On appeal from Superior Court of New Jersey, Law Division, Morris County.
Petrella and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Plaintiff Susan Antheunisse appeals from a judgment dismissing her complaint for personal injuries allegedly sustained while working for defendant Tiffany & Company, Inc. The trial judge granted defendant's motion for summary judgment, concluding that defendant was a special employer and that the claim was governed by the Workers' Compensation Act. On appeal plaintiff contends that the motion for summary judgment was improperly granted. We agree with the trial judge's determination and affirm.
The record establishes that the Pat Shea Personnel Agency orally contracted to provide defendant with temporary help during the holiday season. Defendant's personnel department screened all the applicants sent by Pat Shea before selecting and assigning them to its various departments. Once the applicants were hired, Pat Shea's role was restricted to processing their paychecks. Defendant, however, retained the power to supervise, discharge or recall a temporary employee until the end of the employment period. When the holiday season ended, the temporary employees would return to the agency for new assignments.
Plaintiff was hired by defendant on October 29, 1984, to work in its packing department until December 21, 1984. On November 28, 1984, while at work, plaintiff sustained serious injuries to her knee. She claims that a foreign object on defendant's floor caused her to slip and fall. Plaintiff subsequently filed a claim against Pat Shea for workers' compensation benefits and a separate tort claim against defendant for personal injury.
We first observe that summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2.
The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one. [ Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 74 (1954)].
The trial court must not decide issues of fact but merely decide whether there are any such issues. Id. at 73. On appeal, we apply the same standard as the trial court in determining whether the grant or denial was correct.
Our jurisdiction allows an employee, for the purpose of workers' compensation to have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from maintaining a tort action against the other for the same injury. Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-430 (App.Div.1967). "Whether the common law action is precluded is thus dependent upon a determination that the borrower of an employee is, in fact, a special employer." Id. at 430. Professor Larson, in his treatise on Workmen's Compensation formulates a three-pronged test in order to establish employment within the terms of the act regarding "Lent Employees and Dual Employment":
When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if
(a) the employee has made a contract of hire, express or implied, with ...