In this case the court is asked to decide whether plaintiff, Nicolena DeMarco, a baby-sitter at the residence of defendants, Stephen V Bouchard and Mary Lou Bouchard, qualifies as an employee of the defendants under the Workers' Compensation Act, N.J.S.A. 34:15-1-34:15-12 (the Act), or was a casual employee and eligible to maintain a common law action for negligence.*fn1 The defendants, the employers, are seeking a declaration that plaintiff is subject to the Act, while plaintiff argues she is not subject to the Act and is free to proceed at common law. The only case law in this jurisdiction bearing upon this issue is from the point of view of an employee seeking compensation coverage, rather than disclaiming such coverage. No facts are in dispute and the matter is ripe for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954).
For purposes of this motion the undisputed facts follow.
Plaintiff was injured at the home of defendants on January 16, 1993. She tripped and fell while walking along an uneven brick walkway leading from defendants' home to the street. She had been baby-sitting for defendants' two daughters for approximately two hours at the time the incident happened. Defendants had returned home and paid her $20 for her services. She had never previously been employed as a baby-sitter for defendants and there was no agreement for defendants to employ her in a like capacity in the future.
At the time of the accident defendants had in force a homeowner's policy with Cumberland Mutual Fire Insurance Company. It included coverage for occasional servants. Defendants submitted a workers' compensation claim seeking coverage for the accident. They argue there was an employment relationship between plaintiff and defendants at the time of the accident.
N.J.S.A. 34:15-36 defines "employer" for purposes of workers' compensation as follows:
"Employer" is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; "employee" is synonymous with servant, and includes all natural persons, . . . who perform service for an employer for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; . . .
Since the employment was not in connection with any business of defendants, plaintiff would not be considered an employee if her employment was not regular, periodic or recurring.
In Herritt v. McKenna, 77 N.J. Super. 409, 186 A.2d 694 (App.Div. 1962), both the Division of Worker's Compensation and County Court denied recovery to a petitioner in a workmen's compensation action, finding that she was a casual employee, and not entitled to compensation coverage. The petitioner was 70 years old and was injured in a fall at defendants' home. She was working as a baby-sitter for the defendants' three children at the time of the accident. She had worked for defendants on eight isolated occasions in September and October 1960 and was paid a specific hourly rate, with a minimum dollar amount for any single engagement. She was employed on specific dates but the hours varied in both the time of commencement and duration. She was paid at the end of each specific service. She considered baby-sitting her usual occupation. At the time of the accident she was ...