On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1870-02.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Lefelt and Hoens.
The Chief of the South Brunswick Police Department (Department) assigned Officer Steven Walrond to serve one week as a "duty officer" at the Somerset County Police Academy. While serving at the Academy in this function, a lightning bolt struck Walrond causing severe personal injuries. Walrond was awarded workers' compensation benefits by the Department, but he also brought a civil action against, among others, the Academy and several members of its staff. Walrond alleged in the civil action that defendants were negligent for conducting an outdoor physical training session under dangerous weather conditions. The Academy moved for summary judgment. A motion judge found that Walrond was a "special employee" of the Academy and dismissed Walrond's civil suit on the ground that the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, constituted Walrond's sole remedy. Walrond appealed,*fn1 and we now reverse.*fn2
The facts are straightforward and largely uncontested. The Academy holds its recruit training program on the campus of Raritan Valley Community College in North Branch. Campus classrooms along with the gymnasium, pool, and outdoor track are used during the training program. The Academy commonly invites officers from local municipalities to serve as "recruit duty officers" during the program. Many of these individuals had previously graduated from the Academy and have gone on to successful police officer careers. Walrond, for example, graduated from the Academy in 1996.
In June 2001, the Academy Director sent an "instructor request" letter to the Department's Chief "request[ing] the services of [Walrond] to assist in training at the [Academy]" as a "duty officer" for police recruits. The letter indicated that Walrond would be needed from August 13 through August 17, 2001, during the hours of 7:00 a.m. to 3:30 p.m. The letter requested the Chief to "check off whether or not the requests [could] be accommodated," photocopy the letter, and return it by July 13, 2001. The Chief checked "[a]pproved" and signed the letter.
Other than the letter, the record does not show that the Department and the Academy executed any formal agreement with regard to Walrond's services as a duty officer. In addition, Walrond did not enter into any written agreement with the Academy regarding his service as a duty officer. During his week at the Academy, Walrond was to be paid his regular salary by the Department. The Academy was not obligated to compensate Walrond or reimburse the Department for his services. Indeed, we were advised at oral argument that the Academy is funded by the several counties that participate in its program and that it collects tuition from the recruits.
The Academy's "Policies and Procedures Manual" provides a detailed description of the role and responsibilities of a "Recruit Duty Officer." These duties include ensuring the safety and security of vehicles and lockers used by the recruits during training; supervising the recruits while they eat lunch; monitoring recruit classes and breaks; engaging recruits "concerning their appearance, their behavior, their knowledge, etc."; reviewing recruit notebooks; looking out for unsafe conditions; and generally setting a good example for recruits to follow. If duty officers are certified in physical training, the manual further provides that they "will be dressed in the days [physical training] uniform" at the designated time.
During the first day of Walrond's assignment as "Recruit Duty Officer," he performed various tasks upon behalf of the Academy. For example, he advised the recruits that he was there for them and that if they had any questions, they should feel free to ask him. He met with two recruits who had firearm issues, telephoned some instructors to remind them of their scheduled obligations, and graded some traffic tickets that had been prepared by the recruits.
Later that day, at around 2:00 p.m., the recruit class was scheduled to participate in an outdoor physical training session. These sessions generally involve running, calisthenics, and various other exercises.
Shortly before the session began, an Academy instructor informed Walrond that he could leave if he desired. However, Walrond told the instructor that he was scheduled by his chief to remain at the Academy until later that ...