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Martin v. Pollard

Decided: March 28, 1994.

GARY MARTIN, PETITIONER-RESPONDENT,
v.
FREDERICK AND DIANE POLLARD, RESPONDENTS-APPELLANTS



On appeal from the Division of Workers' Compensation.

Brody, Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

Respondents Frederick and Diane Pollard appeal from a judgment entered against them in the Division of Workers' Compensation holding that petitioner, Gary Martin, was an employee of the Pollards within the meaning of N.J.S.A. 34:15-36 when Martin fell from a roof while painting a home they owned.

The Pollards reside in North Brunswick, New Jersey. Mr. Pollard is retired. His wife operates a nursery/garden business. The Pollards own two houses on Fowl Rift Road in Belvedere, New Jersey. The house where Martin's accident occurred was rented by the Pollards to Donna Bartha, apparently on a month to month basis. Martin was Bartha's live-in companion.

The other house owned by the Pollards on Fowl Rift Road is a summer cottage. It is apparently rented by the Pollards on a seasonal basis. In June 1991, Mr. Pollard engaged Martin to paint the exterior of the summer cottage. The arrangement was that Martin would keep track of his hours, and Pollard would pay him at the rate of $10.00 per hour when the job was done. Pollard provided all of the material except for the ladder. Martin testified that he was doing the job in his "spare time" after his "regular work."

Approximately a month before the accident, Pollard engaged Martin to apply a water seal product to the exterior of the house Bartha was renting in order to prevent further water damage to the cedar siding. Pollard agreed to pay Martin at the rate of $10.00 per hour. Martin was to keep track of his hours and receive payment at the end of the job. There was no schedule or timetable established for the job. However, on this occasion Pollard supplied only the water seal while Martin supplied the brushes, ladder and related materials. Martin testified that Pollard gave him no instructions concerning the work because

he [Pollard] didn't know anything about it. He just knew it needed to be done.

When asked whether Pollard had any Discussions with Martin concerning mildew on the house, Martin stated that he had pointed the problem out to Pollard, whereupon Pollard "agreed he wanted to protect his house because he plans on moving in there someday."

When Martin began this second job for Pollard he was working full time for Bartha, who had an industrial, commercial and residential cleaning service. His work applying the water seal was sporadic because of either weather conditions, or because he was working with Bartha in the cleaning business. The accident in question occurred when he apparently lost his footing applying the water seal and fell from the roof sustaining a fractured femur. By the time the accident happened, he had put in approximately 14 hours over a period of one week. Had the accident not

occurred, Martin said he would have finished the job "when Donna could give [him] time off" from the cleaning business.

According to Martin's testimony, the painting jobs were the only two jobs that Pollard had engaged him to perform for pay. Any other work performed by Martin around the house such as cutting the lawn, raking leaves, cleaning out the gutters, etc., were a part of his contribution toward his share of the living expenses. (Carrying out general ...


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