John P. Figura, You're in the Army Now: Borrowed Servants, Dual Servants, and Torts Committed by Contractors' Employees in the Theaters of U.s. Military Operations

• Jurisdiction: United States,Federal
• Publication year: 2008
• Citation: Vol. 58 No. 2

COMMENTS

YOU'RE IN THE ARMY NOW: BORROWED SERVANTS, DUAL SERVANTS, AND TORTS COMMITTED BY CONTRACTORS' EMPLOYEES IN THE THEATERS OF U.S. MILITARY OPERATIONS

ABSTRACT

Tortious conduct by the employees of private contractors working for the United States federal government in theaters of overseas contingency operations represents a great source of vicarious liability for contractors. However, the employment relationship that gives rise to vicarious liability can be disrupted in a contingency operation because contractors' employees might work not under the exclusive supervision of the companies that pay them but, due to the exigencies of military operations, under the partial or exclusive supervision of the U.S. military.

This Comment observes that a contractor may be able to escape liability under the borrowed servant doctrine. As interpreted by most courts, the doctrine states that when one borrows the employee of another by assuming control of the employee's acts, only the borrowing employer is liable for torts committed by that employee. For a tort arising in the theater of an overseas contingency operation, a contractor defendant's successful invocation of the borrowed servant doctrine would negate any possibility of recovery, since the borrowing employer-the military-can claim sovereign immunity.

This Comment urges courts to avoid this negative outcome by applying the dual servant doctrine, which states that two employers are jointly liable for an employee's torts when they share control of the employee. The majority approach to this doctrine renders it incompatible with the borrowed servant doctrine and therefore obsolete. This Comment endorses a minority approach, the "shared spot control approach," the adoption of which would allow courts to apply the dual servant doctrine when required by the facts of a case without contradicting the borrowed servant doctrine. The shared spot control approach would allow plaintiffs to recover damages from contractors despite the government's sovereign immunity. It would also enhance courts' ability to offer outcomes appropriate to the facts of cases and consistent with the policy principles underlying tort law.

INTRODUCTION

An employee of a hypothetical private security contractor drives an armored sport-utility vehicle through a crowded neighborhood in Kabul, Afghanistan. In the truck's passenger seat sits a U.S. soldier serving as a monitor. Under a new (and hypothetical) Department of Defense program, the soldier is responsible for observing contractors' compliance with Pentagon rules and reporting violations to her superiors by radio. A senior employee of the contractor sits in the back seat.

The driver is speeding through the narrow streets and running red lights, a tactic he was taught by his employer to protect himself and the occupants of his vehicle from insurgent attack.¹The monitor, concerned that the driver may cause an accident, tells him to slow down. The senior employee sitting in the back seat of the truck says nothing, and the driver reduces his speed by a few miles per hour. Moments later, the driver drives the truck into an intersection, running a stop sign, and collides with a civilian vehicle driven by an Afghan businessman. The Afghani dies in the collision, leaving a widow and four children.

A military officer visits the home of the man's widow and offers her a condolence payment of $2,500, a fraction of her husband's lost earning power.²The widow declines the payment and sends the officer away. At the invitation of an American nonprofit organization, the widow enlists the services of a plaintiffs' lawyer and files a wrongful death suit against the contractor in a state court in the United States.³

After discovery, the contractor files for summary judgment on several alternative theories, one of which is that it cannot be vicariously liable for the driver's actions because the driver was the borrowed servant of the U.S. Army at the time of the accident. Under the borrowed servant doctrine, a general employer (in this case the private security contractor) who loans an employee (the driver) to a borrowing or "special" employer (the U.S. Army) is not vicariously liable for the employee's tortious acts.⁴The contractor supports the defense with a Fifth Circuit case, Trevino v. General Dynamics Corp., where the court held that contractors' employees working on a naval base in the United States were not borrowed servants of the Navy because the Navy did not sufficiently control them.⁵The contractor argues that the military controlled its employees in this case because the injury, unlike that in Trevino, occurred in the theater of an overseas contingency operation, where military personnel wield such control over the actions of contractors' employees that, for the purposes of tort liability, the military stands in the role of special employer and not merely of client.⁶The contractor argues that the Army's control of the employee negates any liability.

