This case comes before the court on a motion for summary judgment by defendants, Frank Caloiero and Carmella Caloiero. There is no dispute as to the facts which are, essentially, that on December 15, 1984, 13-year-old John Thompson was injured while operating a power-driven dough machine. He was an employee of defendant, Family Godfather, Inc., and was permitted to use the machine. Defendants, Frank Caloiero and Carmella Caloiero, are sole shareholders and officers of defendant corporation and were co-employees with John Thompson at the time the accident occurred. It was at the direction of Frank and Carmella Caloiero that John Thompson operated the dough machine.
The action was filed pursuant to an election of remedies provided to minors by N.J.S.A. 34:15-1 for injuries arising out of and in the course of employment based on a common law theory alleging the negligence of an employer. The action by plaintiff, Charlyn Thompson, individually and as guardian ad litem for her minor son, John Thompson, was based on N.J.S.A. 34:2-21.17 which prohibits minors under 16 years of age from being employed, permitted or suffered to work in, about or in
connection with power-driven machinery. A violation of N.J.S.A. 34:2-21.17 in itself constitutes negligence and results in liability if the violation is the proximate cause of injuries. Gabin v. Skyline Cabana Club, 54 N.J. 550, 554 (1969). Gabin held that the broadest possible reading should be given to the statute to the end that the victims of violations of the child labor laws not have their rights limited. Ibid.
The issue to be decided is whether a minor who elects to sue on a common law theory based on the election of remedies under the Workers' Compensation Act (N.J.S.A. 34:15-10) for an injury arising out of and in the course of his employment may maintain a cause of action against a co-employee outside the restrictive scope of N.J.S.A. 34:15-8.
N.J.S.A. 34:15-1 provides that the exclusive remedy an employee has against his employer is in the Workers' Compensation Act. The act also grants immunity to an employee from being sued by a co-employee. N.J.S.A. 34:15-8 states in part:
If an injury or death is compensable under this article, 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.
However, in response to a growing concern for the protection of minors' legal rights, the Legislature enacted N.J.S.A. 34:15-10 which reads in part:
Nothing in this chapter contained shall deprive an infant under the age of 18 years of the right or rights now existing to recover damages in a common law or other appropriate action or proceeding for injuries received by reason of the negligence of his or her master.
This section specifically allows a minor who is injured in conjunction with his employment to elect a remedy under the act, the common law or any other appropriate action or proceeding. In the case sub judice, plaintiff elected to pursue her remedy under the common law.
Defendants claim that the option given to minors to elect a remedy does not remove the immunity given to a co-employee and that even if the minor pursued a different remedy than proceeding ...