MachineCan the special employer be a defendant? Yes. It is a common situation for an employee who becomes injured to have been sent by a temporary staffing agency to do work at another company. The special employer is often the entity who is responsible for the injuries. Traditional thinking is that there is no third-party case because the special employer is the equivalent of an employer under the Labor Code. This is the general rule. However, tactics and techniques have been developed to highlight the risk of financial exposure to the special employer and its third-party insurance carrier creating settlement potential.

Injuries For example, Jose Salgado worked for Tri-State Staffing and was sent to Plascor, Inc., a manufacturer of plastic bottles to work as a laborer. He started out packing bottles and after a few weeks his job changed to a grinder where he would feed imperfect plastic bottles into a grinding machine. On the date of accident, he was working as a packer when he was told by a Tri-State supervisor to unjam a grinding machine. This task is something he had never done before. The Tri-State supervisor provided him with his own tools to open the grinder to access the hardened plastic around the rotor and blades. Jose was left on his own as to how to accomplish the task since he received no training. The means and methods were based on his own decision to not only tilt the hopper back exposing the top of the grinder, but also to take off the front metal plate and insert both hands into the grinder to remove the hardened plastic.  

The top of the hopper was open for 28 minutes before the accident as shown in Plascor's videotape. Suddenly, the rotor and blades began to spin causing the traumatic amputation of his left hand. There was an interlock switch that should have prevented the rotor from spinning.The Tri-State supervisor witnessed that the hopper was open and that the rotor was spinning. Plascor claimed that the interlock switch was functioning properly the next day. They also claimed that the plaintiff must have bypassed or overrode the interlock switch for the rotor to spin. Plascor replaced the interlock switch a week after the accident but failed to preserve it, claiming it was lost or misplaced.

At the time of the accident, plaintiff was an employee of Tri-State Staffing. He was also a special employee of Plascor. The issue was whether plaintiff was a special employee of Plascor at the time of the accident. Plaintiff alleged that Plascor did not exercise control or direction over his specific activities of unjamming the rotor which is a maintenance function.

The key legal case applicable to these facts is Thomas v. Edgington Oil (1977) 73 Cal.App.3d 61, p. 64 which holds: "We agree that, where the alleged special employer is not, at the time of the injury or in connection with the specific task to be performed, exercising control over the details of the work, no special employment exists even though, at some other time and in connection with some other task, such detail control may have been exercised." The determinative time as to whether the worker is a special employee is at the time of the accident. Mason v. Lake Delores Group, LLC. (2004) 117 Cal.App.4th 822, 832. "However, whether the right to control existed or was exercised is generally a question of fact to be resolved from the reasonable inferences to be drawn from the circumstances shown." Kowalski v. Shell Oil Co. (1979) 33 Cal.3d 168, 174-175.

Ten depositions were taken regarding all of the facts and details surrounding the time of the accident as to whether or not Plascor exercised control or direction over plaintiff unjamming the rotor. A question of fact was presented which created the financial risk to the special employer and its third-party insurance carrier.

Although Plascor claimed the interlock switch was working the next day, they did not make a video to prove that. Instead, they ordered and installed a new interlock switch for the grinder. Evidence of subsequent remedial conduct is admissible to impeach a defendant who claims that there was nothing wrong with the safety device on a machine at the time of the accident. Pierce v. JC Penny Company (1959) 147 Cal.App.2d 3; Ault v. International Harvester (1974) 13 Cal.3d 113 at p. 118. Plascor claimed that it lost or misplaced the interlock switch on the machine at the time of the accident. CACI 204 tells the jury to construe this fact of deliberate evidence destruction adversely to the defendant special employer.

This seemingly impossible case was settled for a confidential amount against the special employer and its third-party insurance carriers.

If you or your office has a substantial injury case that appears to be caused by the special employer, call us and let us take a look at the case to see if it has potential as a third-party case against the special employer and others. We understand the law of special employment and the intensity it takes to produce a favorable settlement.

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