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Murin v. Frapaul Construction Co.

Decided: May 3, 1990.

EUGENE ALAN MURIN, PLAINTIFF-RESPONDENT,
v.
FRAPAUL CONSTRUCTION CO., DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Monmouth County.

Deighan, R. S. Cohen and Brochin. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

[240 NJSuper Page 603] At issue here is the right of a "borrowed" or "lent" employee to recover for personal injuries against the "borrowing" or special employer. Plaintiff Eugene Alan Murin was injured when he fell to the ground from the top of a cement mixer truck. The fall occurred when another worker, employed by defendant Frapaul Construction Co., turned on the water to a hose which plaintiff was holding and, due to excessive pressure, a surge of water caused plaintiff to lose his balance and fall from the top of the truck. Plaintiff, who was employed by

Consolidated Steel and Aluminum Fence (Consolidated or general employer), brought an action for damages against defendant, employer of the worker who had turned on the hose.

The jury returned a verdict finding defendant 90% negligent and determined plaintiff's damages to be $70,000. Judge Gehricke entered an order for judgment of $63,000 plus prejudgment interest from November 25, 1984 to October 15, 1987 of $21,945 for a total of $84,945 plus taxed costs of $125.

The following facts were developed at trial. On May 25, 1984, plaintiff was injured when the force of water through a hose he was holding caused him to lose his balance and fall from the top of a cement mixer truck. Plaintiff was working on a job which defendant had contracted with the New Jersey Highway Authority to replace the center median on the Driscoll Bridge over the Raritan River on the Garden State Parkway in Perth Amboy. Defendant rented a Dial-a-Mix concrete mixer truck from Consolidated and plaintiff was assigned as the driver and operator of that truck. Plaintiff had worked for Consolidated for 18 years, with this type of truck. In May 1984, he worked a regular shift on that site for nine days with defendant's employees.

Plaintiff's normal routine was to report in the morning to Consolidated to sign in and pick up the truck. Consolidated then told him to report to the job. Plaintiff drove the empty cement truck from Consolidated. When he arrived at the job site, defendant's foreman determined the time plaintiff was to begin and end his work. Plaintiff loaded the truck under the bridge, and drove to the top of the bridge where he began mixing a special grout.

During the nine-day period, plaintiff worked exclusively on this project. On the day he was injured, Consolidated had another concrete mixer truck and driver at the site, but for the previous nine days, only plaintiff worked at the site. Plaintiff was never directed by defendant's employees as to how to mix

materials in the truck, nor how to do any specific job. However, defendant's employees did help plaintiff load the truck.

Plaintiff kept a record of the hours that he worked on the job and completed a time sheet which he gave to his boss at Consolidated. He never gave a time sheet to defendant. During the entire period that he worked on defendant's job, he was paid by Consolidated. An invoice,*fn1 which was marked as an exhibit, indicated that defendant paid a fee to Consolidated which included the rental of the concrete mixer truck, as well as the driver. The grout, stone and water which was mixed in the truck was provided by defendant. It was necessary to load the concrete mixer from the top of the truck. This required plaintiff to stand on the top of the truck.

For the nine days prior to the day of the accident, an older man had turned on the water to load the truck. On the day of the accident, a younger man, who apparently had not been given instructions, turned on the hose. Plaintiff gave no instructions to the younger man concerning the manner in which to turn on the water.

Plaintiff did not know the name of the younger man, but assumed that he was one of defendant's employees. William Densel, defendant's project manager and general superintendent, testified that at the time of the accident, one of defendant's employees, Jack Fernandes, was working with plaintiff.

On this appeal defendant raises the following issues: The trial judge erred in failing (1) to grant defendant's motion for involuntary dismissal for lack of jurisdiction because plaintiff was a "special employee" of defendant and precluded from maintaining a negligence action against defendant; (2) to grant an involuntary dismissal at the close of plaintiff's case, because plaintiff did not establish that the person who turned on the hose was defendant's employee acting within the scope of employment for defendant, and (3) to charge the jury to disregard plaintiff's summation comment that defense counsel had the right to have plaintiff examined by a doctor of defense counsel's choice. Also, for the first time on appeal, defendant alleges that the judge erred in terminating defense counsel's summation after 20 minutes.

I

Defendant asserts that the trial judge erred in denying its motion for an involuntary dismissal prior to trial because plaintiff was a "special employee" of defendant and therefore precluded from maintaining a common law negligence action against defendant. Plaintiff responds that none of the criteria of "special employee" was established and thus the trial judge correctly denied defendant's motion.

To assess the relationships among a general employer, a special or borrowing employer and the lent-employee, it is necessary to consider the particular transaction involved, i.e., whether the employee is seeking worker's compensation from either one or both joint employers, whether the employee is seeking damages by way of common law negligence against one or the other of the employers and whether a third person seeks to hold both or either employers responsible for negligence of the lent employee. For instance, if the employee is seeking worker's compensation, it may be found that the employee has two or more employers. See Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 455, 568 A.2d 123

(App.Div.1989); Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-430, 228 A.2d 711 (App.Div.1967); Anderson v. Well-Built Homes of Central Jersey, Inc., 69 N.J. Super. 246, 249, 174 A.2d 216 (App.Div.1961); Cser v. Silverman, 50 N.J. Super. 125, 126, 141 A.2d 61 (App.Div.1958); Scott v. Public Services Interstate Transp. Co., 6 N.J. Super. 226, 228-229, 70 A.2d 882 (App.Div.1950). However, if a lent-employee is entitled to compensation benefits from both employers, he ...


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