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Kawaguchi v. Gainer9/16/2005
rms of any written contract between the employers. Shoemaker v. Elmhurst-Chicago Stone Co., 273 Ill. App. 3d 916, 921-22 (1994). In particular, courts have looked to whether the general employer had the ability to substitute among employees loaned to the borrowing employer. Casey v. E.J. Cattani & Sons Gravel, 133 Ill. App. 3d 18, 23 (1985) (" 'a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time' "), quoting Restatement (Second) of Agency *227, Comment c (1958). When considering the above factors, we must bear in mind that, " n the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer." Restatement (Second) of Agency ยง227, Comment b (1958). Although the borrowed employment question is generally one of fact, when the unrebutted evidence is capable of only one interpretation we must make the determination as a matter of law. Chaney ex. rel. Chaney, 315 Ill. App. 3d at 827.
2. Applying the Borrowed Employee Law
Applying the above standards to this case, we find that Trooper Gainer was not a borrowed employee of the Authority. This is so for at least five reasons. First, and perhaps most fundamentally, plaintiff "acknowledges that Gainer was employed by the State Police at the time of the incident." If that is so, then Trooper Gainer could not have been a borrowed employee of the Authority. This is because, if one is a borrowed employee, then he or she becomes the employee of the borrowing employer for the performance of the work that he or she was loaned to perform. Because plaintiff concedes that Trooper Gainer was an employee of the State Police at the time of the accident, plaintiff necessarily concedes that Trooper Gainer was not a borrowed employee of the Authority. Thus, semantically at least, plaintiff's acknowledgment is determinative.
Second, casting plaintiff's acknowledgment aside, according to the terms of the contract between the Authority and the State Police, the State Police had the power to direct, control, and supervise the manner in which Trooper Gainer performed her duties. Trooper Gainer confirmed this point in an affadavit, and plaintiff has offered nothing to contradict this evidence. Indeed, plaintiff's only response to this evidence is her suggestion that, by establishing tollway regulations (like the speed limit, perhaps), the Authority could "exercise supervision and control" over the manner in which Trooper Gainer performed her duties. Simply put, that is absurd. Thus, the unrebutted evidence establishes that the State Police, not the Authority, had the power to direct and control the manner in which Trooper Gainer performed her duties. See Raintree Homes, 209 Ill. 2d at 262 (" hen supporting affidavits have not been challenged or contradicted by counteraffidavits or other appropriate means, the facts stated therein are deemed admitted").
Third, although plaintiff places considerable reliance on the money spent by the Authority in connection with the policing of the tollways, the amount of money spent by an alleged borrowing employer is not dispositive. See Casey, 133 Ill. App. 3d at 22. Moreover, while it is true that the Authority provided Trooper Gainer with equipment and paid her salary and benefits (including her worker's compensation claim), it is also true that this arrangement was statutorily mandated. See 20 ILCS 2610/20 (West 2002) (" ontracts shall provide among other matters for the compensation or reimbursement of the [State Police] by the Authority for the costs incurred b
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