Legal Memorandum: The Borrowed Servant Doctrine

Issue: Under federal law, whether an injured worker, nominally employed by an entity other than a railroad, may also be ’employed’ by a railroad carrier at the time of the injury within the meaning of the FELA (45 U.S.C. 51).

Whether an injured worker, nominally employed by an entity other than a railroad, may also be “employed” by a railroad carrier at the time of the injury within the meaning of the FELA (45 U.S.C. § 51) is determined by reference to common law principles.  Kelley v. Southern Pac. Co., 419 U.S. 318 (1974).

There are three common law methods or theories by which an injured worker, nominally employed by another entity, may establish that he was also “employed” by a railroad carrier at the time of his injury for purposes of a FELA claim: (1) the borrowed servant doctrine; (2) the dual servant doctrine; or (3) the subservant doctrine.  Kelley, supra.

The crucial factor the plaintiff must establish under each of the three methods is that the railroad has control over or the right to control the person alleged to be its servant.  Vanskike v. ACF Indus., Inc., 665 F.2d 188 (8th Cir. 1981).

Under the third method, the subservant theory, the focus is not on whether the railroad has direct control of the plaintiff but rather on whether the railroad has significant control over a second entity, the plaintiff’s nominal employer.  Kelley, 419 U.S. at 325.

In determining whether the railroad exercised the requisite control over a second entity, a subsidiary trucking company which was, the plaintiff’s nominal employer, the following factors have been deemed especially significant: (1) whether the railroad exercised supervisory control over the trucking […]