Kawaguchi v. Gainer9/16/2005
377 (2004). Third, whether a transfer of employment occurs largely depends on whether the alleged borrowing employer has the right to control the allegedly borrowed employee. Haight, 215 Ill. App. 3d at 365.
Beyond these basic propositions, the law in this area is somewhat confused. See, e.g., B. Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113, 121 (1921) ("The law that defines or seeks to define the distinction between general and [borrowing] employers is beset with distinctions so delicate that chaos is the consequence. No lawyer can say with assurance in any given situation when one employment ends and the other begins"); J. Hynes, Chaos and the Law of Borrowed Servant: An Argument for Consistency, 14 J.L. & Com. 1 (1994) (stating that "no improvement has been made [in this area of law] since [Justice Cardozo's] time"). For example, some cases have said that there can be no borrowed-employment situation absent a contract, express or implied, between the alleged borrowing employer and the allegedly borrowed employee. See, e.g., A.J. Johnson Paving Co. v. Industrial Comm'n, 82 Ill. 2d 341, 350 (1980); O'Loughlin v. Servicemaster Co. Ltd. Partnership, 216 Ill. App. 3d 27, 35-36 (1991). In other words, these cases require the employee's consent to the arrangement. However, other cases do not. See, e.g., Willfong v. Dean Evans Co., 287 Ill. App. 3d 1099, 1101-03 (1997); Casey v. E.J. Cattani & Son Gravel, 133 Ill. App. 3d 18, 21-23 (1985).
This confusion has permeated the parties' briefs. For example, the Authority says there must be a contract. But the Authority fails entirely to argue that a contract did or did not exist. Moreover, the Authority does not argue that, if a contract did not exist, there was not a borrowed-employment situation. If, as the Authority says, a contract is required, then its failure to pursue this line of argument is puzzling. Meanwhile, like the Authority, plaintiff says there must be a contract. Specifically, plaintiff states, "whether [a borrowed-employment situation exists] depends on whether the borrowing employer has the right to direct and control the employee with respect to the work performed and whether an employment contract, express or implied, existed between the employee and the borrowing employer." (Emphasis added.) Yet, like the Authority, plaintiff does not argue that such a contract--either express or implied--existed here. Rather, plaintiff focuses on the contract between the alleged borrowing employer and the alleged general employer, that is, the State Police. In other words, plaintiff sets out a test and then makes no attempt to meet it.
We believe that both plaintiff and the Authority have set out the wrong test. That is, where, as here, a case involves a third party's claim against an alleged borrowing employer based on an act of the allegedly borrowed employee, rather than a claim by the employee himself or herself, we do not believe that a court must find a contract between the alleged borrowing employer and the allegedly borrowed employee before it can find that a borrowed employment situation existed. Stated differently, we do not believe that, in the context of third-party claims, the determination of whether a borrowed-employment situation existed turns on whether the employee consented to the arrangement. We find support for this conclusion along two avenues.
First, when it comes to determining who is a borrowed employee, cases have recognized the distinction between a third-party claim on the one hand and a claim by the worker himself on the other. For example, in O'Loughlin, the court noted that, in the latter case, the employee's "understandings, rights, liabilities" are of critical importance. O'Lo
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