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McDaniel v. Troy Design Services Co.3/19/1996
e employers for their mutual benefit.
LeJeune, 365 So. 2d at 481; see also City of Somerset, 549 S.W.2d at 817; Strait, 103 Cal. Rptr. at 489; Keitz v. National Paving & Contracting Co., 214 Md. 479, 134 A.2d 296, 301 (Md. 1957); Gordon v. S.M. Byers Motor Car Co., 309 Pa. 453, 164 A. 334, 336 (Pa. 1932).
I would hold similarly in this case. The control test may indeed be, as the majority describes it, the "sine qua non" to decide whether a temporary employer has assumed sufficient control to accept vicarious liability for the temporary employee's acts. But in the dual employer context, the law unduly binds itself by treating vicarious liability as an either/or proposition. Particularly when, as here, the general employer is in the business of supplying temporary labor and the employee is acting within the course and scope of that business, I see no reason to relieve the general employer of concurrent liability for his employee's negligent acts.
For these reasons, I respectfully Dissent.
NOEL FIDEL, Judge
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