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Wunschel v. City of Jersey City

Decided: July 3, 1984.

EILEEN WUNSCHEL, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CHRISTIAN WUNSCHEL, DECEASED, AND RAE ANN WUNSCHEL, AN INFANT BY HER GUARDIAN AD LITEM, EILEEN WUNSCHEL, PLAINTIFFS-APPELLANTS,
v.
CITY OF JERSEY CITY, A BODY CORPORATE AND POLITIC, A.A.A. UNIFORMS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND ARNOLD SACHS, DEFENDANTS-RESPONDENTS. CITY OF JERSEY CITY, A BODY CORPORATE AND POLITIC, PLAINTIFF-RESPONDENT, V. APPALACHIAN INSURANCE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, AND ARNOLD SACHS, DEFENDANTS-RESPONDENTS. EILEEN WUNSCHEL, PETITIONER-APPELLANT, V. CITY OF JERSEY CITY, RESPONDENT-RESPONDENT. EILEEN WUNSCHEL, PETITIONER-RESPONDENT, V. A.A.A. UNIFORMS, RESPONDENT-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

This case concerns the relationship between Compensation Court and Superior Court. It arises due to the courts' conflicting decisions on the same issue of a worker's employment status at the time of his death. Even though the proofs differed in the two courts, we hold that their procedures should be molded to avoid such an inconsistency. We reverse the judgments below.

The case arises from the tragic death of a Jersey City police officer. The central issue is whether the fatal shooting arose in the course of his employment by Jersey City. His widow, plaintiff Eileen Wunschel, filed claims in the Division of Workers' Compensation and also instituted a wrongful death suit in the Superior Court. For ease of reference, we refer to only these two cases, although in the Superior Court an insurance coverage case was consolidated with the wrongful death claims. The proofs varied slightly but the following facts appear common to both cases.

Christian Wunschel was a member of the Jersey City Police Department, assigned to the Bureau of Housing Security. Wunschel and defendant Arnold Sachs were a plainclothes team and normally worked the 6:00 p.m. to 2:00 a.m. shift. They worked that shift the day prior to the accident, and were scheduled to work the same shift the following day, June 27, 1975. Due to shift changes, their tour of duty was re-scheduled for 12:00 p.m. to 8:00 p.m. Sachs had been contacted earlier in the day and started work at noon with Sergeant Charles Gallagher, who filled in for Wunschel. Wunschel's supervisor was originally unable to contact him to advise him of the change, but eventually reached him in the early afternoon.

Sachs and Gallagher then met Wunschel at headquarters about 1:00 p.m. Gallagher told Wunschel that he was going off duty at 4:00 p.m., and that Wunschel would have to be prepared for work after that. Wunschel agreed that he would be able to go on duty when needed and told them that he could be picked

up at A.A.A. Uniforms. This shop, located on Sip Avenue in Jersey City, a few minutes from the station house, specialized in selling service uniforms, weapons, and related items to public safety officers. There was evidence that Wunschel was employed there as a salesperson in his off-duty hours, and that Sachs had picked him up there before.

Sachs was delayed after 4:00 p.m. at headquarters in writing up his tour of duty with Gallagher. He left the station house about 5:00 p.m. to pick up Wunschel at A.A.A. to continue working. Here the versions differ in detail but not in their general outline.

When Sachs went into A.A.A., Wunschel was behind a sales counter. A police officer from Garfield, Michael Dudziak, was in front of the counter. Sachs told Wunschel that he was ready to go, and Wunschel told him to wait a minute. In the Law Division, Sachs testified that he told Wunschel, "he's got to get his a -- out of there because we are on the clock." But Sachs did stop to have a cup of coffee and to look at pearl pistol grips that were for sale in the store. Wunschel was still behind the counter. In the course of removing his gun from its holster to try out the pearl grips, Sachs discharged his revolver, striking Wunschel in the throat. Wunschel died of the wound.

