December 11, 2007
JOSEPH SANSONE AND KATHLEEN SANSONE, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
TERRANCE L. JONES; DESHAUNN L. VENABLE; HORACIO LORENZO; COUNTY OF ESSEX; HARVEY'S BAR; CHESTER'S BAR, DEFENDANTS, AND CITY OF NEWARK, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1138-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2007
Before Judges Payne and Messano.
Plaintiffs Joseph and Kathleen Sansone appeal from the motion judge's grant of summary judgment dismissing their complaint against defendant City of Newark (Newark) as barred by the exclusivity provisions of the Workers' Compensation Act, N.J.S.A. 34:15-8 and because plaintiff failed to demonstrate that his injuries resulted from a dangerous condition on public property N.J.S.A. 59:4-2.*fn1 Newark cross-appeals from that portion of the same order that denied summary judgment on the alternative ground that the injuries suffered by plaintiff were insufficient to allow recovery under N.J.S.A. 59:9-2(d). After review of the motion record and applicable legal standards, we affirm those portions of the order under review that granted Newark summary judgment; as a result, we dismiss the cross-appeal as moot.
The litigation arose as a result of a motor vehicle accident that occurred in Newark during the early morning hours of May 10, 2002. Plaintiff, a trooper with the New Jersey State Police, was a passenger in an unmarked police vehicle that was being operated by defendant Newark Police Officer Horacio Lorenzo. At approximately 2:00 a.m., Lorenzo and plaintiff were responding to a call for backup assistance requested by Newark Police Department (NPD) units in connection with a bar fight. Plaintiff's vehicle was traveling westbound on 14th Avenue with its lights and sirens on when it was struck by a vehicle traveling northbound on the intersecting 11th Street.
The second vehicle was operated by defendant Terrance L. Jones and was owned by defendant Deshaunn L. Venable. It was alleged that Jones failed to obey a stop sign before entering the intersection; he was subsequently charged with driving while intoxicated and other motor vehicle violations. When the vehicles collided, both cars spun and slid diagonally across the intersection until plaintiff's vehicle's front passenger door impacted a telephone pole. Plaintiff sustained injuries as a result of the accident.*fn2
To this day, plaintiff has no memory of how the accident occurred; therefore, he relies upon the facts gathered during the subsequent investigation conducted by the police. This revealed that the intersection of 14th Avenue and 11th Street had been the location of another motor vehicle accident approximately two hours prior to plaintiff's accident. As part of its clean-up of the earlier accident, Newark had spread a large amount of sand throughout the intersection and this was still present at the time of plaintiff's collision. It is undisputed that no warning signs, cones, or other devices of any kind were posted to alert motorists to the presence of the sand on the road.
On the date of the accident, plaintiff was assigned to a special law enforcement task force, the Drug Interdiction and Gang Group (DIGG), a joint effort of the NPD and the State Police, which patrolled high-crime and narcotic-trafficking areas in Newark. The State Police assigned twenty-three of its employees to DIGG on a full-time basis and they worked uniformed, undercover, and investigative details alongside NPD officers. While participating in Operation DIGG, plaintiff was paid by the New Jersey State Police, and there is no evidence in the record that Newark reimbursed or provided any other remuneration to the State for plaintiff's participation.
Plaintiff was required to report to NPD headquarters and attend roll call prior to beginning work each day. A NPD lieutenant or sergeant ran the shift and devised the "game plan" for the officers, although on occasion a state police sergeant was also present as a supervisor. Although plaintiff was ultimately answerable to any State Police supervisor present, he acknowledged that he followed the orders of the NPD supervisors on a day-to-day basis.
Newark moved for summary judgment and argued three alternative grounds for relief. First, it contended that plaintiff's action was barred by the Workers' Compensation Act, specifically N.J.S.A. 34:15-8. In this regard, Newark asserted that plaintiff was a "special employee" of the City and therefore covered by the statute's prohibition of suits against one's employer. Second, Newark argued that plaintiff failed to prove a prima facie case that the intersection was a dangerous condition on public property pursuant to N.J.S.A. 59:4-2. Third, the city argued that plaintiff had not suffered injuries sufficient to meet the threshold requirements of N.J.S.A. 59:9-2(d).*fn3
We have not been supplied with a transcript from any oral argument that may have occurred or a transcript of the judge's reasons for entering the dispositional order that she did. However, as evidenced by the order of September 8, 2006, the judge found "a genuine issue of material fact [existed] as to whether sand in the street was a dangerous condition that was the proximate cause of [plaintiff's] accident." She denied the motion.
