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Civil Litigation Click here for the full text of this decision The OSHA standard relates to the operational safety of a dual crane lift on the job site, not the right of control necessary to establish the borrowed servant defense. FACTS:Irwin Steel Erectors, a subcontractor hired to build the frame of an arena on the Texas AandM campus, hired a crane and crane operator from Anthony Equipment to perform a “tandem lift” of a steel truss. Irwin’s owner, James Irwin, told Anthony’s employee, Ed Cotton, where to set up the crane, and using hand signals, directed Cotton on when to lift, slow down or stop. At the 80-foot mark, Cotton intentionally released his end of the truss, which fell to ground, causing property damage to the arena and Irwin’s crane. Irwin sued Anthony for negligence, breach of contract, breach of the implied warranty to perform in a good and workmanlike manner, and a knowing violation of the Deceptive Trade Practices Act (DTPA). Irwin sought damages for lost profits, costs of repairs and attorneys’ fees. The jury returned a verdict for Irwin on the negligence, warranty and DTPA claims, but the trial court granted Anthony’s motion for j.n.o.v. on the warranty claim and the cost of repairs issue, but denied it on the negligence claim and lost profits issue. The trial court entered judgment for Irwin for $351,461, including $250,000 in lost profits. The parties cross-appeal. HOLDING:Affirmed. The court rejects Anthony’s argument that Irwin could not prevail on the negligence issue because Anthony conclusively proved that Cotton was Irwin’s borrowed servant. Irwin was not in control of Cotton under the Occupational and Health and Safety Act regulations because those regulations relate only to the safety of a dual crane lift on the job site, not the right of control necessary to establish the borrowed servant defense, the court finds. The written agreement for the crane rental included a provision for assigning right of control, the court notes, but there was also evidence that the crane rental transaction was based on an oral work order that did not include any assignment of control. Because of this evidence, Anthony did not conclusively prove its borrowed servant defense by express agreement, the court rules. Anthony also argues that to prove the borrowed servant defense by relying on Restatement (Second) on Agency sec. 227(b), which provides that, in the absence of contrary evidence, there is an inference that the actor (Cotton) remains in his general employment (Irvin) so long as he is performing the business entrusted to him by the general employer. Subsection (c) also says that a continuation of general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist. Anthony says that Cotton was under James Irvin’s control, but the court finds some evidence that James Irvin’s direction of Cotton was for the sake of safety and cooperation. James Irvin did not have the right to control how Cotton performed his job, the court rules. Irwin presented evidence that the incident played a role in Irwin losing its bid for the United Spirit Arena, a million-dollar project. Irwin’s also presented evidence that it was operating on a 42.79 percent profit margin, which means the jury could have awarded Irwin as much as $434,700. Consequently, the jury’s award of $250,000 in lost profits was supported by some evidence, the court rules. The court rejects all three of Irwin’s issues on cross-appeal. The j.n.o.v. on an award for the cost of repairs was proper. Irvin testified as an expert about the loss, but there was no evidence that he had specialized knowledge on costs of repairs issues. As a lay witness, there was no evidence that he had personal knowledge of the cost, either; he relied on other people’s estimates. Irwin is not entitled to attorneys’ fees, the court finds, and the implied warranty to perform in a good and workmanlike did not apply in these circumstances. OPINION:Rosenberg, J., Wright, Farris (sitting by assignment) and Rosenberg (sitting by assignment), JJ.

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