Wunschel was survived by a wife and child. In July 1975, Eileen Wunschel filed claim petitions in compensation for survivor's benefits against both A.A.A. and Jersey City, under N.J.S.A. 34:15-7. In January 1977, she filed a wrongful death action against Sachs, Jersey City, and A.A.A., alleging Sachs' negligence in causing the revolver to discharge, the city's negligence in hiring and training Sachs, and A.A.A.'s negligence in permitting weapons to be carelessly handled and displayed on its premises. Thereafter, Jersey City filed a declaratory judgment action against its insurer, Appalachian Insurance Company. Appalachian had declined liability coverage for the incident.

In January 1978, Sachs pleaded guilty to involuntary manslaughter. In 1980, after a hearing, the Compensation Court concluded that the accident occurred in the course of Wunschel's employment with A.A.A., inasmuch as he was behind the counter and showing A.A.A. merchandise to a prospective purchaser just prior to the incident. The court awarded survivors' benefits to his dependents. Because Wunschel was an "off-book" cash employee of A.A.A., his wages were reconstructed at $3.20 per hour, entitling his widow and daughter to lesser benefits than they would have received from Wunschel's $15,600-a-year police employment.

Plaintiff also pursued her wrongful death claims in the Superior Court. That court dismissed the suit against Jersey City because the claimant had failed to file a claim against the public entity within 90 days as required under the New Jersey Tort Claims Act, N.J.S.A. 59:8-8. It also dismissed the claim against A.A.A., reasoning that the Compensation Court's finding that A.A.A. employed Wunschel shielded it from tort liability, pursuant to N.J.S.A. 34:15-8. However, the court denied Wunschel's motion to strike Sachs' fellow-servant defense. It found that because no one had represented Sachs' interests in Compensation Court, Sachs should not be bound by its judgment. The court went on to try the wrongful death claim against Sachs, limiting trial to whether the incident arose out of Wunschel's employment with Jersey City or with A.A.A.

After hearing the proofs, the court ruled that Wunschel's employment status presented no issue of fact for the jury. It ruled that the accident arose in the course of Wunschel's employment as a Jersey City police officer, and under the co-employee doctrine dismissed Eileen Wunschel's claim against Sachs. In its view of the evidence, Wunschel was paid for working from 4:00 p.m. to 12:00 a.m. on the date in question and was therefore on duty. His representative could not then sue a fellow officer for negligence.

Thus each court reached the opposite result on the central factual issue. Both judgments were appealed to the Appellate Division.*fn1 The Appellate Division ordered the appeals consolidated. In an unreported opinion, the Appellate Division held that since the proofs were different before each tribunal, the inconsistent results based on separate and distinct records could be sustained. We granted certification to review that judgment. 94 N.J. 602 (1983).

I.

We agree that collateral estoppel should not be invoked against Sachs. Central to the application of the doctrine is that the party against whom the doctrine is to be invoked must have been party to or privy to the prior proceedings. City of Hackensack v. Winner, 162 N.J. Super. 1, 27 (App.Div.1978), modified on other grounds, 82 N.J. 1 (1980). The Appellate Division correctly held that "Sachs' interests were not represented at the compensation hearing, and he was not in privity with any party." He testified as a witness produced by Wunschel, and not as a party; A.A.A. did not represent the interests of Sachs; and we were advised that the interests of his represented employer, Jersey City, were diametrically opposed to his, since it was self-insured for workers' compensation but insured for liability in tort.

However, we disagree that the Superior Court was free to resolve the difficult factual issue of co-employment without submitting the case to the jury. There is no need to consider whether the trial court had the feel for the case or a better

grasp of credibility or demeanor. The test is exacting and was not met here. The judicial function on a motion for judgment at the close of all the evidence under Rule 4:40-1, like that for an involuntary dismissal under Rule 4:37-2(b), "is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). "[It] must accept as true all the evidence which supports the view of the party against whom the motion is made, and should give [that party] the benefit of all legitimate inferences which may be drawn in [its] favor." Klockner v. Green, 54 N.J. 230, 235 (1969).

The question of co-employment is troubling and on these proofs is one on which "reasonable minds could differ." Dolson, supra, 55 N.J. at 5. N.J.S.A. 34:15-8 provides, in pertinent part:

If an injury or death is compensable under [workers' compensation], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

The purpose of this section is to make workers' compensation the injured worker's exclusive remedy with respect to both the employer and the co-employee, except where there is some intentional wrong. Further, the ...


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