Newark moved for reconsideration arguing that the judge had failed to consider all three grounds for summary judgment raised by the City. It also argued, based upon our then-recent unreported decision in Barnabei v. City of Ocean City, No.A-2425-05 (App. Div. October 16, 2006), that the judge had erred in determining a factual dispute existed regarding a dangerous condition on its property.
In her oral opinion of October 31, 2006, the judge granted Newark's motion for reconsideration. She found that plaintiff could not demonstrate the elements of a dangerous condition pursuant to N.J.S.A. 59:4-2 as a matter of law and that plaintiff was barred from recovery under N.J.S.A. 34:15-8. However, the judge also concluded that plaintiff had demonstrated injuries sufficient to vault the threshold set forth in N.J.S.A. 59:9-2(d). On November 13, 2006, the judge entered an order granting reconsideration and summary judgment to Newark. This appeal ensued.
In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995):
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
Plaintiff argues that the motion judge erred in finding that he was a special employee of Newark at the time of the accident and thus barred from pursuing his tort claim pursuant to N.J.S.A. 34:15-8. He argues that he received workers' compensation benefits for his injuries following the accident from the State of New Jersey and that this demonstrates he was not employed by Newark. He also argues that since Newark did not compensate the State for his services in Operation DIGG, one of the primary factors that demonstrates the existence of a special employee relationship is lacking in this case.
New Jersey's workers' compensation law provides that "an employee's exclusive remedy against his employer for ordinary work injuries is a statutory remedy without regard to fault." Gore v. Hepworth, 316 N.J. Super. 234, 240 (App. Div. 1998), certif. denied, 158 N.J. 70 (1999). An injured employee may have more than one employer from which he can recover workers' compensation benefits. Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). If the employee is entitled to benefits from more than one employer, a common law action against such employers is precluded. Ibid.; Murin v. Frapaul Construction Co., 240 N.J. Super. 600, 606-07 (App. Div. 1990). This is so because an employer's responsibility to provide workers' compensation benefits extends to temporary workers who qualify as "special employees." Volb v. G.E. Capital Corp., 139 N.J. 110, 116 (1995).
In Volb, the Court reiterated that both employers will be liable for workers' compensation benefits if all three of the following factors exist:
(a) The employee has made a contract of hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work. [Ibid.]
However, as to the relative importance of the three factors, the Court held, "the most important factor in determining a special employee's status is whether the borrowing employer had the right to control the special employee's work[.]" Ibid. In evaluating the control that a special employer has over the employee, it is "well settled" that the court is to view as "determinative  the right of control" held by the employer, not "the actual exercise of [it]." Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 22 (App. Div. 1988)(citing Mahoney v. Nitroform Co., Inc., 20 N.J. 499, 506 (1956)). In addition to the three factors enunciated in Volb, we have also taken into consideration whether the special employer "has the power to hire, recall, or discharge the employee," Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 (App. Div. 1967), or, whether the special employer pays the employee's wages. Ibid.; Antheunisse, supra, 229 N.J. Super. at 403; Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 577 (App. Div.), aff'd, 147 N.J. 549 (1996); but see Santos, supra, 225 N.J. Super. at, 24-25 (minimizing the importance of whether the special employer paid the employee's wages).
However, we recently noted that no single factor is dispositive and not all of the factors must be satisfied in order for a special employment relationship to exist. Walrond v. County of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006). Instead, when analyzing the existence of a special employment relationship, the court should look at the factors in light of the totality of the circumstances. See Santos, supra, 225 N.J. Super. at 22.
Plaintiff argues that the facts in Walrond are so similar to this case that the result ought to be the same. In that case, the plaintiff was a municipal police officer attending the Somerset County Police Academy for one week and serving as a duty officer for the new recruit class. He was paid by his municipality, and there was no financial reimbursement from the facility whatsoever. As a duty officer, the plaintiff would provide general guidance to the new recruits; however, since the plaintiff was not certified in physical training, he did not provide direct supervision of the recruits during their outdoor calisthenics and other exercises. On the day in question, as the plaintiff observed the recruits in training, a storm erupted and the instructors in charge terminated the session; the plaintiff was lowering the flag from a nearby flagpole when he was struck by lightning and suffered significant injuries. Id. at 232-34.
In reversing the trial judge's grant of summary judgment to the County pursuant to N.J.S.A. 34:15-8, we noted that the plaintiff could not be considered a special employee of the County because "there [was] no compensation whatsoever flowing from the Academy either to Walrond or to [his police]
[d]department." Id. at 238. We concluded that the plaintiff was a "volunteer duty officer uncompensated by the Academy[,]" not "an employee of the Academy, special or otherwise, and he [was], therefore, not subject to the exclusivity provision of [N.J.S.A. 34:15-8]." Id. at 241.
