August 24, 2007
GERALD H. PITTMAN, JR., PLAINTIFF-APPELLANT,
NORTHGATE TENANTS CORP. AND WENTWORTH PROPERTIES, INC., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, L-1130-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 1, 2007
Before Judges Kestin and Graves.
Plaintiff, Gerald H. Pittman, Jr., appeals from orders entered on May 17 and June 23, 2006. The earlier order granted the summary judgment motion of defendants, Northgate Tenants Corporation (Northgate) and Wentworth Properties, Inc. (Wentworth), and dismissed the complaint. The later order denied plaintiff's motion for reconsideration. In both instances, Judge Innes stated his reasons for decision in oral opinions, respectively on May 15 and June 23, 2006.
The single-count complaint, filed on April 30, 2003, alleges causes of action for personal injury arising from defendants' negligence. The basis for the grant of summary judgment was that plaintiff was a special employee of defendants and was thus barred from pursuing an ordinary tort claim by the terms of N.J.S.A. 34:15-8, a provision of the Workers' Compensation Act. See Kelly v. Geriatric and Medical Services, Inc., 287 N.J. Super. 567 (App. Div.), aff'd o.b., 147 N.J. 42 (1996) ; Antheunisse v. Tiffany & Co., 229 N.J. Super. 399 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989); see also Volb v. G.E. Capital Corp., 139 N.J. 110 (1995).
Plaintiff was directly employed by Worthmore Construction & Maintenance Corp. (Worthmore) as a maintenance supervisor. Worthmore had contracted with Northgate, the owner of a condominium apartment complex known as The Orchard, to provide maintenance services for the building and grounds. In another professional services contract, Northgate had engaged Wentworth to provide day-to-day management services at the complex. Plaintiff was injured on April 1, 2002, during the course of his employment, when he stepped onto a brick step and stumbled and fell because of a loose brick.
Judge Innes, in his May 15 disposition, analyzed the facts and the relationships between the parties in the light of each of the five factors elucidated in Kelly, supra, 287 N.J. Super. at 571-72, and determined in an exhaustive and particularized analysis that at least four of the five Kelly tests had been met. With respect to the remaining test, "(4) the special employer pays the employee's wages," id. at 572, Judge Innes stated "none of the parties has provided the Court with any facts . . . concerning payment of wages to the plaintiff." He concluded in that regard, citing Kelly, id. at 577: "Even assuming that Worthmore paid Pitman's wages, that would not be dispositive of the question since the payment of the wages by the general employer is not necessary for a determination that a special employment relationship exists." In denying the motion to reconsider, Judge Innes determined that plaintiff had made no adequate showing that reconsideration was appropriate or indicated.
Plaintiff, on appeal, challenges Judge Innes's determinations in respect of each of the five Kelly factors and argues, as well, that genuine issues of material fact exist precluding summary judgment, and that, for policy reasons, these putative special employers "should have no immunity from tort liability."
In reviewing summary judgment orders on appeal, we apply the same standards that govern the trial courts. See Prudential Property & Casualty Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). The movant must show an entitlement to judgment as a matter of law and the absence of any genuine issue of material fact. See ibid. In determining whether those standards have been satisfied, the factual background of the matter is "viewed in the light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). On appeal, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
We have analyzed the record, in the light of the written and oral arguments advanced by the parties and prevailing legal standards, and are in substantial agreement with the reasons for decision articulated by Judge Innes. We reject plaintiff's argument that all five parts of the Kelly test must be met in order for a special employment relationship to be found. See Walrond v. County of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006).
The argument based on policy considerations is of insufficient merit to warrant at-length discussion in a written opinion, R. 2:11-3(e)(1)(E), given the relationships among the contracting parties in the tripartite relationship of Worthmore, Wentworth, and Northgate. It would elevate form over substance to hold, as plaintiff contends, that Northgate could not validly claim the immunity conferred by the statute because it was a not-for-profit community association uncovered by workers' compensation insurance. Northgate discharged its duty in this regard through contract.
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