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Silva v. Soderstrom


March 27, 2008


On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-2774-04.

Per curiam.


Argued March 10, 2008

Before Judges S.L. Reisner and Baxter.

Plaintiff Cecilia Silva appeals from two trial court orders dated May 12, 2006, and March 29, 2007, granting summary judgment, respectively, in favor of defendants Coldwell Banker Realty and its agent Rosaleen Light-Newby (realtor), and defendants Dan's Kitchen, its owner Dan Waters and his wife Donna Fahy-Waters.


These are the most pertinent facts. On February 5, 2004, the realtor was holding an open house for other realtors, as part of an effort to sell a multi-million dollar house. The realtor arranged for a catered afternoon tea during the open house. She hired Dan's Kitchen to cater the tea.

Plaintiff primarily worked as a cleaning person, and Dan's Kitchen (Dan's) was among her many cleaning clients. However, on occasion she also worked for Dan's as a catering waitress on an hourly basis, for which she was paid in cash. She was working in this latter capacity at the afternoon tea. At the house, the catering truck was parked in the driveway, which was partially covered with ice. Plaintiff was well aware of the ice, because she asked Dan Waters to move the catering truck to a less icy location. He declined because other vehicles were parked behind his truck. While bringing a box out to the truck, plaintiff fell on the ice and was injured. She sued the homeowner, Soderstrom, as well as the realtor and the caterer. She settled with Soderstrom. The other defendants moved for summary judgment.

With respect to the realtor, in an oral opinion of May 12, 2006, the trial judge distinguished Hopkins v. Fox & Lazo Realty, 132 N.J. 426 (1993), which imposes a duty on a realtor to warn customers of dangerous conditions in a house the realtor is showing. The judge reasoned that plaintiff was not a customer but rather was hired to provide services to the realtor. He also reasoned that the realtor had no duty to warn plaintiff, because plaintiff was aware of the icy driveway, "the nature of the attendant risk was obvious to the plaintiff," and she "had a greater opportunity to exercise care than that of the defendant/broker."

In an oral opinion placed on the record on March 29, 2007, the court granted summary judgment to Dan's Kitchen, its owner and his wife, based on the bar of the Workers' Compensation statute. The judge concluded that plaintiff "was an employee of the defendant. He instructed her . . . what to do with respect to the catering. She was a waitress and she followed his instructions."


We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendants to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Viewing the record in that light, we conclude that summary judgment was properly granted to the realtor defendants. We affirm the May 12, 2006 order, substantially for the reasons stated by the trial judge in his oral opinion. We add only the following comments. Hopkins does not impose on a realtor a duty to remedy dangerous conditions at the premises where an open house is being held. Rather, Hopkins imposes a limited duty to warn customers of dangerous conditions. Hopkins, supra, 132 N.J. at 448. Even if Hopkins could be extended to persons hired to provide services to the realtor, an issue we need not address here, Hopkins would not be on point because, as the trial judge noted, plaintiff was already aware of the icy condition of the driveway. Therefore, she needed no warning.*fn1 See Tighe v. Peterson, 175 N.J. 240, 241 (2002); Jiminez v Maisch, 329 N.J. Super. 398, 403 (App. Div. 2000).

We turn next to the issue of whether plaintiff was an employee of the caterer such that her negligence lawsuit would be barred by the Workers' Compensation Act, N.J.S.A. 34:15-8. The Act is to "be construed liberally, 'in order to bring as many cases as possible within the coverage of the act.'" Kertesz v. Korsh, 296 N.J. Super. 146, 157 (App. Div. 1996)(citation omitted). Moreover, the rule of liberal construction applies whether a plaintiff is seeking coverage or is seeking to avoid application of the Act in order to bring a negligence claim against the employer. Sloan v. Luyando, 305 N.J. Super. 140, 147 (App. Div. 1997).

To determine whether a claimant is an employee, the courts use two tests, the control test, and the relative nature of the work test. "These two tests are basically designed to draw a distinction between those occupations which are properly characterized as separate enterprises and those which are in fact an integral part of the employer's regular business." Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 407 (App. Div.), certif. denied, 130 N.J. 6 (1992).

Two tests have developed to determine whether a person is an employee or an independent contractor: (1) the "right to control test" and (2) the "relative nature of the work" test. Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 407 certif. denied, 130 N.J. 6 (1992). These tests have developed to assist in drawing a line "between those occupations which are properly characterized as separate enterprises and those which are in fact an integral part of the employer's regular business." Ibid. In recent years "[t]he courts have placed a greater reliance upon the relative nature of the work test," than upon the control test. [Auletta v. Bergen Center for Child Development, 338 N.J. Super. 464, 471 (App.

Div.), certif. denied, 169 N.J. 611 (2001).

