What Is the “Borrowed Servant” Doctrine in a Georgia Workplace Injury?
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It is the rule that a worker lent by one employer to another can become, for a particular job, the employee of the business that borrowed them. Georgia applies a three-part test: the borrowing employer “had complete control and direction of the servant for the occasion”, the lending employer “had no such control”, and the borrowing employer “had the exclusive right to discharge the servant” (as stated in Aimwell, Inc. v. McLendon Enterprises, Inc., 2012). All three must exist.
Why it matters
The doctrine decides who answers for the worker in two different settings:
| Setting | What the doctrine decides |
|---|---|
| The lent worker is injured | Whether the borrowing employer is an "employer" protected by workers' compensation's exclusive remedy (O.C.G.A. § 34-9-11) or a third party that can be sued in tort |
| The lent worker injures someone else | Which employer is vicariously liable for the worker's negligence |
Complete control, no control, and the right to discharge
- Complete control and direction for the occasion. The control must exist at the moment of the injury; Aimwell, citing Coca-Cola Co. v. Nicks (1994), notes “the element of the right to control relates specifically to the occasion when the injury occurred”.
- No control by the general employer. If the original employer still directed the work, the worker remains its servant.
- Exclusive right to discharge. The borrowing employer must be able to remove the worker from the job.
The doctrine in a hospital: Hoffman v. Wells (1990)
The Supreme Court of Georgia explained the doctrine’s logic in a wrong-site surgery case. A hospital is ordinarily liable for its salaried employees under respondeat superior, but “if a master lends his servants to another then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other”, because “both employers cannot have control over the actions of the employee at the same time”. In a footnote citing Wilson v. McCullough (1986), the Court distinguished the situation in which a worker serves two masters jointly, which requires that they “employ a servant jointly, contribute equally to his wages and to the maintenance of his equipment, have equal rights to the use of the equipment, and have equal control over him”.
Staffing agencies are handled by statute
A temp worker placed through a staffing firm is resolved without the borrowed-servant test. Section 34-9-11(c) extends tort immunity to “the businesses using the services of a temporary help contracting firm” or employee leasing company whenever workers’ compensation benefits are provided by the firm, the leasing company, or the client, and treats the firm as a statutory employer. Details are in who is liable when a staffing agency worker is injured.
The borrowed-servant test still matters for informal arrangements: one company lending its own employee to a customer, a contractor sharing crews, or an equipment owner supplying an operator with a machine.
Facts that decide the test
- Who told the worker what to do, and how, on the day of the injury.
- Whether the original employer kept any supervision on site.
- Who could send the worker home or off the job.
- Who paid the worker, supplied the equipment, and carried the workers’ compensation coverage.
Sources
- O.C.G.A. § 34-9-11 (text as published in October 2016 on a mirror site; no amendment recorded in the 2022 to 2026 legislative summaries).
- Hoffman v. Wells, 260 Ga. 588 (1990)
- Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394 (2012)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.