If the defendant contractor succeeds in its invocation of the borrowed servant doctrine, the victim's widow will be prevented from recovering damages. She cannot sue the Army for the driver's negligence because the doctrine of sovereign immunity renders it effectively judgment-proof.⁷

This hypothetical scenario highlights the deficiencies of the borrowed servant doctrine in tort cases in which a contractor is working under military control during an overseas contingency operation. This Comment argues that courts should apply the lesser known dual servant doctrine as an alternative. Part I argues that the borrowed servant doctrine too easily prevents recovery because the model courts use to interpret it-the "spot control" test-focuses on assertions of control by an alleged special employer without acknowledging the extent to which a general employer retains some measure of oversight.

Part II argues that courts should adopt the dual servant doctrine, which holds two employers jointly liable when they jointly control an employee.⁸To do so, courts need not abandon the borrowed servant doctrine or the spot control test, both of which are settled law in most jurisdictions in the United States.⁹Instead, by embracing a minority interpretation of the dual servant doctrine, which this Comment calls the "shared spot control" test, courts may apply either doctrine as the facts of a case demand. This Comment uses the hypothetical involving the automotive accident in Kabul to show that the dual servant doctrine enables courts to produce outcomes tailored to the facts of individual cases and consistent with the public policy principles that underlie tort law.

I. THE BORROWED SERVANT DOCTRINE AND WHY IT INVITES ABUSE IN A

CONTRACTOR TORT CASE

A contractor could invoke the borrowed servant doctrine by claiming that its employee was under not its own control but that of military personnel at the time the employee allegedly injured the plaintiff. Section A explains the borrowed servant doctrine and establishes that courts generally interpret it through what is called the "spot control" model. Section B explores a case arising from the Abu Ghraib prisoner abuse scandal to show how the doctrine would apply to a contractor tort. Section C returns to the Kabul hypothetical discussed in the Introduction to show how the doctrine could be misapplied in a contractor tort case and how such a misapplication would defy the public policy principles of tort law.

A. The Borrowed Servant Doctrine and the Spot Control Model

The borrowed servant doctrine states that when a general employer loans an employee to another, only the special employer is vicariously liable for the employee's torts.¹⁰As a rule, courts presume that a general employer retains control of the employee unless the alleged special employer has assumed control.¹¹The borrowed servant doctrine applies not to a sharing of employment but to a complete displacement of it,¹²consistent with the maxim that no one can serve two masters.¹³Conceptually, a borrowed servant trades one master for another.

The borrowed servant doctrine has drawn criticism from courts and commentators for decades.¹⁴This Comment does not engage with those critiques but simply observes that the majority of courts have settled on the doctrine and the spot control test used to apply it.¹⁵Under the spot control test, one becomes the special employer of another by assuming "the right to control the particular act [performed by that employee] giving rise to the injury."¹⁶

Courts applying this test distinguish spot control from "broad control," which is indicated by an employer's power to hire, train, pay, and fire an employee.¹⁷

This Comment uses the phrase "spot control approach" to refer to decisions in which courts decide the issue of borrowed employment entirely or primarily on the basis of spot control.

Because the spot control test assigns liability to the party with direct oversight, it offers considerable deterrent power.¹⁸As expressed by the Third Restatement of Agency: "Liability should be allocated to the employer in the better position to take measures to prevent the injury suffered by the third party. An employer is in that position if the employer has the right to control an employee's conduct."¹⁹

Most federal courts use the spot control test when they apply common law agency doctrine to federal statutes dealing with employment. Appellate courts in the Third, Fourth, Fifth, Seventh, and Ninth Circuits have followed the Supreme Court's lead²⁰in treating spot control as either the dispositive issue or the most important of several factors in establishing employment,²¹as have district courts in the First, Sixth, and Eleventh Circuits.²²The Second Circuit Court of Appeals has expressly declined to interpret the doctrine,²³but a district court in the circuit has embraced the spot control test.²⁴The Eighth Circuit Court of Appeals has addressed the issue only in state law diversity cases.²⁵The Tenth...