Despite plaintiff's argument to the contrary, the facts here are significantly different from those presented in Walrond, and thus compel a different result. In that case, the plaintiff was invited by the police academy, along with other members from surrounding police departments, to provide general guidance to the new recruit class. There was no partnership, implied or express, between the plaintiff's regular employer and the County.
Here, it is undisputed that Operation DIGG was a "partnership established between the New Jersey State Police and the [NPD][.]" Plaintiff was assigned to be part of this partnership for the entirety of its term, not just for a week. Most importantly, plaintiff was taking direction on a daily basis from the NPD supervisors he worked with, and was performing the work as dictated by Newark through its police department. While plaintiff asserts that his role in the task force was merely an extension of his State Police duties, we have previously noted that the determination of whether the work is essentially that of the borrowing employer is dependent upon whether the assigned work was an integral part of the borrowing employer's regular business. Rossnagle v. Capra, 127 N.J. Super. 507, 517 (App. Div.), certif. granted, 64 N.J. 314 (1973), aff'd, 64 N.J. 549 (1974). In this case, the work performed by Operation DIGG was unquestionably an integral part of the NPD's daily activities.
While we acknowledge Newark did not pay plaintiff's salary, nor provide direct or indirect remuneration to the State Police, we nonetheless conclude that considering the totality of the circumstances, plaintiff was not a volunteer, as was the plaintiff in Walrond, but rather was a special employee within the contemplation of N.J.S.A. 34:15-8. We therefore affirm the motion judge's grant of summary judgment to Newark on this ground.
For the sake of completeness, we also choose to consider briefly the second contention raised by plaintiff. He argues the motion judge erred in granting summary judgment to Newark because he had failed to demonstrate a prima facie case that a dangerous condition existed at the intersection on the night in question. We disagree, and affirm the motion judge's grant of summary judgment to Newark on these grounds also.
Plaintiff claims Newark was negligent in the "care, custody, control and safeguarding of the roadway" where the accident occurred. Plaintiff argues that the spreading of sand at the intersection after the prior accident, compounded by the lack of any warning devices, resulted in a dangerous condition that contributed to the injuries he suffered from the accident.
In order to prevail on this claim, plaintiff needed to demonstrate a prima facie case that satisfied all the elements of N.J.S.A. 59:4-2. "[A] plaintiff must establish the existence of a 'dangerous condition,' that the condition proximately caused the injury, that it 'created a reasonably foreseeable risk of the kind of injury which was incurred,' that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was 'palpably unreasonable.'" Vincitore v. Sports & Expo. Auth., 169 N.J. 119, 125 (2001).
Although initially denying summary judgment on this ground, the motion judge, upon reconsideration, concluded that plaintiff had failed to provide any testimony, either from a fact or expert witness, linking the presence of sand with the occurrence of the accident or some exacerbation of plaintiff's injuries. Absent a showing by plaintiff that the sand was (1) a dangerous condition that (2) proximately caused plaintiff's injuries, she reasoned Newark was entitled to the general immunity provided by N.J.S.A. 59:2-1.
Plaintiff argues that the motion judge erred in finding that he could not prove proximate cause without expert testimony. He argues that expert opinion was unnecessary because the effect of sand on the roadway is a subject "no more esoteric than [the effect of] water, oil or ice[,]" and, thus, within the common knowledge of jurors.*fn4
We disagree. We first note that it is common knowledge that sand is frequently used to increase the traction upon a road surface particularly when some other substance such as ice or oil is already on the pavement. More importantly, plaintiff cannot demonstrate without expert testimony how the presence of the sand contributed in any way to the occurrence of the accident in the first place. In other words, it is undisputed that plaintiff's vehicle was struck by the Jones vehicle as it ran a stop sign at a high rate of speed. There is not a scintilla of evidence that would permit the conclusion that the accident would have occurred in any different fashion if the sand was not present. Nor can plaintiff demonstrate that the presence of the sand in any way altered the course of the vehicles after impact, causing his automobile to strike the telephone pole as it did, and thus resulting in some exacerbation of his injuries. In short, the mere fact that sand was present at the intersection allows neither the conclusion that a dangerous condition existed, nor that such a condition proximately caused the accident or plaintiff's injuries.
Because we affirm the grant of summary judgment dismissing plaintiff's complaint against Newark, we dismiss the cross-appeal filed by the City as moot.
Affirmed; the cross-appeal is dismissed.