The control test examines the employer's ability to direct the manner in which the person performs the work, but does not require that the employer actually exert control in any detail:

"Under the control test the actual exercise of control is not as determinative as the right of control itself . . . because, in many instances, the expertise of an employee precludes an employer from giving him any effective direction concerning the method he selects in carrying out his duties." The determination depends upon whether the employer had "the right to direct the manner in which the business or work shall be done, as well as the results accomplished."

[Id. at 471-72 (citations omitted).]

The alternate test examines the relationship between the individual and the employer's business:

"Where the control test is not accepted as the dispositive factor, the focus then turns to the relative nature of the work test in deciding whether plaintiff is an employee or independent contractor." Kertesz, supra, 296 N.J. Super. at 154. Under the "relative nature of the work test" a court must determine (1) whether the work performed by petitioner was an integral part of the regular business of defendant; and (2) whether petitioner demonstrated "substantial economic dependence" upon the employer. Sloan v. Luyando, 305 N.J. Super. 140, 148 (App. Div. 1997)(citing Caicco v. Toto Brothers, Inc., 62 N.J. 305, 310 (1973)). If this type of relationship existed then petitioner established he was an employee. [Id. at 472.]

Because the purpose of applying the tests is to maximize Workers' Compensation coverage, satisfying either test will result in coverage under the Act. See Ibid.; Kertesz v. Korsh, supra, 296 N.J. Super. at 154.

Plaintiff contends that as an occasional waitress, she had no economic dependence on Dan's. Her primary employment was cleaning houses, and in that capacity she only cleaned Dan's premises once a week as one of thirty or forty customers. Defendants contend that the evidence satisfies the control test, because Dan had the right to, and did, direct the manner in which plaintiff performed her job.

In answers to interrogatories, plaintiff described the happening of the accident as follows. "On February 5, 2004 I was employed by Dan's Kitchen . . . to help cater an open house. . . . My boss, Dan Waters, saw me fall. . . " In her deposition, she admitted that Dan told her what to wear on the job, when to come to work and where to go. She admitted that Dan told her when to bring the food trays inside the house. She also agreed that she "didn't have any control over what type of work you were doing. It was strictly up to Dan what you would be doing." Dan supplied all of the equipment and food. She agreed that Dan instructed her as to "the way he wanted" her to set the tables and clean up afterward. If she placed a tray somewhere that Dan did not want it to be, "[h]e told me to move it where he wanted." She also agreed that "every time you did a waitressing job including this one for Dan you were working for him and he was your boss."

When asked how many waitressing jobs she had done for Dan she responded "Several. I don't know how many." She was paid by the hour in cash. When asked generally "And what kind of work did you do for Dan?," she replied, "it's varied. I do cleaning, clean the kitchen, and other times I do the kitchen aide, help him cook, and do the waitress for catering."

On the other hand, in the deposition of the realtor, Ms. Light-Newby, she testified that when she called Dan to find out who had filed the lawsuit against her, she asked Dan "Well, did she work for you? Does she work for you?" Dan's response was "No, she doesn't work for me." There was no certification from Dan attesting to whether plaintiff was his employee or an independent contractor.

More significantly, the record we were provided is devoid of any legally competent evidence that Dan's actually had a policy of Workers' Compensation insurance on the date of the accident, or that the policy covered plaintiff, or that Dan had given plaintiff notice that she was covered by the policy if it existed. Plaintiff's answer to form A interrogatories indicated that "plaintiff's employer did not provide Worker's Compensation insurance."*fn2 At oral argument, counsel were notably unclear in addressing the issue of whether Dan's had workers' compensation coverage. Moreover, Dan's answer to the complaint did not plead the bar of the Act, and his statement of material facts did not assert that Dan's had a workers' compensation policy, thus raising additional questions as to whether there was a policy in effect.

Having reviewed the record, we conclude that the order granting summary judgment must be reversed, because the record contains no legally competent evidence that Dan had a workers' compensation policy in effect at the time of the accident. Further, while there is evidence that would satisfy the control test, viewing the record in the light most favorable to plaintiff, there is also some evidence that Dan did not regard her as his employee, according to admissions he made to Light-Newby. Moreover, the evidence suggests an issue, not explored by the parties, as to whether plaintiff may have been a casual employee for purposes of the job as a catering waitress. See N.J.S.A. 34:15-36.*fn3 While we imply no view as to the ultimate outcome of the proceedings on remand, the matter must be remanded because the current record is insufficient to support summary judgment for Dan's and its owner. We affirm the dismissal of the complaint against Donna Fahy-Waters, because there is no evidence that she had any connection to the accident.

Finally, although it may be premature, we note that even if plaintiff's negligence claim is properly dismissed, she may still have the right to file a workers' compensation claim, as we indicated in Sloan, supra, 305 N.J. Super. at 151.

Affirmed in part. Reversed and remanded in part.

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