omitted. This contract was executed on behalf of Entech by its construction manager at the PCA site, Alan Hall. Pursuant to this agreement, Southway provided a crane and a crane operator, Timothy Rogers, who had worked for Southway for seven years. On December 17, 2000, Rogers was the only person from Southway at the construction site. That morning, he began using the crane to lift large rectangular steel plates, approximately ten feet wide and 20 to 24 feet high, into position. Due to windy weather conditions, Rogers exited the cab of the crane and consulted with Hall and other Entech employees about the wind conditions preventing further use of the crane at that time. While these workers were consulting together, a strong gust of wind blew some plates over onto Boyd, injuring him.
