This section contains the nature of the case and procedural background.

Clearwater Drilling Company was drilling a well and setting a water line. P had been employed by Clearwater to lay pipe for the water line. Clearwater leased a backhoe from D in order to excavate the ditch for the water line. D furnished the backhoe operator, Albert Malcom. Malcom began to dig to a depth of five feet but was informed that the Club wanted it six feet deep. Malcom warned that the soil was soft and might cave in, but was instructed to go ahead and deepen the trench anyway. Malcom suggested 'belling' the sides of the ditch. That advice was ignored. The ditch did cave in injuring Kastner. P sued D claiming that it was vicariously liable for Malcom's negligence. D moved for summary judgment on the ground that Malcom was a borrowed servant working for Clearwater at the time of the accident. The superior court granted the motion. P appealed.

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