Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.
[237 NJSuper Page 453] This is a workers' compensation case. Petitioner Donald Domanoski, a police officer employed by respondent Borough of Fanwood, sustained an injury while arresting a shoplifter in a supermarket owned and operated by respondent Great Atlantic
& Pacific Tea Company (A & P). Petitioner was, at the time of the arrest, off duty and working as a security guard for A & P at an hourly rate paid by A & P pursuant to an arrangement between the Fanwood Police Department and local enterprises by which uniformed and armed off-duty officers were permitted to perform security functions for private business. Following a bifurcated trial on liability, the judge of compensation found as a matter of fact that at the time of his injury, petitioner was in the joint employ of both respondents but that Fanwood was equitably entitled to indemnification from A & P for its share of the compensation burden. On leave granted, A & P asserts that it was not petitioner's employer for compensation purposes and that even if it was a joint employer, it owed the municipality no obligation of indemnification. Fanwood does not challenge the finding that it was a joint employer, asserting the correctness of the indemnification order. We affirm the judge's joint-employment conclusion but disagree that Fanwood is entitled to indemnification.
There is no substantial dispute of fact. As made clear by the testimony of Fanwood's Chief of Police, the department, as a matter of policy and by way of a formal program, cooperates with local businesses in making off-duty officers available to them at their expense for the performance of guard and security duties. The Police Chief first reviews each request for the services of an off-duty officer in order to determine the acceptability of the offered hourly wage,*fn1 the nature of the services to be performed, and the appropriateness of their performance by an off-duty officer. Approved requests are then posted at headquarters, and officers who desire the employment sign up for it. The police captain then makes the specific assignments on a rotational seniority basis.
Petitioner had signed up for the A & P job, which required a fully uniformed and armed officer on the premises between 4 p.m. and midnight daily, and he had worked there at least several times a week for about a year-and-a-half before the accident. His specific duties were assigned upon his arrival, generally including the checking of the loading area and escorting cashiers to the store's vault. He was generally, however, hired to provide a deterrent police presence and, as he described it, "I felt I was there as a police officer to enforce any laws that I might see violated." According to the Chief of Police, an officer performing such a private special assignment was nonetheless an off-duty officer and as such was required to respond to a crime taking place in his presence and to arrest the suspect. Thus,
if he sees what he perceives to be a crime taking place, it is within his authorization and duty to attempt to stop that crime and to arrest the individual; is that correct?
A. That's his sworn duty, yes.
Q. And if Officer Domanoski were in the process of arresting an individual, patting a man down, placing a handcuffed or person's hands on his hips, that would be within his police duty, would it not?
Q. And would it also be correct that the instructions on how to arrest, how to pat down, how to bring somebody into the police station, are all those directions derived directly from the Borough of Fanwood and from the police academy?
On December 18, 1985, as petitioner was providing what he described as internal security in the store, he saw a patron take a package of meat out of a display case and hide it on his person. He apprehended the thief, and in the course of patting him down, he wrenched his back, ultimately requiring surgery for a herniated disc. He ...