On appeal from the Superior Court, Law Division, Burlington County.
Lora, Antell and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
[173 NJSuper Page 494] Plaintiff Henry Kalnas appeals from the involuntary dismissal of his third-party negligence action against defendant Layne of New York Company, Inc. (Layne) on Layne's motion made at the conclusion of plaintiff's case. The basis of the trial court's action was its conclusion that Layne was immune from a third-party action under the Workers' Compensation Act, N.J.S.A. 34:15-8. We affirm the dismissal, not for the reason relied on
by the trial judge but because we are persuaded that plaintiff failed to prove a prima facie case of liability against Layne.
We are, of course, obliged to view the facts adduced on plaintiff's case most favorably to him and to give him the benefit of all favorable inferences supported thereby. R. 4:37-2(b); Dolson v. Anastasia , 55 N.J. 2, 5-6 (1969). So viewed, the proofs showed that plaintiff was a laborer employed by a construction firm, Emcee Construction Company, Inc. (Emcee), which was interested in bidding on a water treatment plant project of the City of Bordentown (city). Apparently the city's plan was to take bids for three separate contracts for the total job, one for structural and mechanical work, one for plumbing, heating, ventilation and air conditioning, and one for electrical work. The last two of these contracts were entered into by the city with bidders not here involved. As to the first of these contracts, Emcee entered into a joint venture with defendant Layne for the purpose of submitting a bid, their agreement being that Emcee would do the structural work and Layne the mechanical work. Their bid was accepted and they entered into a written joint venture agreement essentially providing which contract item would be done by which company and allocating to each a share of the total contract price based on the actual work to be undertaken by each. The agreement further required each joint venturer to be "responsible for all of the general conditions as they appear to apply to each partner." There is nothing in the record to suggest that the joint venturers would combine their payrolls or would in any other way supervise, control or bear financial responsibility for the employees of the other.
Emcee, of all the contractors, was apparently first on the job, Layne's work at the site not having commenced until some eight months after Emcee's. Emcee's work apparently included site clearance, and early in the project, when it alone was on the site, it became necessary to remove a very large tree therefrom. A crew of Emcee's, including plaintiff, began to perform this task during the course of which plaintiff was seriously injured. It
appears that the factors contributing to the accident were improper safety equipment issued to plaintiff by his foreman, inadequate instruction as to the technique of performing the work, and plaintiff's inexperience in tree removal.
Plaintiff sought and received workers' compensation benefits from his employer, Emcee, and brought this third-party action against Layne who, in turn, impleaded Emcee, claiming a right to indemnification from it. Plaintiff's primary theory of Layne's liability, particularly as it became focused during the trial, was that Layne had an independent obligation to him to assure him a safe place to work and to ensure compliance by all personnel on the site with the relevant provisions of the Construction Safety Code, N.J.A.C. 12:180-1.1 et seq.
The trial judge on the motion for involuntary dismissal did not deal directly with the question of Layne's breach of duty in respect of plaintiff because he concluded that the fact of the joint venture relationship between Layne and plaintiff's employer, Emcee, cloaked Layne with the same mantle of immunity under the Workers' Compensation Act as Emcee itself was entitled to. This conclusion was based on his perception that the essential attributes of a joint venture are the same as those of a partnership. He noted that an employee of a partnership is barred by the exclusivity of the workers' compensation remedy from bringing a third-party action against either the partnership or any of its partners individually. See, e.g., Mazzuchelli v. Silberberg , 29 N.J. 15, 21-24 (1959); Seltzer v. Isaacson , 147 N.J. Super. 308 (App.Div.1977). He therefore reasoned that because of the partnership nature of the joint venture, an employee of one of the joint venturers is also barred by the exclusivity of the workers' compensation remedy from bringing a third-party action against all joint venturers whether or not his direct employer.
There is apparently no authority in this State addressing the issue of the availability of a third-party action against a
joint venturer and we have substantial doubt that the partnership analogy is dispositive. In the typical partnership situation the partnership is, indeed, both formalistically and functionally, the employer. See, e.g., N.J.S.A. 34:15-36, expressly recognizing that "employer" within the intendment of the Workers' Compensation Act may include a natural person, a partnership or a corporation. But these are all entities subsumed by the basic concept of the employer as the master and, as that section of the act further provides, "'employer' is . . . synonymous with master." In our view, therefore, whenever there is a dispute as to whether there is in fact an employment relationship encompassed by the act, and particularly where the circumstances of the relationship depart from traditional modes, the resolution of the question requires a factual analysis of all of the indicia of the relationship in order to determine if it is truly that of master-servant. And in order to constitute such a relationship, it must be characterized by such elements as the employer's supervisory power, his right to control the activities of the employee, his right ...