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Kelly v. Geriatric and Medical Services

February 29, 1996

JOAN P. KELLY, PLAINTIFF-APPELLANT,
v.
GERIATRIC AND MEDICAL SERVICES, INC. T/A COOPER RIVER CONVALESCENT CENTER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication February 29, 1996.

Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Plaintiff, Joan P. Kelly, appeals from an order granting summary judgment to defendant, Geriatric and Medical Services, Inc., t/a Cooper River Convalescent Center (CRCC), dismissing her personal-injury negligence complaint. The Law Division Judge ruled that as a matter of law, she was a "special employee" of CRCC and, therefore, barred from bringing a tort action against her "special employer" by N.J.S.A. 34:15-8 of the Workers' Compensation Act. We affirm.

Plaintiff, a licensed practical nurse (LPN), was injured on January 16, 1991, when she slipped and fell on a wet floor while working at CRCC's health care facility. At the time, plaintiff was employed by Today's Staffing Services, Inc. (TSI), a labor services company in the business of supplying skilled nursing personnel to health care facilities on a temporary basis. Plaintiff's claim for workers' compensation benefits through the insurance carrier for TSI was paid without contribution from CRCC.

On November 12, 1992, plaintiff filed her complaint against CRCC, alleging that, on January 16, 1991, she was "employed by TSI," and "in the course of her employment with TSI as a nurse," she slipped and fell on a freshly mopped, wet floor "in the course of her . . . work at the Cooper River Convalescent Center." Plaintiff alleged that as a "business invitee" at defendant's health care facility, CRCC had a duty to provide her with a "safe place to work," which it negligently breached by exposing her to "unsafe conditions during the course of her employment." Among other defenses asserted, was that at the time of her accident, plaintiff was an "employee of this defendant" and, therefore, her sole and exclusive remedy against it was "under the New Jersey Workers' Compensation Law."

After completion of discovery, CRCC moved for summary judgment. CRCC acknowledged that plaintiff was an "employee ... of TSI," but argued that because plaintiff was an "agency nurse" obtained by defendant from "a temporary personnel agency," CRCC was her "special employer" and plaintiff was, therefore, "barred by the workers' compensation statute's surrender of other remedies provision, N.J.S.A. 34:15-8." Plaintiff responded that "at no time did she consider herself an employee of CRCC," and that at the time of her accident, she was "employed by , a nursing agency," was an "employee of only," and was "not the special or borrowed employee of ."

On September 23, 1994, the motion Judge held that plaintiff was a "special employee" of CRCC and, therefore, "the workers' compensation bar is applicable." He, therefore, entered an order granting summary judgment in favor of CRCC and dismissed plaintiff's complaint.

The facts are not in great dispute. For several years, plaintiff had been contemporaneously employed by TSI and several other temporary nurse staffing agencies, and had been temporarily assigned to work as an "agency nurse" at various health care facilities, including defendant's. Plaintiff had always worked as an agency nurse because she liked the scheduling flexibility it provided, which was not available to a "staff nurse" regularly employed on the payroll of a health care facility. It was plaintiff's "personal preference to be an agency nurse rather than a staff nurse."

Before plaintiff's fall, defendant would from time to time decide that all nurses working at its various health care facilities "should go staff," that is, "should ... become employees directly of ." Defendant had at these times "offered plaintiff a position . . . to work on staff." Plaintiff testified: "when that happened, I refused to join staff and I would go work somewhere else," and "then . . . the furor would die down and I would go back" to defendant's facility "through an agency."

The applicable, though not exclusive, legal criteria to establish a special employer-special employee relationship involves the ...


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